Abdul Mateen Omar Ali v The Home Office
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 12 April 2022 |
| Neutral Citation | [2022] EWHC 866 (QB) |
| Docket Number | Case No: QA-2020-000222 |
| Court | Queen's Bench Division |
[2022] EWHC 866 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
On appeal from the Central London County Court
HHJ Baucher, E00YJ364
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: QA-2020-000222
Mr G Denholm (instructed by Wilson Solicitors LLP) for the Appellant
Mr B Seifert (instructed by Government Legal Department) for the Respondent
Hearing date: 15 March 2022
Approved Judgment
Introduction
This is an appeal from the decision of HHJ Baucher (“the Judge”) in an order dated 9 November 2020 dismissing the Appellant's claim for false imprisonment in respect of his immigration detention from 17 December 2014 – 24 March 2015, a period of 98 days. Permission to appeal was granted on consideration of the papers by Martin Spencer J on 16 December 2021.
In the judgment below and in the parties' submissions, the Appellant's detention was analysed by reference to four component periods, namely:
i) 17 December 2014 – 9 January 2015: the period between when the Appellant was first detained pursuant to the Detained Fast Track (“DFT”) system and the refusal of his claim for asylum (“Phase 1”);
ii) 9 January 2015 – 11 February 2015: the period from when the Appellant exercised rights of appeal to the First-tier Tribunal (“FTT”), until the point when he became appeal rights exhausted (“ARE”) (“Phase 2”);
iii) 11 February 2015 – 28 February / 17 March 2015: the period subsequent to the fast track appeals process and before his further representations were received by the Respondent (“Phase 3”). There were two possible end dates for this period because of a dispute over when those representations were received. The Judge found that it was on the later date (“Phase 3”);
iv) 17 March 2015 – 24 March 2015: the period between receipt of the Appellant's further representations and his release on bail (“Phase 4”).
In very broad terms, the Appellant's primary two contentions were: (a) his asylum claim was never a suitable one for the DFT; and (b) as the FTT's dismissal of his appeal on 26 January 2015 was subsequently set aside by the President of the FTT on 14 October 2015 (“the setting aside order”), this had the effect of rendering his detention during Phases 2 – 4 unlawful. When granting permission to appeal, Martin Spencer J observed that Ground 6 of the grounds of appeal raised a point of principle as to the impact of the setting aside order on the legality of the detention. The issue is characterised as follows in Mr Denholm's skeleton argument: “What is the impact of an order made by the FTT setting aside an earlier decision under Rule 32 of Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI No 2604) on the lawfulness of detention that has been authorised on the assumption that the earlier appeal decision was valid”. On any view, this is a case that raised a number of difficult issues.
The claimant gave evidence at the trial, as did Mr Gardner, a Technical Specialist in Detained Asylum Casework (formerly DFT). Mr Gardner had not been involved in the Appellant's case, but he was very familiar with the DFT processes. The relevant events regarding the determination of the Appellant's asylum claim and his detention are largely documented and undisputed; as opposed to the inferences and conclusions that are to be drawn from them, which were and remain very much in issue.
After summarising the facts and circumstances, I will set out the legal framework, the grounds of appeal and then the material parts of the Judge's reasoning. In addressing the grounds of appeal my focus is upon whether the Judge fell into error in terms of her self-directions and/or her chain of reasoning. In terms of her assessment, I am conscious that she had the benefit of seeing and assessing the witnesses who gave evidence.
The material circumstances
The Appellant is a national of Afghanistan, born on 3 May 1981. On 29 November 2014 he entered the United Kingdom (“UK”) lawfully on a business visitor visa, as part of a delegation to the London Afghanistan Conference held on 3 – 4 December 2014, which he attended. The visa was valid until 5 December 2014 but the Appellant overstayed this time limit. On 9 December 2014 he claimed asylum in person at the Asylum Screening Unit (“ASU”) in Croydon. He was provided with asylum support accommodation and asked to return on 17 December 2014.
