R (Ahmed Ali Samadi) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] EWHC 1806 (Admin) |
| Docket Number | Case No: CO/5455/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 June 2015 |
[2015] EWHC 1806 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG
Mr Justice Simon
Case No: CO/5455/2012
Mr Mark Schwenk (instructed by David Gray Solicitors) for the Claimant
Mr Nicholas Chapman (instructed by The Government Legal Department) for the Defendant
Hearing date: 15 June 2015
Introduction
This is the hearing of the Claimant's claim for damages for what he argues was his unlawful immigration detention for 19 days from 14 May to 1 June 2012.
In broad summary his case is that there were breaches of §55.10 of the Defendant's Enforcement Instructions and Guidance (the 'Guidance') which provides for two categories of potential detainees who will normally only be considered suitable for detention in very exceptional circumstances: (a) those suffering from serious mental illness which cannot be satisfactorily managed in detention, and (b) those where there is independent evidence that they have been tortured. It is the Claimant's case that he fell into both those categories; and that in any event the Defendant (c) wrongfully continued to detain him after it had become clear that his removal was no longer imminent.
Background
The Claimant is an Afghan national who was born on 4 July 1991. He was nearly 21 when he was detained in 2012 and is now nearly 24. He arrived in this country on 24 April 2007 and claimed asylum shortly thereafter. On 25 October 2008 a decision was made refusing his claim for asylum; but, because he was a minor, he was granted Discretionary Leave to remain in the United Kingdom until 2 January 2009. His application for an extension of leave to remain was refused on 8 September 2009. He appealed against that refusal and, in a determination promulgated on 29 October 2009, the First-tier Tribunal (Immigration Judge Duff) dismissed his appeal. The judge set out the Claimant's account and, in so far as is material to the present case, this was contained in §13.
After the death of the appellant's father his family were supported by an uncle but he too was killed approximately 3 years ago. The appellant says that that was at the hands of one of his father's enemies, a man called General Mustafa. Supporters of Mullah Hallam had killed his father. He says that he witnessed the death of his uncle. After the death of the uncle the appellant's mother was forced into producing alcohol in order to support the family. Somebody informed the authorities that they were producing alcohol. The authorities came to the house and beat both the appellant's mother and the appellant, because of selling alcohol. At some stage in his history, but the appellant is entirely unclear when, he suffered an injury to his thigh, which he believes was caused by shrapnel during a bombardment.
The Judge concluded at [22] that the Claimant's history was largely as he claimed, but decided that his asylum claim failed.
The Upper Tribunal subsequently refused the Claimant's appeal on reconsideration; and there then followed further submissions to the Defendant, the rejection of those further submissions as amounting to a fresh claim, the Claimant's application for permission to bring Judicial Review Proceedings to challenge that decision and the refusal of permission to bring that claim.
On 26 March 2012, the Claimant's current solicitors wrote to the Defendant enclosing a counselling report prepared by Freedom of Torture (previously known as The Medical Foundation for the Care of Victims of Torture). The letter requested that further consideration be given to his claim for leave to remain on a discretionary basis in the light of the Claimant's ongoing mental health problems.
The enclosed report, prepared by a counsellor, Amer Shah, was dated 4 December 2011 ('Mr Shah's 1st report'). It was the product of 24 interviews and counselling sessions with the Claimant between 15 December 2010 and 15 November 2011, although not all of these were with Mr Shah. It included the following passages:
8. At the age of fourteen [the Claimant] stepped out of a car with his uncle. His uncle was shot by a man wearing a police uniform. [The Claimant] reported he 'had his uncle's blood in his eyes'. As his uncle was dying he told [the Claimant] to run. [The Claimant] was initially frozen with terror but then fearing he too would be murdered he ran from the scene. He still suffers from flashbacks of the murder.
Mr Shah set out another part of the Claimant's account of his history under the heading: 'Presentation at our First Counselling Session':
20. Having been refused asylum, his psychological health is more fragile due to his deep fears of being tortured again or killed as his father and uncle were. The situation of being refused asylum has placed his psychological well-being at considerable increased risk.
