R Ali Abubakar Mohamed v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Andrew Henshaw |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] EWHC 3547 (Admin) |
| Docket Number | Case No: CO/1865/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2018 |
[2018] EWHC 3547 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Henshaw QC (sitting as a Judge of the High Court)
Case No: CO/1865/2018
Grace Brown (instructed by Duncan Lewis Solicitors) for the Claimant
Naomi Parsons (instructed by Government Legal Department) for the Defendant
Hearing date: 7 November 2018
Judgment Approved
Mr Andrew Henshaw QC:
| (A) INTRODUCTION | 2 |
| (B) GROUND 1: UNLAWFUL DELAY | 2 |
| (1) Facts | 2 |
| (2) Law and Policies | 6 |
| (3) Application to the present case | 12 |
| (C) GROUND 2: UNLAWFUL DETENTION | 15 |
| (1) Legal context | 16 |
| (2) Policy | 23 |
| (3) Legal basis of detention | 27 |
| (4) Provision of monthly reports | 30 |
| (5) Risk of reoffending and risk of harm to the public | 31 |
| (6) The Claimant's ‘character, conduct or associations’ | 34 |
| (7) Alleged failure to apply policy: EIG paras 5.3.A and 55.3.1 | 34 |
| (8) Emergency Travel Document | 34 |
| (9) Conclusion on Ground 2 | 35 |
| (D) OVERALL CONCLUSIONS | 35 |
(A) INTRODUCTION
The Claimant in this application for judicial review alleges:
i) that there has been unlawful delay in determining his application made in 2005 for indefinite leave to remain (“ ILR”) and his asylum claim made in 2015 (“ Ground 1”), and
ii) that his detention since 22 January 2018 has been unlawful (“ Ground 2”).
The Claimant seeks:
i) a mandatory order requiring the Defendant to determine the Claimant's ILR application and asylum claim within 28 days or such other period as the court considers reasonable;
ii) a declaration that his continuing detention is unlawful by virtue of being in breach of common law, of the Defendant's published policies and of Article 5 of the ECHR;
iii) damages for the manifestly excessive delay in determining his ILR application; and
iv) damages for unlawful detention including aggravated and exemplary damages.
(B) GROUND 1: UNLAWFUL DELAY
(1) Facts
The Claimant states that he was born on 24 February 1996 in Yemen. While still very young, he was taken by his mother to live in Somalia, where he lived with her until he was about 3 years old. After this time, he says he remained in Somalia living with his maternal grandmother, but has had no further contact with his mother.
The Claimant says he arrived in the UK aged about 9 to join his father, Mr Habib Abubakar. His father was on 14 January 1999 granted indefinite leave to remain, and on 10 December 2002 was naturalised as a British citizen. Mr Habib Abubakar is married with seven children, the Claimant's half-siblings, all of whom are younger than the Claimant. The Claimant says he had not known his father until he arrived in the UK, as his father had left Yemen for Kenya prior to the Claimant's birth.
The Defendant's immigration history for the Claimant recorded that he entered the UK on 8 August 2002 with his mother and siblings. However, the Defendant now accepts that that was inaccurate. The Defendant does not know when the Claimant entered the UK, although he accepts that the Claimant was in the UK by the time of his application for indefinite leave to remain on 18 January 2005. It appears that the Defendant was for some time labouring under the misapprehension that the Claimant's immigration status was dependent on an asylum claim made by his mother.
On 18 January 2005, an ILR application was made on the Claimant's behalf as a dependent of his father. The Defendant's GCID notes of October 2005 state that the Claimant's case was placed in a “work in progress hold” due to the Defendant's workload. Cases were to be called from such holds as staff became available to deal with them. Letters of 6 July 2007 and 29 May 2008 to the Claimant's Member of Parliament, Harry Cohen MP, stated that the Claimant did not have valid leave to remain at the time of his entry into the UK, and that the number and complexity of “ cases of this type” meant that the processing time could be longer. However, the 6 July 2007 letter also stated that the Claimant's application, whilst it had been forwarded to a casework unit, was still “currently awaiting allocation to a caseworker”.
