Mahmud's (Omar) Application
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2021] NIQB 37 |
| Date | 31 March 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2021] NIQB 37
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: FRI11461
ICOS No: 19/8179
Delivered: 31/03/2021
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY OMAR MAHMUD
FOR JUDICIAL REVIEW
___________
Mr Frank O’Donoghue QC and Mr Robert McTernaghan (instructed by MacElhatton
Solicitors) for the Applicant
Mr Aidan Sands (instructed by the Crown Solicitor’s Office) for the Respondent, the
Secretary of State for the Home Department
___________
FRIEDMAN J
Introduction
[1] This judgment concerns financial remedies pursuant to section 8 of the
Human Rights Act 1998 (‘HRA’). Following the outcome in In re matter of Omar
Mahmud [2021] NIQB 6 (the ‘Substantive Judgment’), it is agreed that the court
should make the following declaration:
“The failure of the Respondent to provide
accommodation and ancillary support to the Applicant
[pursuant to section 4 of the Asylum and Immigration Act
1999] between the 24 August 2018 and the 7 February
2019, on the facts of this case as found by this Court and
as set out at paragraphs [136] and [137] amounted to and
constituted inhuman and degrading treatment of the
Applicant contrary to his rights pursuant to Article 3 of
the European Convention on Human Rights.”
[2] The issues now are whether in addition to the above declaratory relief, the
court should also make an award of financial damages because it is just and
appropriate to do so, and if so, how much that financial remedy should be. The
procedural events that have led to this judgment are also described below. They
indicate some relevant considerations to pleading and adjudicating upon HRA
damages as part of the course of public law proceedings.
2
Substantive Proceedings
[3] The claim for Judicial Review was issued on 25 January 2019. There were two
grounds. Ground 1 (which the court in due course did not allow) dealt with the
claimed irrational or otherwise unlawful refusal of the Applicant’s further
submissions in support of a fresh claim for asylum. Ground 2 (which the court did
allow) dealt with the rejection of the Applicant’s renewed claim for asylum support,
which was found to amount to a breach of Article 3 ECHR. As a result of leave
being granted on 7 February 2019, the Respondent became obliged to renew asylum
support, including to provide accommodation, by virtue of Regulation 3(2)(d)(iii) of
The Immigration and Asylum (Provisions of Accommodation to Failed Asylum
Seekers) Regulations 2005 (the ‘2005 Regulations’). By that stage, the Applicant had
been homeless and without recourse to lawful livelihood or legal and financial
means of accommodation for 167 days.
[4] As dealt with in the substantive judgment at paragraphs 120 to 121, the Home
Office defence to Ground 2 evolved throughout the life of the proceedings. First, it
was asserted that the claim was academic, because the Applicant was re-housed,
although that left unanswered whether the preceding period of destitution was
lawful. Second, it was said that the fault for his situation lay with the Applicant who
refused to leave the country when his asylum support was stopped at the same time
as the refusal of his fresh claim submission in May 2018. Due to administrative
error, the Home Office subsequently realised that it had failed to compute that
alongside additional further submissions, the Applicant made several efforts to
renew his asylum support between June and November 2018. Third (having
discovered after an adjourned hearing that two applications and various
communications for renewed support were lost in the system) the Respondent
doubted the Applicant was ever in fact street homeless, or at imminent risk of being
so; but also blamed the Applicant for relying on the Home Office contracted agency
services, principally provided for by Migrant Help, to process the applications.
[5] The court rejected the final incarnation of the defence at paragraphs 136 to 137
of its judgment, finding that the Applicant was either rough sleeping, or at imminent
risk of the same during the relevant period. Through that time he suffered from
documented symptoms of depression, anxiety and PTSD, which were aggravated by
bereavement, but also the socially disabling uncertainty of his legal and financial
situation as governed by the mandatory requirement to have no other recourse to
public funds. At paragraph 134 I additionally rejected the submission (no longer
maintained by the time of the relief hearing) that Migrant Help should be treated as
only the Applicant’s agent and/or that the Home Office could avoid constructive
knowledge of what was done by Migrant Help in its capacity as a subcontracted
agent of the Home Office.
[6] For reasons dealt with at paragraphs 138 to 141, I was not prepared to deny
declaratory relief on the basis that a properly considered application for renewed
support could have ended in a lawful refusal. That issue was not for the court to
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2 cases
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Omar Mahmud and Secretary of State for The Home Department
...Secretary of State”). [3] The adjudication of the High Court continued, giving rise to a further judgment delivered on 31 March 2021: see [2021] NIQB 37. By this judgment the court determined the appellant’s claim for damages. The court decided that an award of £1750 damages should be made ......
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Omar Mahmud v Secretary of State for the Home Department [No.2]
...(“the SSHD”). [4] The adjudication of the High Court continued, giving rise to a further judgment delivered on 31 March 2021: see [2021] NIQB 37. By this judgment the court determined the appellant’s claim for damages. The court decided that an award of £1750 damages should be made to him. ......