[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> MG, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 31 (Admin) (23 January 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/31.html Cite as: [2018] EWHC 31 (Admin) |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
R (on the application of MG) |
Claimant |
|
- and - |
||
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mr David Mitchell (instructed by Government Legal Department) for the Defendant
Hearing dates: 28 November 2017
____________________
Crown Copyright ©
Ms Mulcahy QC :
Introduction, Issues and Conclusion
i) Whether the Defendant's refusal to treat the Claimant's various sets of further submissions as fresh claims within the meaning of paragraph 353 of the Immigration Rules ("paragraph 353") was unlawful;
ii) Whether the Defendant unlawfully detained the Claimant under the Immigration Act 1971 from 11 February 2015 until 9 May 2017 when she was released (pursuant to the grant of bail on 4 May 2017 and the provision of accommodation under section 4 Immigration and Asylum Act 1999).
The Factual Background
"The medical practitioner also gave specific mention to you having nightmares and flashbacks and having been diagnosed with PTSD. Also, you feel you cannot escape this as marks on your body remind you of your past. However, the alleged incidents happened in the early 80's, over 20 years ago."
"This review has been completed in light of a Detention Centre Rule 35 report dated 10 February 2015… The information contained in the report has been fully considered and the decision to detain has been reviewed. Account has been taken of [the Claimant's] claim to have been ill-treated in the early 80's which resulted in the injuries as indicated in the information provided in the Rule 35 report dated 10 February 2015. It is noted however that the claim is the same as that considered in [the Claimant's] previous asylum claim. It is the case that her asylum claim has been refused with the First Tier appeal outcome awaited… In light of this, and the fact that [the Claimant] has provided no new evidence to warrant fresh consideration of her asylum claim, it is considered that [the Claimant's] detention should be maintained." (sic)
"26. The Appellant fears persecution if she were to return to Namibia because of her family, the lack of protection she might receive, the fact that she feels bitter and might attack her family and the fact that she cannot internally relocate. In her skeleton argument Ms Pall argues that the Appellant would face a well founded fear of persecution on grounds that she fears destitution on return to Namibia and that she will not receive adequate treatment in light if (sic) her serious medical conditions.
27. I do accept that the Appellant may have suffered in the past at the hands of her family and neighbours. The reports that I have before me confirm that this has had a very damaging effect on her and may have lead (sic) to her alcohol abuse and subsequent behaviour.
28. I cannot find that the Appellant's fear of her family on return is well founded. As the Appellant has said in interview she is now grown up and they would not be able to hurt her anymore, she says that she will stand up for herself. She is in regular contact with her daughter and grandmother. She has also said that her family will not seek her out.
29. She may feel very bitter but she has taken steps to control her behaviour as is reflected in the psychiatric report. She has also given up alcohol. There is no reason now why as a mature adult she should fear that she would destroy members of her family.
30. There are two medical reports. Dr Naguib concludes that in September 2011 the Appellant did not show any evidence of formal mental illness and therefore was not in need of psychiatric treatment or further assessment in hospital. Dr Stamps' report also found that she did not display symptoms consistent with a diagnosis of post traumatic stress disorder but to have enduring personality change after a catastrophic experience and should be referred for counselling.
…
33. She is a grown-up woman who can live independently and make her own way in Namibia….
…
37. The appellant showed me a few cards and photos and messages that she has sent her daughter in the UK. However, it is that (sic) difficult to see how much contact they have had since she was born in 2009. The relationship was turbulent with her daughter's father and the appellant left permanently in 2010 when she was drinking heavily. I have not been given any further details of her relationship with her daughter."
38. In the circumstances I cannot be persuaded that the Appellant has a genuine and subsisting relationship with her daughter it is in the child's interest to remain with her father (sic). The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits. Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.
39. She has one daughter in Namibia with whom she could be reunited. Therefore I cannot find that there would be breaches of Article 8 were she to be removed."
"Your client's claim to be a victim of modern slavery
On 11 December 2015, a decision was made to make a negative decision, in regards to your client's claim to be a victim of modern slavery.
In support of your client's claim, you provided a psychiatric report, from Dr Cornelius Katona, dated 2 November 2015. This report summarises an assessment, conducted by Mr Katona at Yarl's Wood Immigration Removal Centre (IRC), on 22 October 2015. In this report, Dr Katona concludes that your client suffers from Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder (BPD). However, it is noted that you refused, on two occasions, to provide the un-redacted notes from the assessment; a satisfactory explanation for these refusals has not been forthcoming.
