R AB v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Dan Squires |
| Judgment Date | 17 July 2019 |
| Neutral Citation | [2019] EWHC 1969 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/820/2019 |
| Date | 17 July 2019 |
[2019] EWHC 1969 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires QC sitting as a Deputy High Court Judge
Case No: CO/820/2019
and
Ronan Toal (instructed by Wilson Solicitors LLP) for the Claimant
Jennifer Gray (instructed by Government Legal Department) for the Defendant
Hearing date: 18 June 2019
Approved Judgment
Dan Squires QC sitting as a Deputy High Court Judge:
Introduction
The Claimant is a foreign national who has been in immigration detention since 4 February 2018. The Defendant is the Secretary of State for the Home Department (“the Secretary of State”).
This claim for judicial review concerns the legality of the Claimant's detention for the period from 27 March 2019 and currently ongoing. On 1 May 2019 Laing J granted permission to the Claimant to challenge: (i) the lawfulness of his detention from 27 March 2019 and (ii) the lawfulness of the decision to maintain the Claimant's detention after a place in Approved Premises (“AP”) became available for him on 30 April 2019. As to (i), the Claimant contends that, in breach of Home Office Guidance, insufficient weight was given to recommendations of the Secretary of State's Case Progression Panel that he be released and/or insufficient reasons were given for disagreeing with the Panel's recommendations, and that had the recommendations been followed he would have been released on 27 March 2019. As to (ii), the Claimant contends that his detention, in any event, became unlawful on 30 April 2019 when the AP place became available as he then satisfied the conditions for immigration bail, granted by the First Tier Tribunal on 2 April 2019. The Secretary of State maintains that the Claimant's detention was at all times lawful, but that if any errors were made in the detention process they did not alter the outcome, which is that the Claimant would have been properly detained throughout the material time in any event.
As will become clear below, a number of matters arose shortly before and during the hearing on 18 June 2019 and new material provided to me at the hearing. I gave the parties the opportunity to make written submissions on those matters after the hearing was complete. I am grateful to the parties for those submissions and grateful to counsel for the clear and helpful way the rival cases were put orally and in writing.
Factual background
The Claimant's immigration history
The Claimant is a Somali national who was born on 1 March 1996.
On 30 March 2014 the Claimant arrived in the UK and claimed asylum at port. In his asylum interview he gave an account of having been abducted in 2013 from his home in Somalia by Al-Shabaab (the armed group that had, at various times, controlled substantial portions of Somalia). Prior to the abduction the Claimant lived with his family at a camp for Internally Displaced Persons in Elasha Biyaha (a town on the outskirts of Mogadishu). After he was abducted the Claimant claimed to have then been detained for several months and forced to work for Al-Shabaab in their camp — cooking, cleaning and doing agricultural work. He claimed that he managed to escape from the camp when there was fighting between Al-Shabaab and another armed group. About two months later, he left Somalia and travelled to the UK.
The thrust of the Claimant's asylum claim on arrival in the UK was that he feared a return to Somalia because he would be targeted by Al-Shabaab, in particular as he was a member of a minority clan, the Sheqel.
On 14 January 2015 the Claimant was refused asylum. The Secretary of State accepted that he had “incidents with Al-Shabaab” in Somalia, but concluded that he would not be at real risk of harm from them if he returned.
The Claimant appealed the Secretary of State's decision to the First Tier Tribunal (“the FTT”). On 19 March 2015 his appeal was dismissed. The judge found that although he had suffered serious harm from his capture and subsequent treatment by Al-Shabaab, he did not have a well-founded fear of further harm from the group. The judge found that the Claimant was not at risk of harm falling within Articles 2 or 3 of the European Convention of Human Right (“ECHR”) and his Article 8 claim also failed. Permission to appeal to the Upper Tribunal was refused on 3 August 2015.
