R AM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Michael Ford |
| Judgment Date | 25 May 2021 |
| Neutral Citation | [2021] EWHC 1373 (Admin) |
| Docket Number | Case No: CO/526/2021 |
| Date | 25 May 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1373 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Ford QC, sitting as a Deputy High Court Judge
Case No: CO/526/2021
Mr Allan Briddock (instructed by Duncan Lewis Solicitors) for the Claimant
Mr Simon Murray (instructed by Government Legal Department) for the Defendant
Hearing date: 28 April 2021
Approved Judgment
Michael Ford QC, sitting as a Deputy High Court Judge:
Introduction
The Claimant, AM, is an Albanian national, who was born in 1978. He arrived in the UK on a fishing boat alongside 69 other immigrants on 18 November 2020. On arrival he was identified as an illegal migrant, arrested by police and detained under immigration powers in Schedule 2 to the Immigration Act 1972 at Southend Police Station. Since then he has been held in immigration detention, so that his current period in detention is almost six months.
AM has made an asylum claim and a claim to be a victim of trafficking, neither of which had been resolved at the date of the hearing. He was convicted of murder in Albania and served, it appears, 12.5 years in prison there; he denies the offence and claims he was wrongfully convicted. On around 29 December, the Defendant received a report from a medical practitioner, made under rule 35(3) of the Detention Centre Rules 2001, expressing his opinion that AM may have been the victim of torture and that continued detention would lead to a deterioration in his mental state. Accepting on the basis of the report that AM was an adult at risk, at level 3, the Defendant decided to continue his detention, for reasons initially set out in a letter dated 6 January 2021.
The judicial review claim, challenging the lawfulness of AM's detention, was issued on 15 February 2021. It sought the release of the Claimant, a declaration, damages for false imprisonment and interim relief. The application for interim relief was refused by John Howell QC, sitting as a Deputy Judge of the High Court, by Order dated 23 February 2021. The Judge also ordered that the application for permission should be dealt with as soon as practicable. By Order dated 19 March 2021, David Lock QC, sitting as a Deputy High Court Judge, granted permission and ordered an expedited hearing.
At the hearing before me, AM's challenge was based on the lawfulness of his detention during the period following the date of receipt of the rule 35 report on 29 December, allowing a short period for the Defendant to make arrangements to release AM. There were two grounds of challenge: first, that his detention was in breach of the Hardial Singh principles, derived from R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704; and, second, that his detention was in breach of the Defendant's policies relating to particularly vulnerable detainees. I was greatly assisted by the focused written and oral submissions of both counsel.
No anonymity order has been made in respect of AM but an application was made for anonymity, to which Mr Murray did not object.
Relevant Facts
There were many documents before me, including the records of the detention reviews and the GCID notes. Below I summarise the critical facts, relevant to what was known to the Defendant at the time(s) in respect of which the lawfulness of the detention was challenged. Owing to how the challenge was put in the grounds for judicial review, I have divided the facts into the period before the rule 35 report and the period afterwards.
Prior to the rule 35 report. On 19 November, after arrival in the UK, AM was transferred to immigration detention. He told an immigration officer that, while in Belgium, he overhead people discussing about leaving for England on a boat, and was told he needed to pay £2000–3000 but he did not pay anything and was only supposed to pay on arrival in the UK. He provided originals of documents, in Albanian, giving details of his criminal conviction in Albania for murder. Once translated into English on 10 February 2021, these documents provided extensive information to the Defendant about AM's conviction for “Intentional Murder”, contrary to the Albanian Criminal Code, including the circumstances of the killing of the female victim in 1997, the evidence of witnesses about the murder, and details of the court proceedings.
AM claimed asylum on 20 November. On the same day, his first detention review took place which referred to a medium risk of absconding because of his lack of family ties in the UK. An assessment on 23 November recorded that there were no concerns about his health or vulnerability and noted that because Albania is NSA country, meaning a country listed in s.94 of the Nationality, Immigration and Asylum Act 2002, he would be removed within a reasonable period of time if his asylum claim were refused.