As your client has failed to provide any new or compelling evidence, there are no reasons to suggest that we should depart from the findings in our letter of 11 December 2015.
Your client's mental and physical health needs
….
Your client's medical records, which covers the period January 2015 to 5 February 2016, supplied by Healthcare at Yarl's Wood IRC, shows that, at present, your client is not prescribed any anti-depressants. However, it is noted that your client regularly attends well-being sessions within the IRC. It is also noted that on 3 December 2015, your client attended an appointment within Healthcare, where a mental health care review was conducted. Your client's medical records state that they were unclear why your client had been referred to the Mental Health team. The conclusion from this review was that your client should continue to attend well-being sessions.
These medical records further show that your client has attended four psychological well being assessments, on 24 December 2015, 30 December 2015, 13 January 2016 and 25 January 2016. On each occasion, the conclusion was that your client should continue attending well-being sessions. Your client's mental and physical health is regularly monitored, and treatment is provided when deemed necessary.
…
Whilst your client has provided a psychological report, which claims that she has PTSD and BPD, her medical records indicate that she is not currently receiving any treatment for these conditions. As such, any claim that she will require treatment in the future is purely speculative; therefore, the Tribunal findings remain relevant.
It the absence of evidence to the contrary, there are no reasons to suggest that we should depart from our previous findings."
"Your claims regarding your mental health were fully considered in our letters of 13 October 2014, 5 October 2015 and 3 March 2016, and by the Tribunal on 13 February 2015.
You claim to suffer from Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder (BPD), and have provided a medical report from Dr Katona (sic), dated 2 November 2015, which supports this claim. However, as detailed in our letter of 3 March 2016, you are not currently receiving any treatment for either condition, despite your attendance at regular psychological well-being sessions, within Healthcare at Yarl's Wood IRC. As such, any suggestion that you will require treatment in the future is purely speculative.
Nevertheless, should you require it, as detailed in our letter of 13 October 2014, psychological treatment is available in Namibia.
You have provided no new, or compelling information, which would suggest that we should depart from our, or the Tribunal's, findings."
"You have submitted a plethora of documents which you claim is evidence of your client's relationship with her daughter, including evidence that your client has received visits from her daughter whilst in detention, and cards and letters, to and from your client and [the Claimant's daughter] and her former partner….
Whilst it is accepted that the evidence provided does indicate that your client does have some form of relationship with her daughter; your client has been absent for almost all of her daughter's life and as such, any relationship they do have will be extremely limited in nature.
Nevertheless, as stated by the Immigration Judge in your client's appeal against deportation: "Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh".
Your client has provided nothing which would suggest we should depart from the Tribunal's findings.
The best interests of your client's daughter
The best interests of your client's daughter...were fully considered in our letter of 13 October 2014, in which it was found that the best interests of the child were served by her remaining in the United Kingdom with her father, who has cared for her since her birth. Further to this, in your client's appeal against deportation, the Immigration Judge found: "…it is in the child's interests to remain with her father. The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits."
Safeguarding and promoting the welfare of children is defined in the guidance to section 11 of the Children Act 2004 as:
"protecting children from maltreatment;
- preventing impairment of children's health or development (where health means 'physical or mental health' and development means 'physical, intellectual, emotional, social or behavioural development');
- ensuring that children are growing up in circumstances consistent with the provision of safe and effective care;
- and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully."
There is no evidence before us to conclude that your client's presence is needed to prevent [the Claimant's daughter] from being ill treated, her health or development being impaired, or her care being other than safe and effective.
There is no suggestion that [the Claimant's daughter] relies on your client, either emotionally, or financially. There is no evidence which would indicate that your client has provided financially towards the care of [the Claimant's daughter], either currently, or in the past.
It is acknowledged that your client's absence will likely result in some negative emotional impact on [the Claimant's daughter], but she will continue to live with her father, who will support her as she adapts to life without face-to-face contact with her mother. [She] will continue to attend school where she will have the stability and support which is necessary to complete her education.
As detailed above, the Immigration Judge at appeal found that there is no evidence that your client's deportation would result in your client losing all contact with [her daughter]. It is noted that your client's eldest daughter,…, remains in Namibia, in the care of her maternal Great Grandmother, and by your own admission, your client has maintained contact with [the Claimant's elder daughter], since her arrival in the United Kingdom.
