Mohsen Khaleseh v The Home Office
| Jurisdiction | England & Wales |
| Judge | HHJ Coe |
| Judgment Date | 23 October 2015 |
| Neutral Citation | [2015] EWHC 2995 (QB) |
| Date | 23 October 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14X02171 |
[2015] EWHC 2995 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hhj Coe QC
Sitting as a Judge of the High Court
Case No: HQ14X02171
Mr C. Buttler (instructed by Leigh Day) for the Claimant
Mr V. Mandalia (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 14 October 2015
HHJ Coe QC:
This is the Claimant's claim for damages for false imprisonment arising out of his detention by the Defendant at Dover Immigration Removal Centre ("IRC") between 27th November 2013 and 20th February 2014. The matter is listed for trial of liability only. If necessary, quantum will be dealt with at a later hearing.
The Claimant originally also pursued a claim in respect of his period of detention between 14th November 2013 and 27th November 2013, but that part of the claim has been abandoned.
Apart from the skeleton arguments prepared for each side I have a trial bundle and a bundle of authorities. The Defendant added the case of the SN v SSHD [2014] EWHC 1974 (Admin). I heard oral evidence from the Claimant and from the Defendant's witness Mr Richard Pulham. Pursuant to an application dated 22nd September 2015 to which there was no objection I granted permission to the Defendant for Mr Pulham to give evidence adopting the witness statement in the trial bundle of Miss Janelle Roberts as his own, due to the unavailability of Miss Roberts who is on maternity leave.
The Claimant, Mr Khaleseh, is an Iranian national born 4 th January 1984 and who is therefore now 31 years old. He arrived in the United Kingdom on 12th November 2013 concealed in the rear of a lorry amongst a load of car parts. He was discovered at 10.05 by border force officers. Thus he arrived clandestinely. A EURODAC search revealed that the Claimant had been fingerprinted in Italy where he had entered illegally on 22nd October 2013. A screening interview was carried out on 12th November 2013 between 14:40 and 15:00 hours. An interpreter was present. The Claimant speaks Farsi. The Farsi-speaking interpreter was from Afghanistan. It was identified that the Claimant was claiming asylum. He was transferred to the Dover IRC arriving in the early hours of 13th November 2013.
Meanwhile Italy was asked to take charge of the Claimant's asylum claim. Italy ultimately by default accepted responsibility for the transfer of the Claimant pursuant to the Dublin II Regulation on 13th December 2013. By decision letter dated 17th December 2013 the Defendant notified the Claimant that his asylum application would not be considered substantively because he would be removed to Italy. In response to that solicitors, Duncan Lewis, wrote a pre-action protocol letter dated 7th January 2014 which is at p.398. The Defendant's response to that letter is at p.436. The letter from Duncan Lewis made no reference to the current false imprisonment claim.
Solicitors for the Claimant, Leigh Day, who act in these proceedings, wrote a letter to the Defendant which is at p. 443 in the bundle. That is also a pre-action protocol letter seeking the Claimant's release and damages for false imprisonment based on the Defendant's breaches of Rules 34 and 35 of the Detention Centre Rules ( SI 2001/238) and the Defendant's published policy. There is no response to that letter. It seems that the Defendant wrongly concluded (p.553) that the letters covered the same ground and that no response was required to the letter from Leigh Day. Thereafter a Claim Form was issued in the Upper Tribunal challenging the Defendant's decision to issue removal directions and those removal directions were suspended. On 17th February 2014 a claim for judicial review was issued challenging the Defendant's refusal to release the Claimant from immigration detention. On 20th February 2014 the Claimant was granted temporary admission and released from detention. Pursuant to a Consent Order in the "challenge to the refusal to release" proceedings, the claim (this claim) was transferred to the Queen's Bench Division.
For the sake of completeness, I should add that from March 2015 the Claimant was re-detained and was in detention for a further period of time in respect of which further proceedings were issued (and I think transferred to the Queen's Bench Division). However those proceedings are stayed pending the outcome in this case. There has not yet been a decision in respect of the "third country" appeal.
