Jamal Abdulkadir and Another v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 28 June 2016 |
| Neutral Citation | [2016] EWHC 1504 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 June 2016 |
| Docket Number | Case No: CO/5115/2015 AND CO/4711/2015 |
[2016] EWHC 1504 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: CO/5115/2015 AND CO/4711/2015
The Queen (on the application of)
Hugh Southey QC and Greg Ó Ceallaigh (instructed by Duncan Lewis Solicitors) for the Claimants
Alan Payne and Jack Anderson (instructed by The Government Legal Department) for the Defendant
Hearing dates: 4th and 5th May 2016
Approved Judgment
Introduction
The claimants are both Iraqi nationals who have sought asylum in the United Kingdom, having previously travelled through Austria. Austria has accepted that it is the State responsible for determining their claims for asylum under the Dublin III Regulation ( Regulation 604/2013) ["Dublin III"].
Each claimant challenges the decision by the Defendant to certify his human rights claim as "clearly unfounded" on the ground that they have an arguable claim that their removal to Austria would expose them to a real or substantial risk of inhuman or degrading treatment in breach of Article 3 of the European Convention on Human Rights ["ECHR"] and/or Article 4 of the Charter of the European Union. Each claimant also challenges the decision to detain him, claiming that the detention was unlawful.
By way of a late amendment, each claimant adds a third Ground as follows:
"Ground 3: In refusing to consider the claimants' asylum claims and in seeking to remove them to Austria, the Defendant acts in breach of Article 18 (read with Articles 41 and 47) of the Charter of Fundamental Rights of the European Union."
Jamal Abdulkadir – the Facts
Mr Abdulkadir is a national of Iraq, born on 1 July 1986. He had his fingerprints taken in Austria on 16 July 2015. He entered the UK clandestinely on the back of a lorry on 18 August 2015. The evidence is that having arrived in Kent, Mr Abdulkadir, along with other illegal entrants, ran from the back of a lorry. The driver contacted the police who apprehended the claimant. He was detained and fingerprinted, resulting in the Eurodac confirmation that his fingerprints had been taken in Austria as an asylum applicant on 16 July 2015. He then claimed asylum in England.
Mr Abdulkadir's statement recounts his involvement with the Kurdish fighters known as the Peshmerga, fighting against ISIS from 2014. His asylum claim is based on that involvement and on fear of retribution by ISIS.
Mr Abdulkadir's account is that he travelled to Austria via Turkey and Bulgaria. He describes being arrested and detained in Austria and kept in dirty, unsanitary and cramped conditions. He says he was subject to abuse and assault by the Austrian police as he refused to be fingerprinted and he alleges he was fingerprinted by force. Once fingerprinted, he was released. He says that he slept on the streets for five days and then used hidden money to travel on through France and to the UK, via Calais.
Mr Abdulkadir claims that he is suffering from post traumatic stress. He has bad dreams every night and "a lack of sleep as I replay all the horrific scenes I have witnessed".
The claimant underwent an asylum screening interview in England on 24 August 2015. In answer to the question "Do you currently suffer from any illness, disease or trauma injuries?" the claimant answered "No". On 15 September 2015, Austria accepted responsibility for consideration of Mr Abdulkadir's asylum claim. On 19 September, his asylum claim was certified pursuant to Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to the effect that the asylum application would not be examined in the UK, since he would be sent to Austria as a "safe third country". Removal directions were set on 28 September and on the same day the claimant wrote a letter before action, challenging his removal. On 30 September, the removal directions were cancelled for "organisational reasons" at the request of the Austrian Dublin office. On 1 October the claimant sent a further letter challenging his removal and on 5 October requested temporary admission to the UK. On 7 October, the defendant certified Mr Abdulkadir's human rights claim not to be removed to Austria as "clearly unfounded" and wholly without merit, meaning that the claimant was precluded from appealing this certification until after he left the United Kingdom.
