FF v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 24 September 2021 |
| Neutral Citation | [2021] EWHC 2566 (Admin) |
| Docket Number | Case No: CO/2029/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2566 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Dove
Case No: CO/2029/2020
and
Tom Hickman QC and Isabel Buchanan (instructed by Deighton Pierce Glynn) for the Claimant
Robin Tam QC and Saara Idelbi (instructed by Government Legal Department) for the Defendant
Hearing dates: 29 th June 2021
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.
The Facts
In February 2011 the claimant was a citizen of Bahrain who took part in a peaceful protest at the Pearl Roundabout in Manama. During the protest he was assaulted by the police and then arrested and held without charge. Whilst he was detained, he was physically abused and tortured. He was released and subsequently detained again and once more mistreated. Later, he was convicted by a military court for his involvement in this protest. Ultimately, on the basis that he was convinced that his life was in danger, the claimant left Bahrain and came to the UK where he claimed and was ultimately granted refugee status.
It was reported that the interested party was personally involved in the torture that detainees who were held after the protests in February 2011 were subjected to. Further reports and allegations of torture, along with widespread human rights abuses by the Bahraini authorities in response to the 2011 protests were contained in reports from Human Rights Watch. These observations included, again, identifying the involvement of the interested party in the direct infliction of torture. Reports of systematic torture and the involvement of the interested party in it were published by the Bahrain Centre for Human Rights in August 2011. In November 2011 the Bahrain Independent Commission of Inquiry published its report, having been commissioned to undertake an independent inquiry in relation to the events of February and March 2011. This report confirmed the Bahraini Government's use of systematic torture and other forms of abuse of detainees.
The claimant has for many years engaged in efforts to take action against the interested party in relation to his concern that the interested party was involved in human rights abuses. He has worked to take steps to hold the interested party accountable for his actions, in particular following the February 2011 protests. On 5 th July 2012, the European Centre for Constitutional and Human Rights, a German organisation, provided the Director of Public Prosecutions (“the DPP”) with a dossier of evidence implicating the interested party in the torture of detained prisoners in April 2011, and encouraging the instigation of a criminal investigation. That report was also passed to SO15. SO15 are the Counter Terrorism Command of the Metropolitan Police Service. Further, in the summer of 2012 the claimant's solicitors contacted the Director of Public Prosecutions seeking consent to issue an arrest warrant in relation to a private prosecution of the interested party. An issue was taken by the CPS in relation to the interested party having immunity from prosecution, but following the issuing of a judicial review in relation to that decision it was ultimately agreed that the interested party did not have any such immunity.
As part of the context for the present proceedings, correspondence ensued between the claimant's solicitors and SO15. In particular, on 12 th November 2014, SO15 wrote to the claimant's solicitors indicating that they had no information to suggest the interested party was currently in the UK, and that they would not be conducting an investigation into him. The letter continued, “as detailed in the joint CPS/SO15 guidelines on the investigation of Genocide, Crimes against Humanity, War Crimes and Torture we will refer [the interested party] to the United Kingdom Border Force for potential immigration action.”
On 20 th March 2015, the claimant provided further evidence to SO15. On 27 th May 2016, SO15 responded indicating that the view had been formed that there was insufficient evidence to provide a realistic prospect of a prosecution against the interested party. In July 2016, the claimant's solicitors wrote to SO15 asking whether or not the case had been passed to the defendant in accordance with the SO15 policy. On 10 th August 2016, SO15 advised that “a copy of our report and findings will be passed to the Special Cases Department of the National Security Directorate of the Home Office for their consideration.”
On 28 th October 2016, the claimant wrote to the defendant, and on the basis of the information contained within the correspondence, which dealt with amongst other matters those which are set out above, requested that she exclude the interested party from the UK. On 22 nd November 2016, the defendant responded to the claimant in the following terms:
“It is the general policy of the Home Office not to discuss or comment on an individual's immigration matters with a third party. We have obligations under the Data Protection Act and in law generally to protect this information. I am therefore unable to comment on Prince Nasser.
The Home Secretary has the personal power to exclude from the UK a foreign national whose presence would not be conductive to the public good. Exclusion powers are very serious and no decision to exclude is taken lightly. All exclusion decisions must be justified and based on sound evidence, and in all cases the Home Secretary must exercise her power in a way that is considered reasonable, proportionate and consistent. In making a decision, the Home Secretary would also take into account the views of relevant departments including the Foreign and Commonwealth Office and the Department of Communities and Local Government.
The Government will continue to look at cases that are brought to its attention and act in accordance with the individual circumstances involved.”
On 13 th January 2017, the claimant sent a pre-action protocol letter which was responded to by the defendant on 10 th February 2017. On 25 th May 2017, a further letter before claim was sent by the claimant including a request for information under the Freedom of Information Act 2000 (“the FOIA request”). There was a lengthy period of delay in dealing with that request, but a response was finally sent on 26 th February 2021. In the meantime, the claimant successfully judicially reviewed the refusal to grant him full representation funding for this claim, following which a further letter before claim was sent on 27 th March 2020. This was responded to on 28 th April 2020.
On behalf of the defendant, evidence has been filed by Ms Claire Earl, who is the Head of the Out of Country Casework Team in the Home Office's Special Cases Unit (the “SCU”). The SCU is the immigration arm of the Homeland Security Group. Its role is to manage some of the most significant, high-harm and high-profile immigration, asylum and citizenship cases, including those involving suspected terrorists, extremists, war criminals and individuals involved in organised crime. In her evidence Ms Earl explains the context of the defendant's policy (set out below) entitled “Exclusion from the UK” which covers the use of the defendant's power to issue an exclusion direction.
Ms Earl also addresses in her evidence the claimant's request that the defendant gives an exclusion direction in relation to the interested party. It appears from her evidence that on 10 th August 2016, SO15 told SCU by email that the claimant's solicitors had sent a dossier of material to the CPS who had referred the matter to the Metropolitan Police. The dossier contained material related to the allegations against the interested party set out above. SO15 asked SCU if they would like sight of the report that they had prepared in relation to the material, but SCU did not ask for the report and requested that their contact details not be given to the claimant's solicitor. Ms Earl explains that she understands that on 11 th October 2016, SO15 explained to the claimant's solicitors they could not provide SCU contact details to them and they were referred to the Government's website for advice on how to bring the matter to the attention of the defendant. Although SO15 told the claimant's solicitors that they had sent SCU their report and findings, those were neither asked for nor received by SCU. On 28 th October 2016, the claimant wrote to SCU requesting that the interested party be refused permission to enter the UK; there were no enclosures accompanying the letter. Whilst a number of enclosures were sent by the claimant with his letter before action dated the 13 th January 2017, in the absence of any copy of the documents held by SO15, Ms Earl is unable to confirm if the documents sent in the letter before action were the same as the dossier referred to in the earlier correspondence by the claimant. On 22 nd November 2016, SCU responded to the claimant as set out above.
In her evidence, Ms Earl goes on to explain that it is the defendant's standard practice to treat information about an individual's immigration affairs as confidential on the basis that every individual has a reasonable expectation of privacy relating to this personal information, and the defendant considers it would be a breach of data protection principles to reveal information about an individual's immigration affairs without their consent in this context. Thus if the defendant receives an enquiry from a member of the public in relation to another person's immigration...
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