The notes of the screening interview on 12th November 2013 are at pp. 264–282 in the bundle. The Claimant indicated that he was fit and well and that he understood the interpreter. He understood that he had entered illegally. He said that he had left Iran 12 or 13 days previously and could not remember which countries he may have travelled through. He said that he had come to the UK to claim asylum. He said that he was a follower of the Ahl-e Haqq religion which is illegal in Iran. He was distributing leaflets and he was found out and had to leave. He said that he had no criminal convictions. As is apparent from the form at p.267 the Claimant was told that the questions that he was about to be asked related to his identity, background and travel course to the United Kingdom and that the information would be used mainly for administrative purposes. He was told that he would not be asked at that stage to go into detail about the substantive details of his asylum claim, but that that would be done at a later interview. Of course, the decision having been taken to remove the Claimant to Italy for his asylum claim to be determined, there was no substantive asylum claim interview ever carried out.
The Claimant told the officer in the screening interview that he had suffered from a form of leukaemia, but had been treated and was healthy at that time. He identified that he belonged to a minority religion. He said that his friend had been arrested and that he was forced to leave Iran. He said that his father had been summoned to court some years previously to speak about his religion and was interrogated and died. He denied that he had ever been arrested and charged with or convicted of an offence in any country, but said that he was "wanted" because of his religion and because he had been preaching.
At p.225 in the bundle is a Patient Record from Dover IRC showing that at 10.14am on 13th November 2013 at the health centre the Claimant was seen by a nurse. He was asked a series of questions and in response to a question as to whether or not he had been the victim of torture, it is recorded that he answered "yes" because a "new episode" is referred to. There is a record at 10.30 with the same nurse which reads that the Claimant "claims he has been tortured – for MO". In other words he was going to be referred to the doctor.
He was seen by Dr Naveed Tippu at 9.44am on 14th November where he was examined and where he supplied information about his non-Hodgkin's lymphoma and its treatment. There is no mention of torture in the record. No Rule 35 report was prepared at that time. It was this failure by the doctor that formed the basis of the claim in respect of the period of detention prior to 27 th November which has now been abandoned.
However, at p.121 in the bundle is a Rule 35 report from Dr Tippu on the Claimant. It is dated 23rd November 2013. Dr Tippu has ticked the box which reads "I have concerns that this detainee may have been the victim of torture". It sets out: — "Alleges that he was arrested on a number of occasions last year and was detained for a total of 2 months. He was beaten with a cable. He belongs to the Al-Haq division of Islam which is not recognised in Iran. His father was killed for his belief. Says he will be killed if he returns to Iran. He has a number of scars which are recorded on the body map. Impression: this is an account given by Mr Khaleseh. Injuries might be consistent with scars from a beating with cables". The body map shows approximately 11 scars identified as those which might be consistent with scars from beating with cables. It is apparent from the record on p.229 that the Rule 35 form was completed and copies were given to the Claimant, the Centre manager and "immigration".
The Defendant through their caseworker Tracy Nicholls responded to this report by letter dated 27th November 2013. The document is at pp. 126 – 127 in the bundle. It sets out that it is in response to the Rule 35 report and sets out the Claimant's account of events as given to Dr Tippu, including that "The Doctor has stated that this is an account given by you and your injuries might be consistent with scars from a beating with cables". It then goes on to summarize the information obtained from the Claimant on 12 th November at the screening interview. That paragraph concludes "It is not considered unreasonable to have expected you to mention such a significant life event; such as being tortured, when asked the above questions".
Miss Nicholls correctly quotes the relevant definition of torture taken from the case of R (EO and Others) v SSHD [2013] EWHC 1236 (Admin) ("EO") which refers to the use of intentional infliction of physical or mental pain or suffering "for any such purpose as…punishing him for an act". The last sentence of that paragraph reads "you have not stated what information was demanded of you and/or what … you were expected to confess".
The conclusion is that the information contained within the report submitted by the IRC staff has been considered and reviewed and having taken into account "that you have not provided...
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