The Appellant duly returned to the ASU on 17 December 2014, when an Asylum Screening Interview took place. The Appellant indicated that he had come to the UK “to save my life” and that he had not claimed asylum on his entry to the UK as he was here for a government meeting. The following exchange of questions and answers then took place, as recorded at part 4.2 of the interview record:
“Can you BRIEFLY explain why you cannot return to your home county?
I was working in the social sector and because of that my life is in danger I was working with the youths in Afghanistan.
If the response is not clear applicant should be asked to briefly answer:
Who do you fear?
Taliban and the intelligent services
Why do you fear them?
They tried to kill me but in response they killed my nephew 17/11/2014
When did the problems begin?
What do you fear will happen to you if you return to your home country?
They will kill me”
In part 6 of the interview form, which asked whether the applicant had any documents or other evidence he wished to submit in support of his asylum application, the interviewing officer wrote “No”. The Appellant had in fact provided a number of documents that day, some of which were in Pashtu and required translation. It does not appear that he was asked any questions about the documents at that stage. The nature of the documents can be gleaned from his subsequent substantive asylum interview on 6 January 2015, when he was asked about them during the first part of the interview. In broad terms, the documents related to the work the Appellant had undertaken in or with civil society organisations in Afghanistan and to threats posed by the Taliban. In part 7 on the interview form, which inquired whether the applicant had been subject to any forced work or other form of exploitation, the interviewer wrote “Yes certificates”. It is accepted that this entry was intended for part 6 but was mistakenly written in part 7. It is also accepted that “certificates” was not an accurate description of some of the materials supplied. In answer to the questions in part 8, the Appellant did not advance reasons as to why his claim might not be suitable for a decision in around 10 – 14 days or why he should not be detained for a quick decision to be made.
On 17 December 2014, a DFT Referral Pro Forma was submitted in respect of the Appellant. The form described the basis of the asylum claim as “Fear of Taliban”. It indicated that he had no family ties to the UK, no health or behavioural issues and no allegation of torture had been made. The same day, the National Asylum Allocation Unit (“NAAU”) confirmed that the Appellant's case had been accepted in the Harmondsworth DFT. The same pro forma was completed to indicate that “on the basis of the above” a quick decision could be made and that “no further inquiries will be necessary in order to decide” the Appellant's asylum claim.
As I have already indicated, the Appellant's substantive asylum interview took place on 6 January 2015. He was questioned about the documents he had provided. Two documents said to relate to threats from the Taliban had not been translated. The Appellant explained that the screening interview record (which he had not had the opportunity to check at the time) was incorrect in noting him as saying that he feared the intelligence services as well as the Taliban. He said he had told the interviewer that he feared the Taliban because of his role in civil societies and because he had worked for the intelligence services.
The Appellant was given until the following day, 7 January 2015 to submit further representations. None were received from his then solicitors. By letter dated 9 January 2015 the Appellant's asylum claim was rejected on the basis that he had not established a well-founded fear of persecution. The decision-maker did not accept that the Appellant had worked as the head of a civil society, as he had described, or that he had been recruited by the intelligence department and faced threats from the Taliban as a result. Various discrepancies in the Appellant's accounts were identified. The letter noted that his legal representatives had not submitted translated versions of the two threatening letters the Appellant said he had received from the Taliban and thus they added no weight to his claim (para 39).
From 13 January 2015 the Appellant's new solicitors began acting for him. The same day his appeal to the FTT was lodged. The appeal was heard on 22 January 2015 before Judge of the FTT Plumptre (“Judge Plumptre”). By a written decision dated 26 January 2015 she dismissed the appeal. Judge Plumptre had sight of the documents provided by the Appellant in December 2014, plus some additional material submitted on the Appellant's behalf including an expert report from Dr A Guistozzi (although she did not find the report helpful). Judge Plumptre concluded that the Appellant had never worked for the Afghan intelligence services. She was highly critical of his credibility, describing him as “vague, evasive and unwilling to answer straightforward questions”; and she highlighted various inconsistencies in his accounts. She also considered that some of the documents that had been produced undermined the Appellant's claim and that press articles about attendees at the London Afghanistan Conference...
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