It is acknowledged that indirect contact is not the same as remaining in the family home, or even living separately, but in the same country, however, it is considered that your client could maintain contact with [her daughter], if she wishes. Further to this, there is no evidence that [she] would be unable to visit your client in Namibia. Consequently, it is not accepted that there are factors in your client's case that would be considered very compelling if [the Claimant's daughter] remains in the United Kingdom without her.
In the case of your client and her daughter, it is not considered that there are insurmountable obstacles to family life with them being able to continue outside of the United Kingdom, nor has your client provided any evidence which would demonstrate that there are compelling circumstances which will effect (sic) [the Claimant's daughter], if she remained in the United Kingdom. [She] is a British citizen and can continue to enjoy all the benefits afforded to her as such, upon your client's return to Namibia.
Whilst our decision to deport your client does not prescribe any outcome, or requirement for [the Claimant's former partner and daughter], this decision means that your client and [the Claimant's former partner] are required to make a decision as to whether he and [the Claimant's daughter] should accompany your client to Namibia, or remain in the United Kingdom.
In the absence of any evidence to the contrary, there are no reasons which would suggest we should depart from ours or the Tribunal's findings. "
"You and your client have submitted a number of documents to support your claim that your client has maintained contact with her daughter….during her imprisonment and detention. However, whilst it is accepted that the evidence provided does indicate that your client does have some form of relationship with her daughter; your client has been absent for almost all of her daughter's life, and as such, any relationship they do have will be limited in nature.
It is noted that in the Witness Statement of [the Claimant's former partner], dated 11 April 2016, it states: "I have now visited M with [the Claimant's daughter] at Yarlswood IRC between 4 – 5 times. The most recent visit was on 5 April 2016. We spend 3 hours at Yarlswood IRC, between 2 pm and 5 pm and [the Claimant's daughter] is very happy playing with her mother and they complete homework together and enjoy a good family life."
It is noted that as your client has been detained since 11 May 2014, a period of almost two years, it would appear that direct contact with [her daughter] was extremely sporadic. As such, any relationship your client had with [her daughter] is assumed to have been maintained via in-direct methods of communications. This is at odds with your claim that your client would be unable to maintain contact with [her daughter], using these same methods of contact, upon her return to Namibia.
Nevertheless, as stated by the Immigration Judge in your client's appeal against deportation: "Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh" .
Your client has provided nothing which would suggest that we should depart from the Tribunal's findings.
Whilst it is accepted that you have provided a number of document's (sic) which have not previously been submitted, it is not accepted that this evidence significantly differs from that previously considered by the Secretary of State and the Tribunal; as such there are no reasons apparent which would suggest that we should depart from our, or the Tribunal's findings, in respect to your client's claims to family life in the United Kingdom.
….
Note is also taken of the letter written by [the Claimant's daughter], in which she expresses that she misses her mother, and her wishes for her mother to be released from Yarl's Wood Immigration Removal Centre.
Whilst it is accepted that your client's deportation will have a negative emotional effect on [her daughter], any impact is a direct result of your client's actions.
Your client has been convicted of a very serious offence, one which fully engages the public interest in securing her removal, and none of the claims made constitute very compelling circumstances sufficient to outweigh that interest.
It is noted that you have provided evidence of your client's contact with [her daughter] during her detention; however, this evidence does not suggest that the nature of her relationship with [her daughter], has strengthened, or differs significantly from that which was considered by the Tribunal, which found that claims to family life with a child did not outweigh the public interest in securing your client's deportation..
Your client has not lived as part of family unit with [her daughter] since November 2010, and since this date, she has spent 3 years and 3 months, either serving her custodial sentence, or detained. It is accepted that prior to her imprisonment, and between periods of detention, your client utilised her visitation rights, as directed by the Court Order; however, by [the Claimant's former partner's] own admission, your client has only seen [her daughter] four or five times in the past two years.
There is no evidence which would suggest that [her daughter] relies on your client to meet her day to day care, particularly given your client's absence in her life, due to imprisonment and subsequent detention. There is no evidence which would suggest that your client provides any unique or essential care for [her daughter] that she would not be able to receive from an alternative source.
Your client has provided nothing which would suggest that she provides for [her daughter] financially, or that she provides any unique, or essential care her. It is noted that due to your client's own actions, she has been removed from enjoying a relationship with her daughter, for a significant period of time.
As per the case of Devaseelan, your client has not provided any new, or compelling evidence, which would suggest that we should depart from the Tribunal's settled findings.
….
You claim that our decision to deport your client the Secretary of State has failed to take into account [the Claimant's daughter's] rights under Article 24 of the EU Charter of Fundamental Rights.
