R (Malungu) v Seretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Burnett |
| Judgment Date | 31 March 2010 |
| Neutral Citation | [2010] EWHC 684 (Admin) |
| Date | 31 March 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9651/2008 |
[2010] EWHC 684 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon Mr. Justice Burnett
Case No: CO/9651/2008
Miss S. Knights (instructed by Wilson & Co) for the claimant
Mr. S. Kovats (instructed by Treasury Solicitor) for the defendant
Hearing dates: 1 st February 2010
th and 17th February; 8th and 19th March 2010
Mr. Justice BurnettMr. Justice Burnett:
Introduction
The claimant contends that her detention pursuant to Paragraph 16(2) of Schedule 2 of the Immigration Act 1971 between 10 October and 13 November 2008 was unlawful on the basis that, from information provided to the Secretary of State on 9 October, it should have been apparent that she had provided independent evidence that she had been tortured and was mentally ill. In those circumstances it is contended that the Secretary of State failed to apply her published policy found in Chapter 55 of the Enforcement Instructions and Guidance [“the Instructions and Guidance”] concerning detention and temporary release. It is submitted that the consequence of any failure to apply the policy which, if applied, would have resulted in release renders the detention unlawful. The claimant submits additionally, that because she commenced judicial review proceedings on 10 October she should automatically have been released in accordance with the policy of the Secretary of State.
The claim came on for hearing on 1 February 2010 after a chequered procedural history. Further submissions were made in writing on behalf of the claimant on 8 February and 8 March 2010 to which the Secretary of State responded by short submissions received on 17 February and 19 March respectively. The supplementary submissions on behalf of the claimant referred to three decisions (two in the High Court and one in the Court of Appeal) which concerned the principles in play in claims such as this, or their application to the facts of those cases. I am satisfied that the claimant has not established that the Secretary of State detained her in contravention of the material policies and in consequence this application must be dismissed. In those circumstances it is unnecessary to explore the legal principles that would be engaged if my conclusion had been different.
The Claimant's Immigration and Litigation History
The claimant is Angolan. She arrived in the United Kingdom in May 2007 on a visitor's visa which has been issued on 2 January. On 1 June 2007 she applied for asylum which was refused on 30 June 2007. On the same day a decision was made to remove the claimant to Angola as an illegal entrant. She exercised her right of appeal to the Asylum and Immigration Tribunal [“AIT”]. Although the claimant had the benefit of legal representation before the appeal hearing she appeared in person before the Immigration Judge on 27 September 2007. Her appeal was rejected in a determination dated 2 October 2007. She claimed asylum on the basis that she would be persecuted as a result of her membership of the youth wing of the Front for the Liberation of the Cabinda Enclave. She claimed to have been arrested in December 2006, to have been beaten and sexually assaulted. The Immigration Judge did not believe the claimant and concluded:
“31. Taking into account all the evidence before me and applying the lower standard of proof to it, I am satisfied that the appellant has lied as to the reason why she left Angola and what she fears if she is returned there.
32. The Appellant has not been able to credibly explain why if she was a member of the Malimbo tribe from Kabinda that she was not able to speak the language that that tribe uses, namely Fiote. Her explanation that she spoke Portuguese because she was educated in this language is not credible bearing in mind her claim to have been from Kabinda. The fact that she does not speak the native languages of Kabinda is a clear indication that she has fabricated her evidence as to coming from that area.
33. The evidence before me clearly indicates that she was born and raised in Luanda. Her explanation as to why she had indicated this when she applied for a visa and on her passport is simply not credible.
34. The Appellant has accepted that she lied in relation to the date when she entered the United Kingdom. She has given no rational explanation for why she lied and her credibility is damaged by the admission she has made.
35. The Appellant claims to have been an active member of FLEC and had distributed political propaganda and had been expecting promotion to a more senior position within the party. That claim is incredible taking into account that she lacked fundamental knowledge regarding Kabinda and the position of FLEC. She was not able to name the governor of Kabiinda. That is a clear indication that she has fabricated her evidence to have been a member of FLEC. She was not able to give any information about the peace agreement which FLEC had entered into which is yet another clear indication that she has fabricated her evidence as to being a member of FLEC.
36. The Appellant accepts that in relation to both the visit visa application she made in South Africa and Angola that she lied on the application. She lied as to where her permanent residence was and she lied as to her reasons for wishing to go to the United Kingdom. She claims that she did so at the instigation of two separate agents who were advising her in relation to these separate applications. That claim is incredible taking into account she gave the same reason in relation to both applications for coming to the United Kingdom.
37. I believe none of the Appellant's evidence; I find that she is an Angolan national who can be returned to Angola where nobody would have any adverse interest in her. She has no credibility whatsoever. I have taken into account section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. She has given evidence to both the Home Office and to myself which was designed or likely to conceal information or mislead. She has not answered questions honestly that had been put to her both in relation to her interview with the Home Office and when giving her testimony before me.”
The claimant sought a reconsideration of her appeal. The Senior Immigration Judge refused the application, as did Lloyd Jones J.
On 11 April 2008 the Secretary of State detained the claimant pending removal. She remained in detention until released on bail 13 November 2008. On 7 May 2008 solicitors acting for the claimant made representations which they suggested amounted to a fresh claim for asylum. Nothing new was advanced in support of the claim, in particular it was not suggested that the claimant had been tortured or was mentally ill. The Secretary of State rejected those submissions on 10 July 2008. A fortnight later the claimant lodged a claim for judicial review of that decision. Permission to apply was refused on paper by Goldring J on 7 August 2008. He considered the claim to be totally without merit and described it as ‘hopeless’. The application was renewed orally but refused on 22 September 2008. In the meantime the claimant had made two unsuccessful applications for bail. On 11 August Immigration Judge Khan refused bail in these terms:
“The applicant has failed to report as required on numerous dates between November 2007 and May 2008 without a satisfactory reason other than claiming she had no transport and was unwell. Although she has made an application for judicial review, I am satisfied that there is a materially greater risk than normal risk of her absconding because of her previous failure to report. Furthermore, no sureties have been offered and despite the applicant having NASS accommodation, there would appear to be little incentive for her to comply with bail conditions. The risk of absconding is too high for bail to be granted.”
Nothing had changed when the next application was heard on 1 September 2009, save that a surety had been found who was not thought satisfactory by the Judge. Additionally, the Immigration Judge considered the recent refusal of permission to apply for judicial review a significant factor is evaluating the risk of absconding. On 28 September 2008 the Secretary of State set removal directions for 13 October.
On 9 October 2008 the claimant's current solicitors, who had been instructed on 25 September, submitted fresh representations to the Secretary of State. Enclosed was a report prepared by Lucy Kralj of the Helen Bamber Foundation dated 7 October concerning the claimant's mental health and her scarring. There was also a letter from Jose Matuno of the Cabinda Community and a note from Fred Bridgland, a journalist with expertise in Angolan affairs (including Cabinda) indicating that he would be prepared to provide a report. Those representations were rejected as not amounting to a fresh claim on 4 November. That rejection was followed by further representations contained in a letter dated 7 November which enclosed a statement from the claimant herself and Mr Bridgland's report. By letter dated 13 February 2009 those representations were not accepted as amounting to a fresh asylum claim. Further material was sent to the Secretary of State on 6 March 2009 comprising a report from the Medical Foundation for the Care of Victims of Torture, a report from Dr Arnold, a wound and scar specialist and further material from Mr Matuno. As a result of considering that new material the Secretary of...
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