AD v The Home Office
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Patterson DBE,Mrs Justice Patterson |
| Judgment Date | 12 March 2015 |
| Neutral Citation | [2015] EWHC 663 (QB) |
| Docket Number | Case No: TLQ/13/1431 |
| Court | Queen's Bench Division |
| Date | 12 March 2015 |
[2015] EWHC 663 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Patterson DBE
Case No: TLQ/13/1431
Marie Demetriou QC and Alison Pickup (instructed by Wilsons Solicitors LLP) for the Claimant
Russell Fortt (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 24 February 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 6 November 2014 William Davis J ordered that there be a trial to determine the following preliminary issues. Those issues are whether, if the claimant proves the facts pleaded:
a) There was a breach of the statutory duty set out in paragraph 28 of the particulars of claim which give rise to an actual claim in damages for breach of EU law and, in particular, whether the relevant EU law directives were intended to confer rights on individuals;
b) Any breach by the defendant of those duties was sufficiently serious to give rise to a claim for damages;
c) There was a causal link between any such breach and the loss and damage suffered by the claimant.
The questions arise because, at paragraph 28 of his particulars of claim, the claimant alleges that from the time he claimed asylum on 13 January 2008 the defendant had a number of statutory duties to him under section 2(1) of the European Communities Act 1972. They included the following:
a) when assessing an application for refugee status or subsidiary protection status, to take into account "all relevant facts as they relate to the country of origin at the time of taking the decision on the application: including laws and regulations of the country of origin and the manner in which they are applied";
b) to apply the "safe country of origin concept" in respect of an asylum seeker only if the person "has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances";
c) to grant refugee status to him if he qualified as a refugee;
d) to grant subsidiary protection status to him if he was eligible for such status, such a person being eligible if there were substantial grounds for believing that, if he returned to his country of nationality, he would face a real risk of suffering serious harm. Serious harm includes "torture or inhuman or degrading treatment or punishment of an applicant in the country of origin";
e) to respect the principle of non refoulement.
At the hearing it was contended that, by reason of those failures, there were breaches of:
i) Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive); and
ii) Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting or withdrawing refugee status (the Procedures Directive).
If the matter is resolved in the claimant's favour then the matter will proceed to a trial of the factual issues and any remaining issues of law within a trial window starting on 27 April 2015.
The Factual Background
The following facts are taken, as it is agreed that I should for this hearing, from the particulars of claim and the contemporaneous documents.
The claimant is a Mongolian citizen who arrived in the United Kingdom on a false passport in 2004. On 13 January 2008 he was arrested by the police. The following day he claimed asylum. He was detained and transferred to the Oakington Immigration Removal Centre for his asylum claim to be processed under the detained fast track.
The claimant was interviewed about his asylum claim on 19 January 2008. He said in his interview that he had been a monk belonging to a minority Buddhist sect in Mongolia. Members of his sect were beaten and tortured by other monks because they wanted the claimant and other members of his sect to change their religious beliefs.
The claimant said that he had been repeatedly beaten by members of the majority sects because of his refusal to join them. He had been forced to eat chewing tobacco and beaten if he refused to do so. He was forced to drink large quantities of fatty soup and beaten and tied to a tree if he refused. He had been sexually assaulted by a group of monks from the majority sect in front of some children whom he was teaching. That treatment continued until he left the monastery in February 2003.
The claimant had been reported to the police by members of the majority sect for stealing some antique religious statues from the monastery. He received a summons to attend Bayangol police station in June 2003 as a result of the investigation into the alleged crime. Later, he received a summons to attend court but did not do so. He was innocent of the allegation but five or six members of the majority sect had signed statements saying that he was responsible for the theft. The claimant was afraid that he would be sentenced to a long term of imprisonment.
On 26 January 2008 the claimant's legal representatives, the Immigration Advisory Service, submitted further representations to the defendant enclosing documents received from Mongolia, namely, a press report relating to the theft of the statues and a court summons dated 19 August 2003.
On 27 January 2008 the defendant rejected the asylum claim and set directions for the removal of the claimant to Mongolia by a scheduled flight on 3 February 2008.
The reasons for refusal letter of 27 January 2008 concluded that the claimant was not at risk of persecution for a Convention reason in Mongolia for the following reasons (the references in brackets are to the relevant paragraphs in the decision letter):
i) The evidence suggested that there was a general freedom of religion [22];
ii) The claimant had not experienced any problems from different monastic sects once he had left the monastery in February 2003 [22];
iii) The claimant could have sought protection from the Mongolian authorities but had failed to report the beatings to the police until after he had left the monastery in February 2003 since when he had failed to follow up his complaints [24 to 26];
iv) There is an effective police force within Mongolia and any problems within the police are the result of failures in supervision and discipline rather than any concerted policy [29];
v) The claimant had never been arrested in connection with the alleged theft of the statues and he was able to leave Mongolia using his own national passport without any problem [45];
vi) The claimant's fear was of prosecution and not persecution. If there were charges outstanding against him then he could expect a fair trial under an independent and properly constituted judiciary [46 and 47];
vii) The claimant could relocate within Mongolia if he felt at risk on his return [48];
viii) There were other parts of Mongolia to which he could go where he did not have a well founded fear of persecution and to which it was reasonable to expect him to go [54];
ix) Even if the claimant was found to be guilty after a trial and had to serve a prison sentence it was not considered that the prison conditions in Mongolia would constitute a breach of Article 3 of the European Convention on Human Rights (ECHR) [56];
x) The claimant's asylum claim was one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applied. As a result the defendant certified that the claim was clearly unfounded.
On 29 January 2008 the Immigration Advisory Service requested the defendant to defer removal of the claimant to enable a medical report to be obtained from the Medical Foundation for the Care of Victims of Torture (an appointment was made for 16 February 2008) and to enable the Immigration Advisory Service to obtain translations of, and instructions on, documents which the claimant had received from Mongolia showing that he was now being actively pursued on criminal charges.
On 30 January 2008 the defendant refused the request. In a letter of that date the defendant said that it was accepted in the decision letter that the claimant was under investigation by the Mongolian authorities and the fact that charges had been laid did not alter the decision to refuse the claimant's asylum. It merely supported the decision to accept the core of the claimant's case at its highest. The defendant accepted the claimant's account at its highest of the treatment he had suffered prior to leaving his monastery in February 2003. The fact that he had an appointment for an assessment by the Medical Foundation did not advance his case further as it was not part of the claimant's case that he experienced further problems after leaving the monastery in February 2003. Further, the letter noted that the claimant had left Mongolia using his national passport containing a Russian visa which was checked at the Russian/Mongolian border where he experienced no difficulties. He had used an agent to facilitate his entry into the UK which he had entered using a false passport and used verbal and documentary deception. He had made no attempt to claim asylum until one day after he was arrested by the police.
On 3 February 2008 the defendant removed the claimant to Mongolia. He was arrested on arrival in connection with the outstanding criminal charges. He was detained at Gants Hudag Detention Centre in Ulaanbataar in pre-trial detention until 22 April 2009. During the pre-trial detention the claimant was interrogated...
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