…
As detailed above, the best interests of your client's daughter,…., have been fully considered, and it has been concluded that her best interests are served by remaining in the United Kingdom with her father.
As detailed above, the Tribunal found: "Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.
Your client's deportation, in accordance with primary legislation, remains in the public interest and no information has been provided which would suggest that we should depart from the Tribunal's settled findings.
…
It has been concluded that your client's submissions do not meet the requirements of paragraph 353 of the Immigration Rules and do not amount to a fresh claim. This is because these submissions are not significantly different from the evidence that has previously been considered."
i) The refusal to treat the Claimant's representations as a fresh claim under paragraph 353 of the Immigration Rules by way of decisions dated 3 March 2016, 10 March 2016, 6 April 2016 and 18 April 2016;
ii) The Claimant's detention from 11 February 2015 onwards.
Issues for determination
i) Is the Defendant's decision to refuse to treat the Claimant's further representations concerning her family life in the UK, most notably with her daughter, lawful?
ii) Is the Defendant's decision to refuse to treat the Claimant's further representations concerning her claim for international protection lawful?
i) Was the Defendant's response to the Rule 35 report dated 10 February 2015 lawful?
ii) Did the Defendant assess the Claimant's continued detention following the receipt of Professor Katona's report on 12 November 2015 against the correct policy?
iii) Was the Defendant's detention during the relevant period (11 February 2015 to 9 May 2017) otherwise lawful?
The legal and policy framework
Fresh Claim test (paragraph 353)
"Fresh Claims
When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
i) First, has the Defendant asked herself the correct question? In the context of a human rights case, the correct question is whether there is a realistic prospect of an Immigration Judge, applying anxious scrutiny, concluding that there will be a breach of a Claimant's human rights on his or her return home.
ii) Second, in addressing that question, has the Defendant satisfied the requirement of anxious scrutiny?
"39. In our view the second Adjudicator should treat matters in the following way.
(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the appellant's status at the time was made. In principle issues such as whether the appellant was properly represented or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.
40. We now pass to matters that could have been before the first Adjudicator but were not.
(4) Facts personal to the appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute). It must also be borne in mind that the first Adjudicator's determination was made at a time close to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the addition of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
(5) Evidence of other facts – for example country evidence may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.
41. The final major category of case is where the appellant claims that his removal would breach Article 3 for the same reason that he claimed to be a refugee.
(6) If before the second Adjudicator the appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim is in essence the same evidence as that available to the appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the appellant at the time of the first determination'. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the appellant, he must be taken to have made his choices about how it would be presented. An appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion."
Article 8 ECHR - general
"Purpose
GEN.1.1. This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection (and the applicant cannot seek leave to enter or remain in the UK as their family member under Part 11 of these rules). It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK."
"There has been debate as to whether there is a one stage or two stage test. If the claimant succeeds on an application of the new rules at the first hurdle i.e. he shows that para 399 or 399A applies, then it can be said that he has succeeded on a one stage test. But if he does not, it is necessary to consider whether there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation. That is an exercise which is separate from a consideration of whether para 399 or 399A applies. It is the second part of a two stage approach which, for the reasons we have given, is required by the new rules."
"[t]he existence or non-existence of family life for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties."
"The court would stress that while the criteria which emerge from its case-law and are spelled out in the Boultif and Üner judgments are meant to facilitate the application of Art 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case."
Article 8 and the public interest in the deportation of foreign criminals
"A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.
A398. These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and:
…
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months;
…
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;
and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported;
…
399A. This paragraph applies where paragraph 398(b) or (c) applies if –
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported."
"(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."
"The importance of the moral and political character of the policy shows that the two drivers of the decision-maker's margin of discretion – the policy's nature and its source – operate in tandem. An Act of Parliament is anyway to be specially respected; but all the more so when it declares policy of this kind."
"Section 117C(1) of the 2002 Act, as inserted by the 2014 Act, re-states that the deportation of foreign criminals is in the public interest. The observations of Laws LJ in SS (Nigeria) concerning the significance of the 2007 Act, as a particularly strong statement of public policy, are equally applicable to the new provisions inserted into the 2002 Act by the 2014 Act. Both the courts and the tribunals are obliged to respect the high level of importance which the legislature attaches to the deportation of foreign criminals."
and at [26]:
"it is important to bear in mind that the new Part 5A of the 2002 Act is framed in such a way as to provide a structured basis for application of and compliance with Article 8."