AM was inducted at Yarl's Wood detention centre on 26 November. He answered “no” to whether he had been subject to exploitation, such as forced labour, in his country of origin or on the way to the UK but answered “yes” to whether he had been a victim of torture, saying he had been bullied and beaten by police officers while in prison.
There is some confusion about the exact date of AM's asylum screening interview, but it was around the end of November. At that interview, he gave details of his journey to the UK via Germany, Sweden and Belgium. He again denied ever being exploited, such as being forced to carry out work. He said he had claimed asylum in Sweden, and repeated that he did not have to pay anything to come to UK.
In relation to his why he had come to the UK, AM said this was because of a “blood feud” which also prevented his returning to Albania. According to the notes, in 1997 he said he was accused of murder and sent to prison between 2006 and 2020. AM said he was at risk of being killed by the family of victim if he returned, explaining that it was the former police officer who prosecuted him in 2006 who in fact had killed the victim. He also explained he had been sentenced to 15 years for the murder conviction but only served 12.5 years. This matter came to the attention of the officer who reviewed AM's detention on the same day.
A detention review took place on 2 December. The authorising officer said that negative immigration factors outweighed the presumption in favour of release, referring to the risk of absconding and the potential risk to the public arising from AM's conviction. The decision was taken to maintain detention until his asylum interview on 8 December.
On 7 December an ad hoc review took place because AM had been refusing food. On the following day, 8 December, the claimant refused to be interviewed at his asylum interview, saying he had been on a hunger strike for the past seven days. The notes also record his saying he was unwell. On 11 December, the notes record that he refused to come down to a second attempted asylum interview, saying that he needed to see a doctor. The day before he had complained to an officer of health problems and said he was not willing to attend his asylum interview without a letter from the police, which he had requested.
Following these refusals AM was referred by the Defendant to IRC Healthcare, who advised that AM did not have a chronic medical condition, although he had complained of insomnia and stress, and he could be interviewed “if he is feeling well enough on the day”. As a result of his refusal to be interviewed, on 19 December a letter was sent to AM, requiring him to produce a witness statement for his asylum claim, to which he did not respond.
In the meantime, on 13 December the Defendant obtained information from Europol, giving the following criminal record information about AM: (i) that in 2006 a warrant was issued because of what were described as offences of “Theft” and “Meaning of Collaboration”; and (ii) in 2009 he had been convicted of “Murder with Intent” and sentenced to 15 years' imprisonment.
It seems from around late November the Defendant had been making e-mail enquiries of the Single Competent Authority (“SCA”), the independent body responsible for identifying victims of modern slavery under the National Referral Mechanism (“NRM”), set up under the Modern Slavery Act 2015. The Defendant's staff wanted to know when the SCA could process NRM decisions about the Albanian migrants, including AM, who arrived together on the same boat. These documents were only disclosed at the hearing, and were not referred to in the witness statement of Ms Vaughan; but Mr Briddock did not object to their production.
The NRM proceeds in three stages: (i) a “Reasonable Grounds” decision by the SCA when the SCA suspects an individual is a victim of modern slavery, which includes human trafficking and forced labour; (ii) if that decision is positive, a 45-day “reflection period”; (iii) at the end of the 45-day period, a “Conclusive Grounds” decision, determining whether on the balance of probabilities the individual is a victim of modern slavery (see the Modern Slavery Statutory Guidance, Version 2.1, at p 52). In response to a question about the anticipated timetable for dealing with the migrants on the boat who had received a positive Reasonable Grounds decision, Stephanie Lee, Head of Decision Making in the SCA, told the Defendant that, while it was difficult to provide a specific timetable, it was the SCA's intention to expedite the process and they “would anticipate that [the Conclusive Grounds decisions] would be concluded with 3 months of 45-day reflection period ending” (see e-mail of 18 December 2020).
At that stage AM had not been referred into the NRM. That occurred four days later, on 22 December, after...
To continue reading
Request your trial