PN v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 24 June 2019 |
| Neutral Citation | [2019] EWHC 1616 (Admin) |
| Docket Number | Case No: CO/5285/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 June 2019 |
[2019] EWHC 1616 (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 Lewis
Case No: CO/5285/2015
and
Charlotte Kilroy Q.C. (instructed by the Migrants' Law Project, Islington Law Centre) for the Claimant
Penelope Nevill (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 22 and 23 May 2019
Approved Judgment
INTRODUCTION
This is a claim for judicial review by PN relating to the determination of her claim for asylum and her detention in an immigration centre between 22 July 2013 and her removal to Uganda on 12 December 2013. In brief, the claimant claimed asylum on the basis that she is a lesbian and will suffer a real risk of persecution in Uganda. The defendant rejected that claim and considered that the claimant is not a lesbian but accepted that if she were and wished to live openly as a lesbian in Uganda she would suffer a real risk of persecution. Her appeal was dismissed by the First-tier Tribunal on 30 August 2013 and the claimant exhausted her rights of appeal on 10 September 2013. The claimant's asylum claim, and her appeal against the refusal of the claim, was processed within what was known as the Detained Fast Track Scheme.
In brief, the claimant contends that:
(1) permission has been granted to challenge the determination of 30 August 2013 and that determination is unlawful as the processing of the appeal within the time limits prescribed by fast track process led to unfairness in her case as (a) she was unable to obtain (a) evidence of lesbian relationships with women in Uganda and (b) a medical report prior to the appeal hearing;
(2) the decision to remove her on 12 December 2013 was unlawful;
(3) a remedy should be granted to quash the determination, and the removal decision, and requiring the defendant to use his best endeavours to facilitate her return to the United Kingdom to enable her to continue with an appeal against the refusal of her asylum claim; and
(4) her detention between 22 July 2013 and 12 December 2013 was unlawful.
THE FACTS
The facts are critical in this case. It has not been easy to determine the relevant facts. This is in part because the contemporaneous documentation is not always clear and in part because there is no witness statement from any of those actually involved in the decision-making process at the time. So far as can be ascertained, the factual position is as follows.
The Claimant's Arrival in the United Kingdom and her Detention
The claimant is a national of Uganda who was born on 20 July 1993. In about September 2010, at the age of about 17, the claimant came to the United Kingdom as an accompanying child on a visitor's visa. That visa expired on 25 February 2011. The claimant remained in the United Kingdom without leave to do so.
On 21 July 2013, enforcement officers went to an address in London. The claimant was upstairs in a bedroom. A male person was present in the bedroom. The enforcement officers forced open the bedroom door. The claimant was arrested as an overstayer, that is a person who had remained in the United Kingdom after her leave had expired.
The contemporaneous documentation records that the claimant admitted being an overstayer and did not give correct details of her identity on arrest. Her true identity was subsequently established. The documentation records that the claimant said that she was single, had no relatives in the United Kingdom, was working as a hairdresser and was paid cash in hand, had not tried to harm herself and was fit and well and not on medication. The documents record that the claimant could be removed to Uganda on the basis of existing documentation (referred to as an EU letter) and that she had no close ties in the United Kingdom and there was nothing to keep her tied to any location. One document dated 21 July 2013 is entitled “IS.91RA Part A: Risk Factors”. That document records, amongst other things, that the claimant did not have a psychiatric disorder, medical problems or concerns, was not a vulnerable adult and had no other special needs.
An immigration officer determined that the claimant should be detained rather than being granted temporary admission. The claimant was given a written document entitled the notice of detention and reasons for detention and bail rights (known as an IS.91R). That is a template document giving 6 potential reasons for detention. The reason ticked in this case was that removal was imminent. The form sets out 14 factors on which the decision might be made and the officer is to tick all that applied. In this case, the officer ticked 3 boxes, namely the claimant did not have close ties to make it likely that she would remain in one place, had previously failed to comply with the conditions of her stay and had previously failed to leave the UK when required to do so. No challenge is made to the decision to detain the claimant on 21 July 2013.
The claimant was taken to the Yarls Wood Immigration Removal Centre. She was seen by healthcare staff on 21 July 2013. The assessment records that the claimant said that she had palpitations and fainting and was upset and stressed. It records that she said that she had never been the victim of any kind of torture outside the UK. The assessment records that the claimant “appears well physically and emotionally”. There was also an assessment made under rule 34 of the relevant rules by a general practitioner at 11.20 a.m. on the next day, 22 July 2013. The assessment by the GP was that the claimant “appears physically and mentally alert. She claims she is anxious”. The claimant was referred for counselling.
The Period From 22 July 2013 to 29 July 2013
On 22 July 2013, the claimant claimed asylum. There were in operation at the time two processes by which a claim for asylum could be dealt with. One was the Detained Fast Track Scheme. I was provided with a copy of the policy document said to govern that process. It provides that the process would only be used if there was power in immigration law to detain and if, on consideration of the known facts relating to the applicant and the applicant's case obtained at a screening interview, it appeared that a quick decision was possible and none of the Detained Fast Track Suitability Exclusion Criteria applied. The document set out an indicative time scale from entry into the process to a decision on the claim of 10 to 14 days. If that process was not used, then it appears that an application for asylum would be considered by the defendant under other processes.
The claimant's screening interview was held on 28 July 2013. A decision to process her asylum claim within the Detained Fast Track process was taken on, it seems, 29 July 2013. A document entitled asylum screening interview and biometric residence permit application was completed and records that the claimant said that she came to the UK with a man in September 2010 (when she was 17). It records that the only medical condition she referred to was headaches. It records that she said she came to the UK because she was a lesbian and had to leave Uganda and feared that her uncle would kill her if she returned to Uganda.
The record of the screening interview itself notes, amongst other things, that the claimant was asked if she was in a relationship with another person in the UK or abroad. The answer recorded was that the claimant was in a relationship with a woman called Mildred, who was a British citizen, and they had been together for 7 months (i.e. during the claimant's time in the United Kingdom).
Between 21 July 2013 and the decision to process the asylum claim within the fast track process, the claimant remained in detention. There were reviews of that detention. On 25 July 2013, an officer reviewed the claimant's case. The officer considered that the claimant's asylum claim may be fast tracked and she could be removed to Uganda on an EU letter. It assessed the claimant as likely to abscond if granted temporary admission. It noted that the claimant did not have enough close ties to make it likely that she would stay in one place. She had breached her conditions of entry by staying in the UK unlawfully and had worked illegally. The officer considered that she had appeared to have applied for asylum in an attempt to frustrate her removal. The officer recommended that detention remained appropriate pending the outcome of acceptance for the detained fast track process. The authorising officer comments are recorded. The comments note that that officer agreed with the reviewing officer. The comments state referral to the detained fast track process was appropriate but also noted that if the claimant was not accepted within that process temporary release was to be considered.
During this period, the claimant was also seen in the healthcare centre at Yarls Wood. The notes should be read fairly and in their entirety. Among the medical records is a note for 24 July 2013 noting that the claimant had been observed lying on her back on her bed, breathing and with rapid eye movement and made no response when prompted to open her eyes and explain what was happening. The notes record that officers were advised that there was no medical concerns. On 25 July 2013, a note states that the claimant was seen by a nurse and said that, amongst other things, she felt giddy and occasionally fainted and could not eat. There is a reference to her saying that she had flashbacks which had begun after her grandmother died. There is a note “?PTSD” and to make an appointment for the claimant to have a general...
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