Article 8 and the best interests of a child
"(1) The best interests of a child are an integral part of the proportionality assessment under Article 8 ECHR.
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration.
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant.
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations are in play.
(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations.
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an Article 8 assessment.
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."
"the status of the well-being of the children as a primary consideration did not require the Secretary of State in every case to consider the children's best interests first and then to address other considerations which might outweigh those interests. There is nothing to bar the official who acts for the Secretary of State from considering the various issues, including the proportionality exercise under article 8 ECHR before drafting the decision letter. The official set out the Secretary of State's conclusion before explaining the reasons for that conclusion. It is important to read the decision letter as a whole and to analyse the substance of the decision."
Trafficking
Unlawful detention
"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending–
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions."
"iii) Subject to the limits imposed by the Hardial Singh principles, the power to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the court. The role of the court is supervisory, not that of a primary decision-maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power conferred on him by the statute."
"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care."
"Because each case will be different, it is not possible to provide definitive guidance on when a rule 35 report will constitute independent evidence of torture. However, it must have some corroborative potential (it must "tend to show") that a detainee has been tortured, but it need not definitively prove the alleged torture. The following pointers may assist:
• A report which simply repeats an allegation of torture will not be independent evidence of torture;
• A report which raises a concern of torture with little reasoning or support or which mentions nothing more than common injuries or scarring for which there are other obvious causes is unlikely to constitute independent evidence of torture;
• A report which details clear physical or mental evidence of injuries which would normally only arise as a result of torture (e.g., numerous scars with the appearance of cigarette burns to legs; marks with the appearance of whipping scars), and which records a credible account of torture, is likely to constitute independent evidence of torture."
"Very exceptional circumstances could arise where, for example, release would create an unacceptably high risk of absconding, of reoffending or of harm to the public. There will not be very exceptional circumstances in the case of a routine detention absent other reasons, e.g., a removal without a high absconding risk or harm issue — see Ch. 55 of the EIG. The full circumstances applicable to the detainee and their reasons for detention must be considered, in order to establish whether there are very exceptional circumstances that mean detention is appropriate notwithstanding the rule 35 report.
In some cases where the rule 35 report is accepted as independent evidence of torture, there may nevertheless be further information which renders the overall account of torture wholly incredible. Such information may form the basis of an assessment that there are very exceptional circumstances making detention appropriate.
For instance, it may be right to detain in very exceptional circumstances if, despite the existing independent evidence of torture, there is a court determination which was made with sight of a full medico-legal report and which dismisses the account of torture, or there is evidence such as visa match evidence which very clearly shows that at the time the detainee claims to have been tortured in one location, he was in fact enrolling biometrics and applying for a visa in another location. Because genuine confusion may be an issue, caution must be exercised in such a consideration."
"69 ….The policy gives some help with what may inform whether there are very exceptional circumstances. It refers to the need to weigh risks to the public of releasing convicted offenders with particular care. A very high, rather than routine, risk that the detainee will abscond might well also provide a proper basis for maintaining detention. The rubric is such that a host of factors may come into play."
i) In relation to the first example given by the Process Guidance (the first bullet point at paragraph [103] above) that "the mere recitation of an account of torture coupled with the fact that the doctor does not find it inherently incredible would not in my view be enough…The position is no different even if the doctor also describes injuries or scarring which are visible on the body of the patient but does not relate them in any way to the account" ([32-33]).
ii) In relation to the second example given by the Process Guidance (the second bullet point at paragraph [103] above) that "the existence of commonly found scars coupled with a mere assertion of torture would not in general be enough". However, "a reasoned explanation of why the scarring is consistent with the account does lend expert support to the account (and I do not read the example as suggesting otherwise)". Therefore "unless the account of the detainee is inherently incredible so that there is no proper claim of torture capable of being corroborated, medical evidence consistent with the account will in my view generally satisfy the requirement" (at [41]).
iii) In relation to the third example (the third bullet point at paragraph [103] above), "even with unusual scarring, the account of torture must be credible in the sense of being capable of belief. If the account is inherently incredible, that will be likely fatally to undermine the conclusion that the scarring was caused by torture" (at [50]).
"The fact that the Tribunal has found the evidence unconvincing does not alter its status as independent evidence of torture. It does not cease to be evidence because it, or evidence to the same effect, was not accepted. As Burnett J noted in EO's case [2013] ACD 116 para 68 the underlying credibility of the detainee is irrelevant to the question whether something amounts to independent evidence of torture. Credibility is critical when evaluating the claim, but as Burnett J observed, "that does not mean that a piece of evidence which supports his central claim is any less 'independent evidence' even if, in the end, the claim is rejected".
