AXD v The Home Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2016] EWHC 1133 (QB) |
| Docket Number | Case No: HQ15X01987 |
| Court | Queen's Bench Division |
| Date | 13 May 2016 |
[2016] EWHC 1133 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: HQ15X01987
Victoria Laughton (instructed by Wilsons Solicitors LLP) for the Claimant
Claire van Overdijk (instructed by Government Legal Department) for the Defendant
Hearing dates: 27 th– 29 th April 2016
Approved Judgment
INTRODUCTION
This is the trial of the claim for damages by AXD ("the Claimant"), a Somali refugee, for unlawful immigration detention, based on the common law tort of false imprisonment and the statutory tort under section 8 of the Human Rights Act 1998 in respect of alleged breaches of Articles 3 and/or 8 of the ECHR.
The case has a lengthy and convoluted factual background and procedural history. The latter I bear in mind but do not propose to set out in this judgment. Before I investigate the evidence, I should summarise the position as briefly as I may, as follows.
The Claimant, who has been anonymised for the purposes of these proceedings, came to the UK from Somalia in April 1997, and claimed asylum on arrival. According to his original asylum claim, he is from Mogadishu, the capital of that country. The Claimant has a lengthy criminal record which started in March 2006 and to which I will turn later. His asylum claim was refused but the Claimant was granted ELR, and subsequently ILR on 12 th January 2007. On account of his criminal record, a deportation order was signed by the Defendant on 22 nd December 2008, and on 30 th December he was detained under immigration powers. The Claimant made representations on 8 th January 2009 which were treated as a new asylum claim (the witness statement of Mrs Todd gives the date as 11 th February 2009, but nothing turns on this). On 18 th May 2009 the Claimant was released on bail. He does not contend that the period of his detention between December 2008 and May 2009 was unlawful, but does say that it is relevant to the overall reasonableness of his detention.
On 27 th August 2009 the Claimant was detained pursuant to section 36(1) of the UK Borders Act 2007 following the completion of a sentence of imprisonment for unlawful wounding. On 14 th June 2010 the Defendant decided to initiate deportation action against the Claimant pursuant to section 32(5) of the 2007 Act. On 28 th June 2010 his asylum application was refused, and two days later he was served with the reasons for the deportation notice, which included the refusal of asylum, and a copy of the deportation order. Removal directions were set for 21 st July, but were suspended following the Claimant's application to the ECtHR on 20th July and that court's issuance of interim measures under rule 39.
On 8 th October 2010 the Claimant submitted an application to revoke the deportation order on the ground that he could not safely be removed to Mogadishu. On 29 th October the Tribunal refused bail. On 17 th May 2011 the Claimant was granted bail by the Tribunal, subject to reporting conditions, and he was released.
Thus, the first period of detention relevant to this claim covers 27 th August 2009 to 17 th May 2011, a period of 20 months and 21 days.
The Claimant was re-detained on 27 th November 2011 on the completion of another custodial sentence, on this occasion pursuant to powers under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. On 29 th June 2012 the Claimant submitted further representations and evidence, arguing that he would face persecution on account of his sexual orientation and his conversion from Islam to Christianity, and on Article 15(c) grounds. Concerns were also raised about his mental health. The Defendant treated these representations as a fresh claim, and the Claimant was interviewed on three occasions, the last being on 21 st February 2013. On 22 nd April 2013 the Claimant signed a form applying to return to Somalia under the Facilitated Return Scheme, but on 2 nd May his representatives indicated that he no longer wanted to pursue this course. On 13 th May the Defendant served a decision refusing to revoke the deportation order. This was withdrawn in August.
On 11 th July 2013 the Claimant's solicitors sent a letter, under cover of which was an email from Dr Maloney diagnosing him as suffering from paranoid schizophrenia. A full report from Dr Maloney was provided to the Defendant on 8 th October 2013. On 9 th October 2014 the Claimant was assessed by a psychiatrist instructed by the Defendant, Dr Robert Cornish, and he confirmed the diagnosis of schizophrenia in a report dated 27 th October. The Claimant was unconditionally released by the Defendant on 5 th December 2014. On 17 th December he was granted leave to remain, and then he was granted refugee status on 19 th August 2015.
