CO/2899/2015 R Khaled and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 15 June 2016 |
| Neutral Citation | [2016] EWHC 1394 (Admin) |
| Docket Number | Case No: CO/2899/2015 CO/1367/2015 CO/843/2015 CO/6016/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 June 2016 |
[2016] EWHC 1394 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: CO/2899/2015
CO/3267/2015
CO/1367/2015
CO/843/2015
CO/6016/2015
"Khaled v SSHD No. 2"
David Chirico, Raza Halim and Mark Symes (instructed by Duncan Lewis) for the Claimants (1), (3), (4) and (5)
David Chirico, Raza Halim and Mark Symes (instructed by Fadiga and Co) for the Claimant (2)
Julie Anderson and Belinda McRae (instructed by the Government Legal Department) for the Defendant
Hearing dates: 1 st– 2 nd March and 19 th May 2016
Introduction
The Claimants are nationals of Afghanistan, Iraq or Iran. They have each made asylum claims in the UK. In each case, the Defendant, the Secretary of State, discovered that they had earlier claimed asylum in Bulgaria. The Defendant refused to decide their claims substantively and Bulgaria either accepted, or was deemed to have accepted, responsibility for the Claimants under Council Regulation (EC) No 604/2013 of 26 June 2013 ("Dublin III").
On 18 April 2016, I handed down judgment in a case I entitled " Khaled v SSHD No 1". That dealt with the issues relating to the safety of returning the five Claimants in these cases to Bulgaria. I indicated in that judgment that I would hand down a separate judgment dealing with the claims of four of them that they had been unlawfully detained pending removal. This is that judgment. I have entitled it "Khaled v SSHD No 2".
Claimants SK, HH, FK and HK allege that they were unlawfully detained at different times between February and August 2015. It is said that HK was unlawfully detained between 18 May and 30 June 2015; HH between 8 June and 18 July 2015; SK between 20 February and 25 March 2015 and between 21 July and 11 August 2015; and FK between 6 January and 9 March 2015.
The Facts
The background factual history of each Claimant is set out in Khaled v SSHD No 1 and it is necessary to repeat only part of that background here. I summarise below the facts relevant to the unlawful detention claims.
HK
HK is a national of Iraq. He alleges that he was an Iraqi national of Kurdish ethnicity and that he fears persecution at the hands of ISIS. His journey from Iraq took him through Bulgaria where he was stopped and detained. He then came to the UK.
On 20 January 2015, he was apprehended by the police in Barking. He admitted entering the UK illegally after having paid £4,000 to come to the UK. Either that day, or the following, he claimed asylum. He was interviewed, fingerprinted and was served with illegal entry papers.
In the authorisation of detention in January 2015, the Defendant suggested that HK was " likely to abscond if given temporary admission or release". Two reasons were given in support of this: that he did " not have enough close ties (e.g. family or friends) to make it likely that [he would] stay in one place"; and that he had " not produced satisfactory evidence of [his] identity, nationality or lawful basis to be in the UK". The Claimant alleges that by 4 February 2015, at the latest, the Defendant was aware that HK could live with his cousin and cousin's wife in the UK, the latter having contacted the Defendant directly.
On 5 February 2015, HK was released on temporary admission due to limited detention capacity. On the same day, a Rule 35 report was received noting his allegations of torture (in Bulgaria). The report indicates assent to the proposition " I am concerned that this individual might have been the victim of torture" and recounts the evidence given by HK. On 6 February 2015, a formal request was made to Bulgaria to take responsibility for his case. HK was released from detention.
On 11 March 2015, a response was made to the Rule 35 report. On 7 April 2015, Bulgaria accepted responsibility for HK's claim in default of response. On 14 April 2015, HK's claim was certified on safe third country grounds. On 18 May 2015, HK was detained with a view to effecting removal on 8 June 2015. A four day detention review asserts there was a " high risk of absconding" on the basis that HK had " stated that he does not want to return to Bulgaria".
On 29 May 2015, HK made a further ECHR claim, which was refused on 11 June 2015 with an out of country appeal pursuant to certification. On 19 June 2015, these proceedings were issued and removal directions setting removal for 22 June 2015 were cancelled. HK was released on conditions on 30 June 2015.