The parties' cases, analysis and conclusions
Ground 1: Fresh Claims
(a) Fresh claim – relationship between Claimant and her daughter
"the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months"
"37. The Appellant's daughter in the UK is in the custody of her father. Her daughter is a British citizen and I have noted the details of the Contact Order. The Appellant showed me a few cards and photos and messages that she has sent her daughter in the UK. However, it is that difficult to see how much contact they have had since she was born in 2009 (sic). The relationship was turbulent with her daughter's father and the Appellant left permanently in 2010 when she was drinking heavily. I have not been given any further details of her relationship with her daughter.
38. In the circumstances I cannot be persuaded that the Appellant has a genuine and subsisting relationship with her daughter it is in the child's interest to remain with her father (sic). The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits. Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.
39. She has one daughter in Namibia with whom she could be reunited. Therefore I cannot find that there would be breaches of Article 8 were she to be removed."
i) The Defendant was presented with evidence from the Claimant's former partner and material originating from the Claimant's daughter and sent to the Claimant which was not before the First-tier Tribunal (the Tribunal only had evidence of correspondence sent from the Claimant to her daughter) and did raise the issue of whether there existed a relationship between the Claimant and her daughter in circumstances where the Tribunal had stated that it was not persuaded that there was any genuine and subsisting relationship between the Claimant and her daughter. The Defendant accepted that there was "evidence of a relationship" in her response dated 6 April 2016 (with it being implicit, albeit not entirely without doubt, that she also accepted that the requirement for such relationship to be genuine and subsisting was met). Accordingly, the Tribunal's decision which had rested on the two limbs (no genuine and subsisting relationship but even if there was, it was not of the depth whereby it would be unduly harsh on the Claimant's daughter for her mother to be deported) now rested only on one.
ii) In relation to the issue of whether it would be "unduly harsh" on the Claimant's daughter for her mother to be deported, whilst the Tribunal had concluded that even if a relationship existed it was not of a depth to outweigh the public interest in deportation, the question of the actual depth of that relationship, albeit one where personal contact was inevitably sporadic in light of the fact the Claimant was in immigration detention, had to be further considered in light of the new evidence and the question of the negative emotional impact and the best interests of the child assessed on the basis of anxious scrutiny. Whilst Mr Mitchell orally submitted on behalf of the Defendant that it was "very difficult to see how an Immigration Judge would find the quality of the relationship satisfied the test" the question to be considered was whether there is any realistic prospect of the Claimant succeeding before an Immigration Judge bearing in mind the need for anxious scrutiny. There was at least some evidence regarding a greater depth of relationship and including evidence which emanated from the Claimant's daughter herself than had been before the Tribunal when making its decision on 12 February 2015. I am not satisfied that such evidence was properly weighed in terms of its significance, given the Defendant's focus on the quantity of direct contact rather than on the depth of the relationship.
iii) It is also unclear from the decision letters what consideration was in fact given to the evolving situation where the Claimant's former partner's intentions regarding where his daughter would live and as to contact with her mother had changed. The Claimant's former partner had been the principal witness in the criminal trial that had led to the Claimant's imprisonment but this had all changed by April 2016 at which time he was submitting evidence in support of a continued relationship between the Claimant and her daughter. There is no reference to this change of position in the Defendant's response letters.
iv) Whilst it is clear that Article 24(3) of the Charter of Fundamental Rights was considered by the Defendant, this section of the response refers back to the best interests of the child reasoning and was considered essentially through the prism of section 11 Children Act 2004. It is not clear to me from the responses to what extent the Defendant did take into account the Claimant's daughter's own free-standing rights, including in relation to Article 24(3) which states that every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his/her parents, unless that is contrary to his/her interests.
v) Further, whilst the Defendant accepted that there was a negative emotional impact on the Claimant's daughter, she then stated that this was the product of the Claimant's own actions and that the predominant issue was the public interest in deportation. It is not clear whether and to what extent that admitted negative emotional impact was assessed against the "unduly harsh" criterion (i.e. whether it would be unduly harsh for the Claimant's daughter to remain in the UK without her mother following deportation) as opposed to focusing on the reason why that impact had arisen.