On 27 November 2015 the Claimant was convicted of a sexual assault by Doncaster Magistrates. On 29 January 2016 he was convicted of battery by the same Magistrates. On 25 July 2016, at Bradford Crown Court, the Claimant was convicted of wounding with intent to do grievous bodily harm, assault by beating and breach of a bail order for failing to surrender to custody at an appointed time. He was sentenced to 3 years and 8 months imprisonment. The grievous bodily harm conviction followed the Claimant stabbing his partner in the head with a steak knife. According to the judge's sentencing remarks, the Claimant initially did not call the emergency services believing it would lead to his apprehension. Subsequently the Claimant called the police claiming he had been attacked by the victim.
On 6 August 2016 the Secretary of State determined that the Claimant was liable for deportation and on 29 November 2016 a deportation order was made against him. On receipt of the deportation order the Claimant stated he feared returning to Somalia. That was taken to be a further asylum claim.
On 11 January 2017 the Claimant underwent an asylum screening interview. He again claimed that his life was in danger from Al-Shabaab. He explained that his claim was now different, as his mother had been killed by Al-Shabaab in early 2015. On 3 February 2017 the Claimant presented further submissions in support of his asylum claim in the form of a handwritten letter stating that Al-Shabaab had been looking for him and when they could not find him had killed his mother and taken his sister. He claimed it was too dangerous for him to return to Somalia given the threat from Al-Shabaab.
On 18 September 2017 the Secretary of State decided that the further submissions did not constitute a fresh claim within the meaning of paragraph 353 of the Immigration Rules. The Secretary of State noted the claim regarding the Claimant's mother's death but stated that he had provided no indication of how that made him more likely to face persecution or other threats if he returned to Somalia. In the Secretary of State's view it therefore did not constitute a new ground which might cause an immigration judge to arrive at a different conclusion to that already reached.
On 4 February 2018, at the end of his sentence, the Claimant was not released but detained under Immigration Act powers as a person against whom a deportation order had been made. It was stated in the minute of the decision to detain that the Claimant's risk of absconding was “low” but that his risk of reoffending was “high”. It was said that if he was not in detention he would pose a high risk of re-offending and a high risk of harm to the public, and that this risk outweighed any presumption in favour of release.
On 31 July 2018 the Secretary of State made a further decision refusing to accept the Claimant had made a fresh asylum claim within the meaning of paragraph 353 of the Immigration Rules and on 21 August 2018 issued a “notice of removal window” indicating that the Claimant would not be removed for five days, but thereafter could be removed without further notice within three months of the notice.
The Claimant's further submissions and October 2018 judicial review
On 6 September 2018 the Claimant's solicitors sent further submissions in support of the Claimant's asylum claim. They enclosed a photocopy of a document purporting to be a “death certificate” signed by Colonel Omar Abdi Ilmi of the Somalia Police Force. The certificate stated that the Claimant's mother (“FA”) had been shot in October 2015. It continued:
“As a result, the son of [FA], [the Claimant] received death threats from individuals claiming to be Al-Shabaab. Stating the death of his mother was direct result of him leaving the country and evading Al-Shabaab recruitment. These suspected Al-Shabaab members claimed that they were also on the hunt for [the Claimant] as they cannot afford to be seen lenient towards him.”
On 15 October 2018, the Claimant's solicitors sent a pre-action protocol letter. They enclosed a statement from the Claimant on how he had found out about his mother's death. The letter also submitted that the further evidence, taken together with that of 6 September 2018, constituted a fresh human rights and protection claim. Also on 15 October 2018 the Claimant issued judicial review proceedings challenging the decision to maintain the “notice of removal window”. On the same day Upper Tribunal Judge Kopieczek ordered a stay on the Claimant's removal in the light of “what appear to be further submissions made to the respondent which have not, apparently, been dealt with”.
On 5 November 2018, the Secretary of State filed an Acknowledgment of Service. He agreed to withdraw the decision to remove the Claimant and to consider his further submissions. A consent order was sealed to that effect on 4 December 2018. The recital stated that the claim was being withdrawn upon the Secretary of State “agreeing to reconsider the [Claimant's] further submissions dated 6 September 2018.” The Secretary of State also agreed to allow the Claimant 28 days to provide further evidence and to issue a decision on the fresh claim within three months of any further evidence.
Assessment of Claimant as victims of trafficking
On 6 November 2018 the detention centre...
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