BCZ v Secretary of State for the Home Department London Borough of Hillingdon and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 07 November 2014 |
| Neutral Citation | [2014] EWHC 3585 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3604/2014 |
| Date | 07 November 2014 |
[2014] EWHC 3585 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/3604/2014
and
Ms Nicola Braganza (instructed by Bhatt Murphy) for the Claimant
Ms Julie Anderson (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 7 th October 2014
A. Introduction
There is before the Court a renewed application for permission to apply for judicial review and application for interim relief. An Anonymity Order has been made in favour of the Claimant who is referred to in this judgment as either "the Claimant" or "BCZ". Because of a concern about his capacity he is a protected party and is represented in this litigation by the Official Solicitor. Ms Nicola Braganza appeared at the hearing on his behalf. Ms Julie Anderson appeared for the Defendant, the Secretary of State for the Home Department ("SSHD").
This case concerns the position of a person in detention facing deportation who refuses food and fluid with a view to pressurising the SSHD into giving him leave to remain but who, in consequence, is at risk of suffering a serious neurological condition. Cases such as these highlight acute conflicting public interest considerations. On the one hand the State has in place an immigration policy which it seeks, and is entitled, to enforce vigourously and which includes detention pending removal as an important protective component. On the other hand detention is an acute deprivation of a person's civil liberties and, ordinarily, should be used only exceptionally where other courses short of detention are unavailable. Whilst in detention the State must take proper care of detainees and permit them to have access to a Court or Tribunal to test the legality of their detention and their Deportation Order. But, at the same time, it must do what it can to progress the removal process. These cases, therefore, raise complex and sensitive issues.
B. Procedure
In the present case an application was made for permission to apply for judicial review on 1 st August 2014. This, in substance, alleged that the continued "ongoing" detention of the Claimant was unreasonable. In essence what was challenged was a continuing breach which was said to be unlawful because the stage had been reached when removal was neither imminent nor was there any prospect of removal within a reasonable time. The grounds were framed under both domestic law and the European Convention on Human Rights ("ECHR"). It was accompanied with a request for urgent consideration. On the same day Cranston J. directed anonymity and abridged time for service of an Acknowledgement of Service ("AOS") to 14 days. In the event the AOS was served on 15 th August 2014. Permission to apply for judicial review was refused on paper by Kenneth Parker J. on 20 th August 2014. The reasons given by the Judge may be summarised as follows. First, it was not arguable that there was no real prospect of removal within a period that was in all the circumstances reasonable. As to the proposed date of the Claimant's asylum appeal against the Defendant's rejection of his application (due to be heard in November 2014) to the extent that the delay caused by an appeal may be relevant it was open to the Claimant to seek expedition. Secondly, with regard to the alleged deterioration of BCZ's physical and mental health and the diagnosis of depression the responsible clinicians advising the Defendant had throughout the detention considered these matters and did not advise that detention was no longer appropriate. The Defendant had taken that advice into account and had considered the implications of the relevant policy bearing upon the physical and mental health of detained persons. The Judge could see no arguable basis for challenging the decision to detain on the grounds that the Defendant had either misunderstood or mis-applied any relevant policy in the case. Thirdly, the Judge concluded that given the Claimant's immigration history and previous offending the Defendant had more than reasonable grounds for concluding that the risk of absconding was very substantial and that the risk of re-offending was not insignificant. Fourthly, he concluded that the claims under Articles 3 and 5 ECHR were in essence parasitic upon the other grounds which the Judge had already addressed and rejected.
The matter came before me by way of renewed application for permission on 7 th October 2014. I heard argument over the course of approaching three hours and, subsequent to the hearing, have read in detail all of the available medical evidence and the detention and other reports relevant to the Claimant. This has included a considerable volume of late disclosure provided by the Defendant the day before the hearing which included, inter alia, monthly progress reports submitted to the detainee, Detention Reviews ("DRs"), and material from the General Case Information Database ("GCID") together with correspondence passing between the parties and certain third parties including with medical professionals. This material bears directly upon the Defendant's decision both as of the date of the application but also as the position has progressed. Both sides, in effect, treated the disputed decision as ongoing and the new evidence relevant to it. I have reviewed comprehensively the evidence in this case. I have not considered myself bound or affected by the earlier refusal to grant permission which was on a different evidential basis.
C. The facts
In the text below I provide a chronological summary of the relevant events and of the medical issues arising. A very helpful and detailed chronology was provided to me by the Claimant. I have not found it necessary to record every event which has occurred or to refer to every document that I read.
The Claimant – BCZ — is a Chinese national who was born in October 1992. He arrived in the UK illegally as a minor aged 13 in September 2006. On 19 th June 2013 he was arrested in connection with a fraud. He was detained upon a basis which included that he was likely to abscond and that he had given unsatisfactory answers to police questions. He was interviewed on 20 th June 2013 when he admitted his status as an illegal immigrant. In interview he stated that he feared persecution in China from the authorities because of a family connection with Falun Gong. The Claimant stated that he was Han Chinese of Falun Gong religion. He stated that his parents had been murdered by the Chinese authorities for their beliefs and he would be persecuted if he was returned to China. I note, though, elsewhere in the documents when interviewed about his parents he stated that he was not aware whether they were dead or alive. He was brought before Magistrates on 21 st June 2013 and was charged with being in possession of items for use in the course of fraud (including a false passport and fraudulent credit cards) and he was sentenced to two periods of six months' imprisonment to be served consecutively giving rise to a total of twelve months' imprisonment.
On 8 th August 2013 whilst BCZ was in custody the United Kingdom Borders Agency ("UKBA") issued a Notice of Liability to Deportation which was served upon the Claimant on the following day and was predicated upon the basis that deportation was conducive to the public good.
On 20 th August 2013 the Claimant claimed asylum. He was interviewed in prison on 24 th August 2013 and on 4 th November 2013. (He subsequently, on 10 th June 2014, refused to take part in the substantive interview process to support his asylum claim.)
In November 2013 the Home Office file was sent to the Asylum Team in Liverpool for consideration. The file was then sent to the Solihull Asylum Team by the Liverpool Team to arrange for an asylum interview. On 6 th February 2014 at the request of prison staff at HMP Littlehey the Claimant was seen by an Immigration Officer. The Claimant stated that he had a child in the United Kingdom with a married woman and that he wanted to be let out so that he could deal with gaining access to the child. However, it has subsequently transpired that he has had no contact with the child and there is uncertainty as to whether he is in fact the father.
BCZ was released from custody on 20 th December 2013. He was however immediately detained pursuant to section 36(1) UK Borders Act 2007 pending a determination by the Defendant as to whether one of the exceptions to deportation under section 33 of the Act applied. Detention Reports prepared in January, February and March 2013 record a " medium risk" of absconding and/or re-offending as the justification for continued detention.
On 19 th March 2014 the Claimant applied to the First tier Tribunal for bail, which was refused (on 24 th March 2014) on the basis of a " real risk of absconding". A Detention Review of 9 th April 2014 stated that removal was not imminent but that it was likely to occur within a reasonable time.
On 21 st April 2014 the Claimant stated that he had been subject to mistreatment by the Chinese police whilst in China. This claim was investigated by the Defendant and rejected in a letter of 24 th April 2014 which also held that, in any event, it had no impact upon the Claimant's continued detention.
Two days later on 26 th April 2014 the Claimant started refusing food and fluids until such time as he was given leave to remain in the...
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