(b) Fresh protection claim
"It is considered that you have given inconsistent information about your life in Namibia and that the accounts you have given, regarding the "abuse" you claim to have suffered in relation to being treated like a domestic worker, cannot be wholly relied upon as being truthful or accurate" and that the Claimant's account of her time in the UK "significantly undermines your claim to have been trafficked."
"Professor Katona has concluded that your clinical presentation is in keeping with your having been trafficked. Professor Katona may have been unaware that you had visited Norway and that you had control of your own travel documents before arriving in the UK in April 2006. He states that you have given "a clear account of being persuaded to come to the UK for your own benefit and that being forced to work against your will and being restricted in her movements, with her protests ignored and the promises made to her being unfulfilled" (sic) This is refuted. There is no clear account given about your journey to the UK, except where you have stated that you had visited Norway first and had made an independent choice not to stay there.
In conjunction with his statement that, "… nothing in my summary of [the Claimant's] account should be taken as a finding of fact in relation to her fresh claim against deportation from the UK" Professor Katona's conclusion that your clinical presentation is in keeping with your having been trafficked is not accepted because there is no evidence that your case meets the definitions of trafficking or modern slavery."
"28. I cannot find that the Appellant's fear of her family on return is well founded. As the Appellant has said in interview she is now grown up and they would not be able to hurt her anymore, she says that she will stand up for herself. She is in regular contact with her daughter and her grandmother. She has also said that her family will not seek her out."
i) There was a negative reasonable grounds decision in relation to trafficking by the Competent Authority dated 11 December 2015 which was very detailed in its reasoning and took full account of Professor Katona's report. This decision was not challenged by the Claimant by way of judicial review. Whilst I fully accept that the fact that decision was not challenged by the Claimant is not determinative because the absence of a challenge is not a bar to a new First-tier Tribunal reaching a conclusion on a full examination of the evidence available, it is nonetheless significant that the Claimant did not herself seek to challenge the negative decision.
ii) Professor Katona made very clear that he had relied solely on the Claimant's account and had not seen any medical records. His diagnosis was made on the basis of her account alone and the fact that he considered her clinical presentation was "clinically plausible".
iii) Professor Katona's report was in contrast to two previous psychiatric reports served by the Claimant in relation to the criminal proceedings where Dr Naguib and Dr Stamps concluded she did not have PTSD (albeit it is fair to say it was left open whether she might have had such a condition in the past) as well as the medical records of the Defendant assessing the Claimant's mental health whilst in detention.
iv) There were undoubtedly credibility issues arising from various changes in the Claimant's account and the refusal to release the un-redacted notes to the Competent Authority or to the Defendant.
v) Professor Katona was seemingly unaware that the Claimant had visited Norway and that she had control of her own travel documents before arriving in the UK in April 2006 and had apparently made an independent choice not to stay in Norway.
vi) Whilst it is correct that Professor Katona's report provided some evidence of formal mental illness and of symptoms of PTSD, this had to be weighed with all the evidence previously considered and also had to take account of the limitations of that report.
vii) I do not accept the Claimant's submission that the Defendant conflated issues of medical diagnosis and credibility. A diagnosis of mental illness is likely to be particularly influenced by the patient's presentation to the clinician and the history given regarding the factors alleged to have given rise to the mental illness and the symptoms experienced.
viii) Further, the First-tier Tribunal had accepted that the Claimant had suffered in the past at the hands of family and neighbours but had concluded that she was capable of living independently, had made her own way in the UK and would do so in Namibia, that her family would not seek her out and that she could relocate away from her family if necessary. These factors were unaffected by Professor Katona's report.
ix) The decision as to whether the further submissions, taken together with the previously considered material, created a realistic prospect of the Claimant succeeding before an Immigration Judge was for the Defendant and the Court can only interfere if that decision was irrational/Wednesbury unreasonable (see paragraphs 65-70 above). I am not satisfied that there was any demonstrable error in the Defendant's approach to the issue and in the circumstances of this case and I am unable to conclude that the requisite threshold has been met.
