R Brightwood v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Andrew Thomas |
| Judgment Date | 25 May 2016 |
| Neutral Citation | [2016] EWHC 3628 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 May 2016 |
| Docket Number | CO/2339/2016 |
[2016] EWHC 3628 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Andrew Thomas QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/2339/2016
Mr Chris Buttler (instructed by Leigh Day & Co) appeared on behalf of the Claimant
Ms Carine Patry (instructed by the Government Legal Department) appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is an application for interim relief. The background is that the claimant is now 33 years of age, born on 5 February 1983. He states that he is of Rwandan ethnicity. He came to the United Kingdom in 2000 at the age of 17. He claimed asylum and was granted refugee status in 2000 by the Secretary of State. He was granted indefinite leave to remain and was assisted by social services on his arrival.
In his early 20s on two occasions he was fined for relatively minor criminal offences. In 200, when he applied for naturalisation as a British citizen, his application was refused on the grounds of those convictions. He settled down in London. He found accommodation. He formed a relationship, and, together with his partner, he had a child, now aged eight. That relationship has broken down and his partner has now settled with someone else. There is no established family tie in this country.
On 5 October 2012, the claimant was arrested in Norwich on suspicion of supplying Class A drugs. He was remanded in custody. He pleaded guilty to conspiracy to supply Class A drugs and related money laundering offences. He was sentenced on 18 February 2013. In the context of such cases it was a relatively sophisticated offence, involving the movement of drugs between London and Norwich. His role was to rent a flat in Norwich from which the drugs could be sold, supplying also mobile phones and vehicles. The criminal property he received was valued at £17,000.
The sentence passed was 4 years and 4 months. The time he had spent in custody was automatically taken into account. In ordinary circumstances he would have served one-half in custody and then would have been released on licence. His automatic release date was calculated to be 7 December 2014, but the consequence of the conviction was that the claimant was classed as a foreign national offender for the purposes of the UK Borders Act 2007. The Secretary of State reviewed his refugee status, and, on 25 November 2014, gave notice of her intention to revoke. On 20 May 2015 the Secretary of State served a deportation order. That was appealed by the claimant and has been dismissed following a full hearing on 17 November 2015. Various other applications made by the claimant have been dismissed.
Removal directions were issued in February but were cancelled due to the need to obtain authorisation from the Rwandan authorities. In the meantime judicial review by the claimant to challenge his removal was dismissed and certified as totally without merit. It is common ground that he has exhausted all available remedies to challenge his removal at the present time. The current position is that the claimant has now been in custody continuously for a total of 3 years and 7 months, and for the past 17 months of that it has been immigration detention.
One other matter of note from the history is that on 7 March 2016, when deportation was anticipated, the claimant was recorded as having said that he does not wish to leave and will do everything it takes to prevent his removal from this country.
A bail application was made and refused on 16 February 2016. On 18 February 2016 a rule 34 medical examination was carried out by a Dr Ali at the Colnbrook Immigration Removal Centre. A complaint of torture was made which triggered the application of rule 35 of the Detention Centre Rules 2001, the relevant parts of which state:
i. "(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
ii. (4) The manager shall send a copy of any report under paragraphs (1), ( 2) or (3) to the Secretary of State without delay."
Dr Ali completed the rule 35 proforma report, ticking the box "I have concerns this detainee may have been the victim of torture". He recorded a complaint by the claimant that he had been attacked in Rwanda when he was 14. The claimant said he had returned from school to find seven armed men in the house where he was living. He was interrogated in an attack which lasted 40 minutes, in the course of which he was beaten, kicked and stabbed with what he described as a knife on the end of a gun. On a body map, Dr Ali recorded what he noted as multiple cuts shown to the face, the left shoulder blade, the torso and to both upper legs. There appear to be nine in total. It is unhelpful that he recorded those as cuts rather than scars in deciding whether that is corroborative evidence; but, in a written comment, Dr Ali said this: "His account is plausible and his scars are highly consistent with his description of events."
The claimant's case is that this report provides independent evidence corroborating his claim that he is a victim of torture. The Secretary of State argues that this is no more than a recitation of the claimant's own account and there is no reasoning to support Dr Ali's purported conclusion.
The law
This is an application for interim relief. I have to consider the balance of convenience. This means considering, first, whether there is a strong prima facie case made out. If so, I then have to go on to identify whether greater injustice results from granting relief rather than refusing relief. I have to consider the case in the round, including facts such as the strength of the claimant's challenge and the availability of an alternative remedy such as a monetary award. I also have to consider whether it was right to maintain the status quo and also the wider public interest.
Importantly, this is a claim which involves the liberty of the subject. The claimant is alleging that he is being and continues to be unlawfully detained contrary to the Secretary of State's own policy. The defendant, on the other hand, relies on the obvious public interest in enforcing the removal of foreign national offenders who have exhausted all their rights of appeal.
I decide this case on the evidence as it stands today. I do not purport to determine the validity of past decisions, which is not necessary for the purposes of this interim application and will no doubt be the subject of further proceedings.
The claimant is currently detained pursuant to schedule 3(2) of the Immigration Act 1971. The application of that power of detention was considered by the Court of Appeal in conjoined appeals in BA (Eritrea) and ST (Sri Lanka) v Secretary of State for the Home Department [2016] EWCA Civ 458. Giving the judgment of the court, Elias LJ identified the two limitations which applied to the power to detain. The first is what are known as the Hardial Singh principles. They are conveniently summarised in the judgment as follows:
i. "i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii. ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
iii. iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv. iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."
The second limitation arises from the published policies of the Home Office. The policies relevant to a case such as this are to be found in chapter 55 of the Enforcement Instructions and Guidance to which I have been referred. Paragraph 55.1.1 sets out the general policy. It states:
i. "The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used."
Paragraph 55.1.2 confirms that this presumption still applies, albeit with some modification, to foreign national offenders. Paragraph 55.3.A also makes specific provision in respect of foreign national offenders. It distinguishes between more serious and less serious offences and identifies in a schedule those which are considered more serious, including drugs offences as in the present case. The guidance then continues:
i. "A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result, the high risk of public harm carries particularly substantial weight when assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate."
Paragraph 55.10 is particularly relevant to the present case. It provides:
i. "Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security,...
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