AYZ v The Home Office
| Jurisdiction | England & Wales |
| Judge | Veronique Buehrlen |
| Judgment Date | 06 November 2018 |
| Neutral Citation | [2018] EWHC 2914 (QB) |
| Court | Queen's Bench Division |
| Date | 06 November 2018 |
| Docket Number | Case No: HQ16X03421 |
[2018] EWHC 2914 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Veronique Buehrlen Q.C.
(Sitting as a Deputy High Court Judge)
Case No: HQ16X03421
David Chirico (instructed by Wilson Solicitors LLP) for the Claimant
Rory Dunlop (instructed by the Government Legal Department) for the Defendant
Hearing dates: 17 to 19 October 2018
JUDGMENT As Approved by the Court
Veronique Buehrlen QC:
Introduction
At the outset of the hearing I granted the Claimant's application for anonymity. Accordingly, I refer to him below as either “the Claimant” or AYZ.
AYZ is a national of the Democratic Republic of Congo (DRC). He was held in immigration detention at the direction of the Secretary of State from 9 July 2013 to 1 October 2015. A period of 2 years and nearly 3 months. He claims that for some or all of that period he was unlawfully detained.
The factual background
The Claimant entered the UK in mid November 2005, aged 14, to be reunited with his mother, who had been granted asylum on the basis of her political affiliations in August 2004. The Claimant was granted indefinite leave to enter the United Kingdom and his passport stamped accordingly upon arrival.
Between 2007 and 2012, the Claimant built up a serious criminal record, receiving 15 convictions for 22 offences. These offences included robbery, attempted robbery, common assault, theft, burglary, animal welfare offences and breach of various community and rehabilitation orders.
In August 2011, the Claimant was arrested and remanded in custody for offences of violent disorder and aggravated robbery during the August 2011 London riots. Having pleaded guilty, on 24 February 2012 the Claimant was sentenced to 3 1/2 years' imprisonment. Judge Morrison when passing sentence, said this of the Claimant:
“AYZ, you are involved in three matters, protracted disorder in the Wood Green area having disguised yourself with others in a gang like manner, preying on various sets of premises. You entered with a group, some of whom were armed, premises where there were members of staff who no doubt would have been scared witless. You robbed an innocent bystander walking home and took property from him. Your activity was over a number of hours when you had an opportunity to desist and leave but you did not, it is at a time when normal people thought that society was breaking down, it was highly publicised throughout this country, Europe and the world and it was as though law and order was breaking down and so of course a term of imprisonment is warranted on any number of grounds.
If you had fought this matter, in other words, not admitted your guilt, the sentence I would have passed for the totality of your involvement that night would have been one of five years but you have had the courage to plead guilty, not as quickly as you should, and I also bear in mind that there is personal mitigation concerning your very difficult past …”
The Defendant gave the Claimant notice of its intention to deport him on 5 March 2012 and requested that the Claimant set out any basis on which he might claim that he fell within one of the statutory exceptions to “automatic” deportation under section 32(5) of the UK Borders Act 2007. The Claimant's solicitors, Wilson Solicitors LLP (“Wilsons”), replied on his behalf by letter dated 30 April 2012 stating that the Claimant's removal would breach his ECHR rights and the UK's obligations under the Refugee Convention. There was no suggestion that the Claimant might already have the benefit of refugee status. Rather he was claiming asylum and indeed the Secretary of State treated the Claimant's response as an application for asylum. However, the 30 April 2012 letter did make the point that AYZ had been granted indefinite leave to enter the UK on an application for refugee family reunion to join his mother who had been granted refugee status in August 2004.
