Ebou Jasseh v The Home Office
| Jurisdiction | England & Wales |
| Judge | Richard Roberts |
| Judgment Date | 12 January 2024 |
| Neutral Citation | [2024] EWHC 31 (KB) |
| Year | 2024 |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2022-001090; KB-2021-002596 |
[2024] EWHC 31 (KB)
HHJ Richard Roberts
(Sitting as a Judge of the High Court)
Case No: KB-2022-001090; KB-2021-002596
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Greg Ó Ceallaigh of Counsel (instructed by Birnberg Peirce Limited) for the Claimant
Mr James Fletcher of Counsel (instructed by the Government Legal Department) for the Defendant
Hearing dates: 4, 5, 6 December 2023, with hand down on 12 January 2024
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Richard Roberts
HIS HONOUR JUDGE
Introduction
This is the trial of two claims by the Claimant, who seeks a declaration that he was falsely imprisoned and/or unlawfully detained by the Defendant in breach of the Hardial Singh principles and Article 5 ECHR during two periods of immigration detention:
i) Between 15 September 2019 and 3 August 2020 (324 days)
ii) Between 28 June 2021 and 15 September 2021 (80 days).
Mr Ó Ceallaigh of Counsel appears on behalf of the Claimant. I am grateful to Mr Ó Ceallaigh for his skeleton argument, dated 30 November 2023, his speaking note, dated 6 December 2023, and his case summary, dated 7 March 2023 1. Mr Fletcher of Counsel appears on behalf of the Defendant and I am grateful to him for his skeleton argument, dated 28 November 2023, his working chronology and his closing remarks, dated 6 December 2023.
The main trial bundle is in two files and totals 933 pages. In addition, there is a supplementary bundle of 613 pages and an authorities bundle of 512 pages. On the first day of trial, the Defendant submitted a further bundle of 25 pages, which I will refer to as bundle Z. References to footnotes below are to the main trial bundle unless otherwise stated.
Contents
I have structured this judgment as follows:
Evidence
| Section | Paragraphs |
| Evidence | 5–6 |
| Entry into the United Kingdom and asylum claim | 7–15 |
| EEA application | 16–22 |
| Arrest, conviction and deportation proceedings | 23–40 |
| First period of detention (15 September 2019 to 3 August 2020) | 41–106 |
| The statutory context | 107 |
| The Hardial Singh principles | 108–112 |
| Grace period | 113 |
| Article 5 ECHR | 114 |
| Defendant's policy document “Enforcement Instructions and Guidance” | 115–116 |
| Court is primary decision maker | 117 |
| Hardial Singh principle (i) — Claimant's detention on 15 September 2019 | 118 |
| The Hardial Singh principles (ii) and (iii) — Reasonable period | 119–160 |
| Conclusion as to detention from 15 September 2019 to 3 August 2020 | 161–163 |
| Grace period | 164–168 |
| Hardial Singh principle (iv) | 169 |
| Article 5 ECHR | 170 |
| Breach of Defendant's “Chapter 55 Enforcement Instructions and Guidance” policy | 171–173 |
| Breach of Defendant's “Detention Case Progression Panels” policy | 174–181 |
| Substantial or nominal damages | 182–185 |
| Second period of detention (28 June 2021 to 15 September 2021) — Hardial Singh principle (i) | 186–191 |
| Hardial Singh principle (ii) | 192–199 |
| Hardial Singh principles (iii) and (iv) | 200 |
| Breach of Defendant's “Chapter 55 Enforcement Instructions and Guidance” policy | 201 |
| Substantial or nominal damages | 202–203 |
| Aggravated damages | 204–232 |
| Exemplary damages | 233 |
| Summary of findings | 234–235 |
The Claimant relies upon one witness statement, dated 15 July 2023 2, and gave evidence in person at trial.
The Defendant relies upon two witness statements:
i) Susan Quinn, the Senior Executive Operational Manager of the Foreign National Offender Returns Command of Immigration Enforcement, within the Home Office, dated 1 August 2023 3. Ms Quinn gave evidence by videolink.
ii) Joseph Augustine, Assistant Director of the Foreign Nationals Returns Command (FNORC), dated 1 August 2023 4. Mr Augustine gave evidence in person at trial.
Entry into the United Kingdom and asylum claim
On 28 February 1983, the Claimant was born in The Gambia. He is now aged 40.
On 19 May 2004, the Claimant was issued with a six-month multi-visit visa to the United Kingdom, expiring on 19 November 2004 5.
On 28 May 2004, the Claimant entered the United Kingdom with the visit visa.