Under the heading, 'Impact of Fear' Mr Shah's 1st report continued:
37. Concentration and memory: Trauma can be so overwhelming that it is not possible to lay memory down whilst under its effects. [The Claimant's] recollection of his past experiences has been disclosed in a fragmented and non-chronological order. This is entirely consistent with his diagnosis of P.T.S.D.…
There was a separate heading of 'Loss', in respect of which the report recorded.
45. Whilst writing this report and continuing our therapeutic work [The Claimant] was informed that his mother and the kindly neighbour who helped his family were killed by a rocket attack in a mosque. He appears disassociated and in a state of shock at the moment. [The Claimant's] psychological state is extremely fragile at the moment.
The report went on to consider 'the impact on self and identity.'
52. Suicidal ideation and self-harming behaviour: [The Claimant] has been asked if he has felt suicidal or thought of harming himself many times (including being asked by a psychiatrist and by other mental health staff) and always said that he has not wanted to kill himself. This would be against his religious beliefs. However when faced with the prospect of being forcefully repatriated to Afghanistan and brutally tortured, he has stated unequivocally and with some shame that he would commit suicide due to his level of terror.
In the 'Summary and Opinion', Mr Shah set out his conclusions under a number of paragraphs which included the following:
62. From the account [the Claimant] has given to the Home Office, to lawyers and to other mental health professionals it is clear that he has experienced profound trauma, that of witnessing his uncle murdered and has also been viciously attacked in his own home …
…
66. The above combination [a reference to a number of psychological reactions exhibited by the Claimant] has indicated a diagnosis of Post Traumatic Stress Disorder … and different professionals have made this diagnosis. It is certainly my opinion that he is suffering from significant and chronic psychological stress related to his experience.
Towards the end of Mr Shah's 1st report he returned to the issue of torture raised obliquely in §20 as part of a 'Prognosis':
77. In my opinion as a therapist working with trauma and torture survivors [the Claimant] shows psychological sequelae which are very commonly seen in a survivor of torture. Should he be allowed to continue with his psychotherapeutic treatment in the UK the prospects for him in the long term are relatively positive …
In a letter dated 14 May 2012, the Defendant rejected the Claimant's representations and refused to accept them as a fresh asylum or human rights claim; and on the same date the Claimant was detained at Harmondsworth Detention Centre and removal directions to Afghanistan were set for 27 May 2012.
On arrival at Harmondsworth Detention Centre he was medically examined by a nurse. The records indicate that he was asked the question, 'Have you been exposed to torture in your home country?' and answered, 'No'. He was also recorded as answering, 'No', to questions about whether he had ever been treated by a psychiatrist or been in hospital with mental health problems. The notes further record him as saying that he had never tried to harm himself, that he had no current suicidal thoughts and that he wished to see a General Practitioner for further assessment.
The next day (15 May 2012) the Claimant was examined by Dr Green, a GP. The handwritten notes are not easy to read, but 'several medical problems' were identified and there is a reference to an 'urgent mental health referral'.
Also on 15 May, the Claimant's solicitors wrote to the Defendant, under the heading, 'Unlawful Detention of a Victim of Torture'. The letter called for the Defendant to instruct a doctor to produce a report on the Claimant in accordance with Rule 35 of the Detention Centre Rules 2001, and for his immediate release on the basis that he was a victim of torture, suffered from PTSD and was at risk of self harm/suicide. It is now accepted on the Claimant's behalf that whether a medical practitioner had concerns sufficient to give rise to a Rule 35 report was a matter for that medical practitioner, exercising clinical judgment, and not for the Defendant or her agents to procure, see the judgment of Burnett J in R (EO and others) v. SSHD [2013] EWHC 1236 (Admin) at [50].
There is a further entry on the Claimant's medical records (which again appears to be dated 16 May). Again the handwriting is difficult to read, but it appears to say 'feels like...
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