An OASys report dated 19 June 2012 prepared by the Highgate Probation Office concluded that the Claimant had a high risk of re-offending and presented a high risk of harm to the public in relation to further robberies and acts of criminality. The risk of the Claimant re-offending was set at 83% within 12 months and 91% within 24 months of release. The author of the report noted that in his view “the defendant's current offences mark an escalation in the seriousness of his offending and indicate a growing pro criminal outlook on his part”. He went on to record:
“[AYZ] has committed three specified, serious offences under S. 15 of the CJA 2003 and meets the criteria to be assessed for dangerousness. His OVP score is high but there is no history that he has actually caused physical harm to anybody in the past. He is capable of causing harm but not necessarily at any time, therefore his risk of serious harm sits between medium and a high. He committed the current offences when he was homeless and possibly suffering from PTSD. There is some evidence that he played a leading role in the current offences. There is also the assessment from his current OM, Laura Spencer, that the dogs he mistreated in his previous offence were “weapon dogs” made deliberately vicious by their owner's treatment so that they could be used to harm or intimidate others. In addition, Ms Spencer believes that he has gang affiliations with the Wood Green Mob. On balance, I consider it best to err on the side of caution and place him at a high risk of serious harm. This is because his homeless state, his possible PTSD and his gang membership/affiliations are not likely to be different when he is released on licence. In my assessment, these are the factors that may lead him to cause serious harm in an opportunistic or unplanned way, just as he did when he played a leading role in committing his current riot-related offences.”
AYZ was interviewed for the purposes of his asylum application on 8 August 2012. When asked why he could not return to his home country, AYZ is reported as having said that the people who were after his mother when she left the DRC “will come after me” and that he feared they would kill him. However, he was unable to explain who these people were or why they would want to harm him. On 15 November 2012, the Secretary of State refused the asylum application making a deportation order under section 32(5) of the UK Borders Act 2007 on the basis that AYZ was a foreign criminal whose removal was conducive to the public good. The reasons for the decision are set out in a Minute from which it is apparent that no consideration was given to whether AYZ had refugee status. Rather the Minute records (it would appear mistakenly) that AYZ's Family Re-union visa expired on 7 November 2007.
AYZ exercised his right to appeal to the First-tier Tribunal (FTT) on 23 November 2012.
On 10 April 2013, a Consultant Forensic Psychiatrist, Dr Joanna Dow, diagnosed AYZ as suffering from PTSD. Further, her report concluded that AYZ's risk of re-offending was “medium” and that the risk of serious harm to others (where defined as death or serious personal injury whether that is physical or psychological) was “low”.
AYZ's appeal hearing, listed for 29 April 2013, was then adjourned at the Secretary of State's request to allow fresh evidence served by AYZ shortly before the hearing (including Dr Dow's report, a witness statement from AYZ's social worker, an expert report on the DRC and other material) to be considered. The hearing was re-listed for 8 July 2013. However, not yet having considered the further evidence presented by AYZ, the Secretary of State applied for a second adjournment shortly prior to the 8 July 2012 hearing. Meanwhile, it is clear from the Defendant's contemporaneous internal emails that a question had arisen as to AYZ's status as a refugee by virtue of his mother having been granted asylum in 2004.
On 9 July 2012, AYZ completed his custodial sentence and was detained under paragraph 2(3) of Schedule 3 of the Immigration Act 1971 on the basis that he was the subject of a deportation order. An IS91 was issued stating that the Secretary of State had authorised AYZ's detention. The decision to detain is recorded in Minutes dated 9 and 10 July 2012 in which the Higher Executive Officer (HEO) responsible recorded that he agreed:
“with the case worker's proposal that detention should be maintained. [AYZ] is a habitual offender who has been served with a signed DO and has been assessed as posing a high risk of absconding, re-offending and harm. He has lodged an appeal against deportation which is scheduled to take place on 25 September 2013. I do however have concerns over whether he is a recognised refugee because he entered the UK on a family reunion visa to join his mother who was granted refugee status. I have requested the file to investigate this issue. Detention authorised.”
A one month detention review was undertaken by the Home Office on 6 August 2013. The Authorising Officer approved maintaining immigration detention for AYZ noting:
“[AYZ] is a habitual offender who has been served with a signed DO and has been assessed by the caseowner as posing a high risk of absconding, re-offending and harm. He has lodged an appeal against deportation which is scheduled to take place on 25 September 2013. Should an adverse decision be made and ETD progressed removal remains realistic.
Enquiries are being made over whether he is a recognised refugee because he entered the UK on a family reunion visa to join his mother who was granted refugee status …”
A medical assessment was also to be carried out, the refugee status issue concluded and a NOMS report obtained.
Following an internal debate at the Home Office as to AYZ's likely immigration status, by early August 2012 the...
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