Thus, the second period of detention relevant to this claim covers 27 th November 2011 to 5 th December 2014, a period of 36 months and 8 days.
I should make clear that the claim under section 8 of the Human Rights Act 1998 is brought only in relation to the second period of detention.
THE KEY ISSUES ARISING
As regards the common law claim, the issue may be shortly expressed in these terms: was the Claimant unlawfully detained by reference to well-known Hardial Singh principles? On analysis, this sub-divides into three sub-issues, namely: (i) did detention become unreasonable at any stage before the Claimant's release? (ii) was there at any stage before the Claimant's release no sufficient prospect of removal within a reasonable time? and (iii) did at any stage the Defendant fail to act with reasonable diligence and expedition? It should be clear that in formulating the issues in this manner, the court is required to adopt both a macro and a micro approach: moving its scope between, on the one hand, an overarching assessment (in particular, in relation to the overall reasonableness of the Claimant's detention); and, on the other hand, a more granular evaluation, scrutinising at all material times the Defendant's justifications for maintaining the incarceration of the Claimant.
As regards the statutory claim under section 8 of the Human Rights Act 1998, read in conjunction with Articles 3 and/or 8 of the Convention, the issues are as follows. First, did the detention of the Claimant breach his Article 3 and/or 8 rights? (Here, a number of sub-issues arise relating to the Claimant's diagnosis, the treatment he received, and whether in the circumstances the Defendant's positive and negative obligations were breached). Secondly, did the manner and circumstances of the Claimant's release breach his Article 3 and/or 8 rights? Thirdly, did the Defendant's detention of the Claimant cause psychiatric harm and, if so, what is its nature and extent?
In relation to both the common law and statutory claims, issues of quantum arise, subject always to liability, in the context of general, aggravated and exemplary damages (as regards the common law claim) and of just satisfaction (as regards the statutory claim, per section 8(4) of the Human Rights Act 1998). The parties have agreed that issues of quantum should be adjourned, as necessary, to another hearing.
I will be setting out and explaining the legal principles relevant to these issues at a later stage in this judgment.
THE COURSE OF THE TRIAL
I heard oral evidence from the Claimant, Mrs Lesley Todd (the Defendant's lay witness), Dr Chris Maloney (the Claimant's psychiatrist) and Dr Gavin McKay (the Defendant's psychiatrist). I also received a short witness statement from the Claimant's solicitor, Ms Jennine Walker.
I will be setting out the essential parts of the oral evidence, and my findings of fact in that regard, later in this judgment, but in tune with the granular approach that I have indicated must in part be applied to the Claimant's detention I now propose to review in greater detail the documentary evidence bearing on the Defendant's reasons for detaining the Claimant.
FACTUAL NARRATIVE
What follows is an amalgam of the documentary record, the witness statement of Mrs Todd, the Claimant's chronology, and the key events highlighted in the Defendant's skeleton argument.
Mrs Todd has no personal knowledge of the Claimant's case before 5 th December 2014. I raised a point with Ms Claire van Overdijk as to whether she could give opinion evidence about the reasonableness or otherwise of the Defendant's decision-making processes as they related specifically to the Claimant. Mrs Todd has vast experience in the Defendant generally, and is currently a Senior Executive Officer managing a team of officials dealing with Foreign National Offender cases. It was my clear view that Mrs Todd could not, since she could not purport to give expert opinion evidence on this sort of matter, falling as it does within the province of judicial assessment; and, in any event, she was scarcely an independent witness, having not complied with CPR Part 35. I believe that Ms van Overdijk agreed with my analysis, but I am approaching this issue not on the basis of any concession. In my judgment, Mrs Todd could give admissible evidence about the Defendant's practices, policies and procedures, and could deal with the statistical evidence relating to the number of successful returns to Somalia.
As regards the Defendant's practices, policies and procedures, I asked Mrs Todd to give me a general idea of the amount of work that goes into the preparation of a decision letter in a reasonably complex asylum, Article 3 and Article 15(c) case such as the Claimant's. She gave very helpful evidence about this. The Case Owner must examine the entire file and try to pull out the relevant points. The first draft of the decision letter could well take 2–3 days to...
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