HH
HH is a national of Iran. He travelled from Iraq, via Turkey and Bulgaria. He admits that he entered the UK illegally, circumventing immigration controls. HH attended Lewisham police station on 11 February 2015 and was arrested as an illegal entrant. He was interviewed, fingerprinted, served with illegal entry papers and detained. On 14 February 2015, HH was released. On 18 February 2015, a formal request was made to Bulgaria to take responsibility for HH's claim. On 17 April 2015, Bulgaria formally accepted responsibility for HH's asylum claim. On 27 April 2015, HH's claim was refused on safe third country grounds.
On 8 June 2015, HH was detained to effect removal on the basis that his removal was " imminent" and he had not provided satisfactory evidence of his identity, nationality or lawful basis to be in the UK. The Defendant did not tick the boxes suggesting that HH was " likely to abscond if given temporary admission or release" nor that he had " previously absconded".
On 17 June 2015, a Rule 35 report was received recording HH's allegations that he had been tortured in Iran and ill-treated by Bulgarian police officers. The doctor ticked the box indicating that he had " concerns that this detainee may have been the victim of torture". A decision was made to maintain detention. On 17 June 2015, removal directions were set for 7 July 2015. On 19 June 2015, a second Rule 35 report was made alleging self-harm in Iran and referring to scarring said to be a result of that self-harm.
On 3 July 2015, HH made an ECHR claim. On 6 July 2015, the ECHR claim was refused with an out of country appeal pursuant to certification. A claim for judicial review was lodged on 6 July 2015, challenging the decision to certify HH's asylum claim on third country grounds, to remove him to Bulgaria on 7 July 2015 and to detain him. On 7 July 2015, the claim form was provided to the Defendant, who cancelled the scheduled removal for that day. On 8 July 2015, HH applied for temporary admission inter alia relying upon a medico-legal report produced by Medical Justice.
On 10 July 2015, these proceedings were issued. On 13 July 2015, the responsible clinicians were asked to advise whether any medical conditions of HH could be managed satisfactorily in detention (referring to the MJ report). On 14 July 2015, the responsible clinicians confirmed that HH was fit to be detained and fit to fly. On either 17 or 18 July 2015, HH was released.
SK
SK is a national of Afghanistan. He travelled to the UK via Bulgaria, where he was fingerprinted on 10 July 2014. He claims to have entered the UK illegally on 18 November 2014, circumventing UK immigration controls; there is no official record of date of entry. He made an in-country application for asylum in Croydon on 19 December 2014. He reported to Colindale Police Station on 2 January 2015. On 6 January 2015, he was interviewed, fingerprinted, served with illegal entry papers and detained.
On 7 January 2015, SK made claims of torture (in Afghanistan). A Rule 35 report was completed by Dr Nakouzi which recorded SK's account of having been abducted, blindfolded, and detained, during which time he was regularly beaten until a ransom was paid for him. It was said he was left with anxiety attacks and Post Traumatic Stress Disorder symptoms. In the light of SK's account Dr Nakouzi stated that his mental health and general presentation gave him cause for concern and that he would benefit from a mental health assessment.
On 8 January 2015, a formal request was made for Bulgaria to take responsibility for considering SK's asylum claim. On 9 January 2015, a decision was made to release SK in the light of his allegations of torture and he was granted temporary release with reporting conditions on 13 January 2015. In the absence of a response from the Bulgarian authorities, the request was resent on 29 January 2015. The Bulgarian authorities accepted responsibility for SK's claim on 12 February 2015.
On 20 February 2015, SK was detained and on 27 February 2015, his asylum claim was formally refused on safe third country grounds. The form recording the reasons for his detention shows the boxes crossed as those indicating absconding risks, imminence of removal, failing to provide satisfactory evidence of identity, nationality or lawful basis of stay, and previous failure to leave the country when requested to do so.
On 5 March 2015, SK's ECHR claim was refused with an out of country appeal pursuant to certification. On 13 March 2015, removal directions were set. At the same time a notice that his asylum claim was refused was served on him, to take effect on 23 March 2015.
On 20 March 2015, the Defendant maintained her decision to...
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