On 19 November 2004, the Claimant's visit visa expired and he became an overstayer.
On 3 September 2009, the Claimant claimed asylum in the United Kingdom and was served as an overstayer. His application was put in the Detained Fast Track 6.
On 24 September 2009, the Claimant was granted temporary release 7.
In 2010, the Claimant was arrested for sexual assault of a female who was intoxicated in Watford town centre 8. He denied the assault and said he was a witness to an assault by another man. The Claimant was not charged.
On 17 June 2010, the Claimant's first asylum claim was refused. On 28 June 2010 he lodged an appeal, which was dismissed on 2 August 2010. On 12 August 2010, the Claimant became appeal rights exhausted.
On 19 August 2010, the Claimant advised that he wished to return home voluntarily and would book his own ticket. On 19 October 2010 he said he was still willing to leave the UK voluntarily but could not afford to do so 9. On 2 November 2010 he said he would not return voluntarily and requested his passport so he could make an application. The Claimant's request for his passport to be returned was refused 10.
EEA Application
On 5 November 2010, the Claimant called the Defendant and stated that he intended to make an application for leave to remain as a spouse or on the basis of a relationship with an EEA national 11.
On 27 February 2011, a mitigating circumstances interview was conducted, in which he stated he had been in a relationship with an Irish citizen, Natalie O'Connell, since 2006 and that he would not leave the UK voluntarily 12. On 4 March 2011, the Claimant applied for a certificate of approval of marriage in order to marry Natalie O'Connell 13. The Claimant discontinued this application on 6 May 2011 14.
On 11 May 2011, the Claimant, having been detained, was served with removal directions, to remove him to The Gambia on 18 June 2011 15. On 18 June 2011, the Claimant refused to leave the detention centre for the deportation flight, resulting in removal directions being cancelled 16.
On 20 June 2011, the Claimant stated that he was going to get married on 21 June 2011 and that he had an outstanding judicial review and EEA residence card application 17.
On 27 June 2011, the Claimant sought permission to apply for judicial review. The Claimant's removal was deferred 18. On 16 August 2011, the Claimant was granted bail 19. On 15 September 2011, the Claimant's judicial review application was closed by the Court 20.
On 1 November 2011, the Claimant applied for an “EEA residence card – non-EEA family member” on the basis of his marriage to Ms O'Connell 21. On 14 November 2011, the Claimant made another application for an EEA residence card – non-EEA family member 22. On 9 February 2012, the Claimant's application for an EEA residence card was refused due to no marriage certificate being provided 23. On 14 May 2012, the Claimant's application of 14 November 2011 for an EEA residence card was again refused on the basis that no EEA-identification had been supplied. In particular, the Claimant's wife's passport had not been supplied (although it had been supplied in the earlier application) 24.
On 17 July 2012, the Claimant brought an application for judicial review of the refusal of his residence card 25. On 1 August 2012, upon review, the Claimant was granted a residence card, valid until 1 August 2017 26.
Arrest, conviction and deportation proceedings
On 22 July 2015, the Claimant was arrested on suspicion of rape, committed on 21 July 2015 27.
On 6 August 2015, the Claimant was released on criminal bail 28.
On 30 September 2016, the Claimant was convicted of anal rape at St Albans Crown Court 29. The Claimant had encountered the victim by chance on a street in the early hours, after nightclubs had ejected her. The victim was drunk. The Claimant took her to his home on the pretext of helping her. While she was vomiting in the toilet, the Claimant anally raped her.
On 31 October 2016, the Claimant was sentenced to six years imprisonment and placed on the sex offenders register indefinitely. HHJ Warner said in his sentencing remarks 30,
“As the jury found, she did not consent to what you'd done. She was, I'm satisfied, in no condition to consent and I'm afraid that she told you that she wouldn't consent when you suggested earlier some sort of encounter, sexual encounter, as she said in her recorded interview.
…
I take into account in your favour the fact that you are 33 years of age with no previous convictions, that this is a single incident of relatively short duration and did not involve violence. And I've also taken account of what I heard and read about you, your background, your circumstances, your relationships and your work record. I do not make a finding of dangerousness in your case, although I can understand the views expressed in the pre-sentence report about why you might represent a danger to females. Given the circumstances of this case I do not consider, looking at your case in its totality, including your background, that I should make such a finding in this case.”
On 1 November 2016, the Claimant lodged an appeal against his conviction 31.
On 8 November 2016, the Defendant decided that the Claimant met the criteria for automatic deportation 32.
On 16 May 2017, the Claimant was diagnosed as suffering from a mixed anxiety and depression...
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