The May 2008 letter said:
“… It may be helpful if I explain that in fairness to all those with outstanding applications, cases are normally dealt with in turn unless there are compelling, compassionate or other exceptional reasons for doing otherwise… The UKBA do consider expediting applications if there are sufficient compassionate circumstances to warrant doing so, but the onus is on the applicant to provide documentary evidence to support such a request. In Master Mohamed's case, however, it was decided that there appeared to be insufficient grounds to take his application out of turn. It is noted that he is now at secondary school and would like his status to be the same as that of his school friends, however, he is not required to leave the United Kingdom whilst his application is under consideration and this is not considered to be a sufficient reason to treat his application exceptionally.”
The ILR application remained outstanding at the date of the hearing before me.
On 28 February 2012 the Claimant, who had then just turned 16, was convicted of wounding with intent to cause grievous bodily harm (offence committed 18 October 2011) and sentenced to 4 years and 6 months in a young offenders institution. The sentencing judge remarked as follows:
“you struck someone in the back with a blade between 9 and 12 inches long… that knife in the back of a young man could so easily have caused death… I am entirely satisfied that this is a Category 1 offence. Great harm was caused. As far as higher culpability is concerned, of course the use of that dreadful weapon is a huge aggravating factor. Its use in that way could only have risked death. You deliberately, by the choice of that weapon, caused more harm that was necessarily to be caused even by the use of an ordinary knife, and of course you did this when you were surrounded by others… If you were an adult, if you were 21 or 22, then this offence, following a full trial would justify a sentence… of 13 years' imprisonment”.
The following day, 29 February 2012, the Claimant was convicted of two counts of burglary of a non-dwelling with intent to steal (offence committed 8 August 2011) and sentenced to a Detention and Training Order (eight months and six months, concurrent with the sentence passed the previous day).
Following these convictions the Claimant's case was transferred to the Defendant's Criminal Casework Directorate (“ CCD”) in February 2012.
Deportation was considered from February 2013, during which time there was no progress on the ILR application.
The Claimant was released on licence and on immigration bail on 17 January 2014.
In April 2014, the Defendant advised the Claimant's representative that “ Mr Mohamed's case is currently under consideration for deportation and his outstanding ILR application will form part of our consideration process”.
On 22 January 2015, the Claimant applied for asylum and his claim was accepted into the Defendant's Non-Detained Asylum process. He had a screening interview on 22 January 2015, and a substantive asylum interview was scheduled for 3 June 2015. The Claimant was by that stage in custody, having been arrested for the offences referred to below. There was, however, no evidence before me that that fact would have prevented an interview from proceeding, and it was submitted by counsel for the Claimant that asylum interviews are frequently conducted of persons in custody.
On 14 February 2015 the case was transferred to Op Nexus High Harm Team, and it was allocated to a particular case worker on 18 May 2015 to consider deportation on the basis of the Claimant's previous offending.
In May 2015 the Claimant was arrested for firearms offences. The deportation process was put on hold pending the determination of the asylum claim.
On 7 July 2015 the Claimant was convicted of two firearms offences: possession of a firearm and possession of ammunition, it having been a loaded firearm. On 16 July 2015 he was sentenced to 5 years' imprisonment. On the same occasion the Claimant was convicted of possession of a Class B drug (cannabis) but no separate penalty was imposed for that offence. With respect to the firearms offences, the sentencing judge's remarks included the following:
“[The firearms offences] are … enormously serious offences. So much so that Parliament has decided that there should be a minimum sentence imposed upon a defendant… a sentence of five years… I am obviously concerned in your case that the firearm was of a professional military grade, that it had ammunition loaded within the firearm and there was further ammunition which was matched for use with that firearm. So that takes the offence up a notch. … I accept on your basis of plea, you were holding the firearm and ammunition for another in return for an ounce of cannabis, … you knew, or must have known, that it was either that you were holding cannabis or a firearm. But in the circumstances of this case the Crown very fairly have said the feel of it might well have been equally consistent with it being cannabis. So I take that into account as well.
But I must look at your history and your past history is not good… You are aged only 19 now but you have a conviction for wounding with intent. … You are building a substantial criminal record and you now have a history of violence and couple with that a history now of having a firearm and ammunition. It is now an appalling record…”
On 22 February 2016 the Defendant issued a Notice of a Decision, signed on...
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