B v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms Steyn |
| Judgment Date | 28 June 2016 |
| Neutral Citation | [2016] EWHC 3050 (Admin) |
| Docket Number | CO/2393/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 June 2016 |
[2016] EWHC 3050 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Ms Karen Steyn QC
(Sitting as a Deputy High Court Judge)
CO/2393/2016
Ms Leonie Hirst (instructed by Public Law Project) appeared on behalf of the Claimant
Mr V Mandala (instructed by the Government Legal Department) appeared on behalf of the Defendant
MS HIRST: My Lady, I appear on behalf of the claimant. I have handed up a very small clip of mainly statutory authorities and the case of R (on the application of Cyrus) v Secretary of Sate for the Home Department [2016] EWHC 918 (Admin), which is referred to in my grounds.
Thank you.
MS HIRST: Perhaps I could just start with a quick overview of what is at the heart of this application. The parties are agreed that the court should not concern itself with permission today. Obviously, we have not yet had an acknowledgement of service and so that is all still pending. Indeed, I understand from my learned friend today that in fact a further decision is likely at some point on the expert reports which the claimant had understood would be the subject of a decision on 14 June.
Right.
MS HIRST: So, there is some material which has not yet been considered by the Secretary of State. It is common ground that that will be considered. At least that is my understanding, subject to what my learned friend has to say. So, this is not a permission hearing.
Yes.
MS HIRST: We say that there is ample material before you to form an arguable case that the certification decisions were unlawful. That is of course the case we need to make for the judicial review claim, but the case for interim relief is much simpler than that. All we are asking the court to do today is to put the claimant back into the position she would otherwise have been in pending the resolution of the judicial review claim and then any subsequent appeal that might arise depending on the outcome of that hearing. That is not going to be a very long period of time.
We say in circumstances where she is in fact not going to be removed from the UK pending the judicial review outcome then the court's task is somewhat easier. That is a more straightforward choice. Certainly, we say that the decisions in play are 23 October 2015, that is in the main claim bundle at 188, 11 February 2016, that is at 209, and we say that the 14 June is also an operative decision, although that is I understand in dispute. That is in the application bundle at 23.
Subject to your Ladyship's concerns, I do not propose to take you through all the material as if this were a permission hearing. Put very simply in nutshell, what we say is that the Secretary of State has not considered the relevant material that was before her. In particular, what the Secretary of State has not considered is the material from social services and from the claimant's social worker, which is relevant to the risk to her at any point. So, that is relevant both to whether her underlying claim is clearly unfounded or can be certified under 94B, but it is also relevant, obviously, to the interim issue of certification and whether that certification decision was lawful.
As I understand it, the defendant is saying that is information that was not actually before the Secretary of State at the time of the decisions that you are challenging. Is that right or is it just the subsequent expert reports?
MS HIRST: That may be what the Secretary of State is saying. I had not understood that to be the defendant's case.
MR MANDALA: The social worker's report I think was before the Secretary of State. It is the two expert reports. If one turns to I think it is page 34.
MS HIRST: They are 34 and 71.
MR MANDALA: And 71. It is those two reports that have come in more recently.
MS HIRST: I am grateful for that clarification. Those reports came in and were sent to the defendant. Those are the subject of the May pre-action letter, which was the reason the stay was sought when the claim was issued. We had confirmation from the Secretary of State that there would be a substantive response to that letter. Hence, the decision of 14 June was something of a letdown for the claimant, but certainly that material has not yet been considered.
When you say the Secretary of State has not considered the relevant material regarding risk on return, which material are you referring to?
MS HIRST: We say those two expert reports, because the purpose of staying this claim was for the Secretary of State to provide a further substantive decision on those reports. Those are clearly, on any reasonable view, relevant to both the claim itself and to the certification decision, but also we say the materials that were supplied by the claimant at her asylum interview and that the Secretary of State received prior to at least the February decision. Those are in particular. They are not limited. They are listed on page 176. That is the end of the asylum record. We can see there was a care plan on top of that list and also item 7 of the Core Profile, which is 29 pages, that reference is to the Asset Core Profile, which is at page 229.
If I could just take your Ladyship through that very, very quickly. This is a document produced after the sentence report. It is designed to give a general overview, from the forensic point of view, of the claimant's risk of re-offending, but also the other factors relevant to her as a young person. The particular references that are relevant, we say, are at 233, where it refers to the risk of harm arising from domestic violence in her family and concerns that the claimant had been pressurised into offending and sexual exploitation. I am looking at the bottom box on that page. It is about two-thirds of the way down:
i. "Any accommodation place will need monitoring to ensure B is safe and to reduce the risk of exploitation by criminal peers."
Then turning over the page to 235, there is reference about halfway down the page to welfare vulnerability. At the end of that paragraph:
i. "She reports no family ties in both Guyana and Venezuela and in my view would be vulnerable if she was deported back to these countries."
Then further down the risk of harm. Again, a reference to domestic violence and sexual exploitation, incidents of self-harming and suicidal ideation. At the bottom of that page, her offending is assessed as a response to family issues. Then over at 240 about level with the bottom hole punch, "Welfare/vulnerability":
i. "If left unsupported she is at risk of associating with pro-offending peers who may exploit her sexually whilst increase her risk of re-offending. It will be of grave concern if she is deported to Guyana where her only family ties have allegedly sexually and physically abused her mother."
Then at 245 there is reference to chronic self-harming behaviour and an overdose attempt. She has attempted suicide on four different occasions throughout the years. Then lastly at 246 under "Risk of harm":
i. "In the event that B is deported, I would strongly advise that safeguarding measures that monitor young people at risk of self-harming or suicide are put in place by the country repatriating her."
There are other references throughout the report to her vulnerability, to the risk of sexual exploitation, to the risk of self-harm and suicide and the risk of deterioration in her mental health if removed from the UK. That was a report which went directly to the Article 3 claim and also to her Article 8 claim. We say it was properly material that should have been considered by the Secretary of State in either the October or the February decision or both.
The next piece of evidence which we say should have been considered but was not is at 278. That is the report from the claimant's social worker. I am grateful. I understand from the defendant's GCIB record that this was with the defendant by 21 November 2015 so prior to the February decision.
Thank you.
MS HIRST: This report, as you will see from the top of it, is produced in response to the decision letter of October and sets out the reasons why she should not be deported. We say that the whole report is highly relevant to the case, but, in particular, what is said on page 280 at the bottom of the third paragraph down. In fact, if I could ask your Ladyship just to read that paragraph and the bottom paragraph on the page.
Yes.
MS HIRST: We say that that is, on any reasonable view, evidence which is capable of forming the basis for the Article 3 claim and the Article 8 claim. That is even before one reaches the two additional expert reports. This is clearly, on any reasonable view, a very vulnerable young woman with a very troubled past and the views of professionals working with her are that removal will have a devastating effect on her. We say, in those circumstances, a decision to certify the claim, even before one reaches a proper application of the law, was simply irrational.
The threshold is very low. Your Ladyship will have seen the reference in the grounds of claim to ZT(Kosovo) v Secretary of State for the Home Department [2006] EWHC 3225 (Admin). The Article 3 claim is a very undemanding threshold indeed. If there is any legitimate view of the facts or the law in which this claimant might succeed, it cannot lawfully be certified. I accept that the test for 94B certification is somewhat...
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