Unlawful detention
i) Was the Defendant's response to the Rule 35 report dated 10 February 2015 lawful?
ii) Did the Defendant assess the Claimant's continued detention following the receipt of Professor Katona's report on 12 November 2015 against the correct policy?
iii) Was the Defendant's detention during the relevant period (11 February 2015 to 9 May 2017) otherwise lawful?
i) the Defendant should have determined that the Rule 35 report constituted independent evidence of torture, alternatively failed to determine whether the Rule 35 report constituted independent evidence of torture, instead relying on her own decision which pre-dated the rule 35 report, most notably the decision dated 13 October 2014;
ii) the Defendant failed to give proper consideration to the report of Professor Katona and his clinical conclusions, which led to the Defendant failing to assess the Claimant's detention against the correct policy framework, that of "very exceptional circumstances". It is said that the responses dated 3 and 10 March 2016 did not consider the lawfulness of detention but rather dealt with the risk on return and insofar they rejected Professor Katona's diagnoses of PTSD and BPD, they did so unlawfully because the failure to provide the un-redacted notes of the interview did not detract from the clinical conclusions of the report. It is further said that the absence of treatment was not a sufficient reason for doubting the diagnosis bearing in mind that appropriate treatment is not available in immigration detention. It is further said that it was illogical to refer to the First-tier Tribunal's assessment which was made before Professor Katona's report and that no account was taken of that report when reviewing detention;
iii) her detention breached the Hardial Singh principles in that it was or should have been clear to the Defendant that the Claimant's removal was not imminent and because the risk of absconding and harm was repeatedly classified as high notwithstanding the Claimant's changed circumstances and support from various organisations.
i) The contention that the Rule 35 report constituted independent evidence of torture did not appear in the Amended Detailed Statement of Facts and Grounds dated 19 December 2016. The Defendant contends that the mere fact that the author of the report noted that the Claimant "may have been the victim of torture" does not amount to independent evidence of torture within the meaning of EIG 55.10. As explained in her own guidance, "Detention Rule 35 Process" "A report which raises a concern of torture with little reasoning or support or which mentions nothing more than common injuries or scarring for which there are other obvious causes is unlikely to constitute independent evidence of torture." It is stated that it is tolerably clear from Mr Turpin's detailed reasoning that it was his conclusion that the report did not constitute independent evidence of torture. Accordingly, the Defendant properly concluded that the Claimant did not come within any of the categories of detainees listed at chapter 55.10 EIG and that the issue of whether "very exceptional circumstances" existed justifying continued detention did not arise.
ii) The Defendant disputes that Professor Katona's report had been provided to her for the purpose of chapter 55.10 EIG, relying on letters from Mrs C.H. Hopper dated 3 December 2015, 26 January 2016 and 21 March 2016 indicating that it had not. Further, the Defendant contends that it was reasonably open to her to conclude that Professor Katona's report did not tend to show that the Claimant was "suffering serious mental illness which cannot be satisfactorily managed within detention" within the definition of chapter 55.10 EIG. The lawfulness of detention was considered in the Defendant's letters dated 3 and 10 March 2016. Set against Professor Katona's report, the Defendant was entitled to prefer the findings reached by the First-tier Tribunal, which accorded with her own (repeated) assessment of the Claimant's psychiatric health, as corroborated by the fact that subsequent to Professor Katona's report and in spite of her attendance at psychological well-being sessions, the Claimant had not received any treatment for either PTSD or BPD.
iii) In relation to the alleged breach of the Hardial Singh principles, the Defendant points to the fact that the Claimant was consistently assessed as posing a high risk of absconding, a medium risk of re-offending and a high risk of harm to the public and that the Claimant has made no meaningful attempt in either her amended claim or skeleton argument to challenge the accuracy of these assessments nor has she taken issue with the detailed rationale for maintaining detention consistently recorded by the Defendant both in her detention reviews / minutes and the monthly progress reports. It is further contended that the length of the Claimant's detention is a product of the fact that, as noted by the First-tier Tribunal on 15 December 2015 in relation to a bail application, she was engaged in "submitting claim after claim in an attempt to frustrate removal."
i) His reference to the Defendant's decision of 13 October 2014, and in particular paragraph 31 of that decision.
ii) His noting the fact whilst that the Claimant had reported that she had been diagnosed with PTSD, this claim was contradicted by the detailed findings in the Defendant's decision of 13 October 2014.
iii) The fact that the Claimant's erroneous claim to have been diagnosed with, and suffering from, PTSD, was predicated on the suggestion, as reported to her examiner, that she "feels cannot escape this as marks on her body remind her of her past", whereas there was no connection between any scarring and a diagnosis of PTSD which the Claimant did not have.
iv) The fact that having considered the Rule 35 report against the existing records applying to the Claimant, Mr Turpin reached a reasoned decision that detention should be maintained stating: "In the absence of any other information to the contrary, it has been concluded that your ongoing detention remains appropriate. The position of your detention will continue to be reviewed on a regular basis."