On 15 October 2015, renewed removal directions were set for 23 October. On 22 October, the claimant issued the present claim and removal directions were cancelled. The claimant applied for bail to the First-Tier Tribunal ["FTT"] but this application was withdrawn on 5 November. On 10 November, the claimant's detention was reviewed and maintained. On 13 November the FTT refused bail in the face of a revived application on account of the risk of absconding and the likelihood of removal. On 16 November, the defendant filed an Acknowledgment of Service and Summary Grounds of Resistance. On 27 November, the claimant was granted permission to claim judicial review, an order received by the Defendant on 30 November. The Claimant's detention was then reviewed, his release authorised on 7 December and the claimant was released from detention on the following day. Later in this judgment, I will review more closely the decisions to detain and maintain detention.
Jwytar Anwar Mohammed – the Facts
Mr Mohammed is an Iraqi national born on 22 October 1990 of Kurdish Sorani ethnicity. On his account he became fearful of ISIS when he discovered that the shop where he worked was owned by members of ISIS and was being used to store weapons. When he refused to join the organisation, he was attacked and threatened, and therefore fled.
On his account, Mr Mohammed travelled through Iran, Turkey, Bulgaria and Serbia, ending in Austria. He said he had all along intended to go to the UK but was deceived by agents and left by them in Austria. After a short period, the Austrian police arrested him. He was kept in what he describes as a prison. He provided his fingerprints only after being told that if he did not do so he would have to stay in the prison. Conditions were dirty, cramped and very poor. Mr Mohammed then states that he travelled with another Kurdish man to Calais. After about nine days there, he was put into the back of a lorry by an agent. Once the lorry reached England, Mr Mohammed and his companions banged on the lorry doors to get out. According to the Defendant's records, Mr Mohammed fled from the police but was apprehended later the same day and detained in Dover Detention Centre.
On 9 September 2015, a scan of Mr Mohammed's fingerprints through Eurodac confirmed that his fingerprints had been taken as an asylum applicant in Austria on 28 August 2015. On the same day, Mr Mohammed underwent an initial asylum screening interview. His detention was continued. On 15 September, the Defendant made a formal request to Austria under Dublin III and on 18 September Austria replied, accepting the transfer of the claimant for determination of his asylum application.
On 19 September, the Secretary of State certified Mr Mohammed's asylum claim on third country grounds. On 23 September, removal directions were set for 5 October. However, on 28 September, the claimant's lawyers sent a Pre Action Protocol letter challenging his return to Austria and stating that "he did not claim asylum in Austria, but was instead fingerprinted". Mr Mohammed's detention was reviewed and maintained on 29 September. On this occasion he threatened to kill himself to prevent his removal from the UK. On 30 September, the claimant sent a further Pre Action Protocol letter advancing a human rights claim and objecting to return to Austria. On 1 October, the Secretary of State responded, certifying his human rights claim as being "clearly unfounded" pursuant to the 2004 Act, on third country grounds. Again, this had the consequence that the claimant could not appeal until after leaving the United Kingdom.
On 2 October, this claimant filed the claim for judicial review. On the following day a decision was taken to maintain the claimant's detention whilst a decision was taken whether the proceedings could be expedited. On 28 October, the decision was taken against expedition. There was a further review of detention and on 30 October, the decision was taken to release the claimant. He was released on 4 November.
In his initial screening interview of 9 September, Mr Mohammed was asked about his health. In answer to a general question about whether he had any "medical conditions", the answer recorded was "fit and well. No medication taken". In answer to the supplementary question "Is there anything else you would like to tell me about your physical or mental health?" the answer recorded was "No".
On 7 January 2016, the claimant was granted permission to claim judicial review. On 22 January 2016, this claimant signed a witness statement which includes the claim that he suffers from mental health problems:
"I suffer from feelings of anxiety and depression and do not feel as though I have been mentally stable since I left Iraq. I feel very anxious and find myself thinking a lot about what has happened. I am currently taking tablets to help me sleep and to medicate me for my anxiety and depression."
On 30 March 2016, the claimant filed an application to adduce further material, including a psychiatric report from Professor Katona which includes the conclusion that Mr Mohammed is suffering from Post Traumatic Stress Disorder ["PTSD"], likely to be the result of the threats and ill-treatment at the hands of his former employer in Iraq, and that he was "further traumatised" by his experiences as an asylum seeker...
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