R (on the application of MG) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms Mulcahy |
| Judgment Date | 23 January 2018 |
| Neutral Citation | [2018] EWHC 31 (Admin) |
| Docket Number | Case No: CO/5573/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 January 2018 |
[2018] EWHC 31 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Mulcahy QC
(Sitting as a Deputy High Court Judge)
Case No: CO/5573/2016
Ms Irena Sabic (instructed by Wilsons Solicitors) for the Claimant
Mr David Mitchell (instructed by Government Legal Department) for the Defendant
Hearing dates: 28 November 2017
Judgment Approved
Ms Mulcahy QC:
Introduction, Issues and Conclusion
This claim concerns a judicial review challenge by a Namibian national who entered the UK in 2006, overstayed her leave, thereafter committed several criminal offences and is subject to deportation.
The issues for determination in this case are:
i) Whether the Defendant's refusal to treat the Claimant's various sets of further submissions as fresh claims within the meaning of paragraph 353 of the Immigration Rules (“ paragraph 353”) was unlawful;
ii) Whether the Defendant unlawfully detained the Claimant under the Immigration Act 1971 from 11 February 2015 until 9 May 2017 when she was released (pursuant to the grant of bail on 4 May 2017 and the provision of accommodation under section 4 Immigration and Asylum Act 1999).
I have concluded that the Defendant's refusal to treat the Claimant's submissions in relation to her relationship with her daughter as a fresh claim in light of the evidence submitted was irrational and should be quashed and re-taken. However, I have concluded that the Defendant's refusal of the Claimant's fresh protection claim was not unlawful. Further, I find that the Defendant has discharged the burden of proving that the Claimant's detention after 11 February 2015 was lawful.
On 28 November 2017, I made an anonymity order, by consent, in order to protect the identity of the Claimant's child and in light of the fact that she had brought a fresh claim for protection.
The relevant factual history is as follows.
The Factual Background
The Claimant, a national of Namibia, arrived in the United Kingdom (“ UK”) on 26 February 2006 and was granted leave to enter as a visitor for 6 months.
She then departed from the UK on an unspecified date.
On 2 April 2006, the Claimant returned to the UK and was granted leave to enter until 2 October 2006. She then overstayed.
On 7 August 2010, the Claimant was convicted at Highbury Corner Magistrates Court of being drunk and disorderly and assaulting a constable leading to a community order and unpaid work requirement of 40 hours. She was ordered to pay £50 in compensation and £85 in costs.
On 5 January 2011, the Claimant was convicted at Highbury Corner Magistrates Court of destruction or damage to property. She was sentenced to one day's detention at court.
On 21 April 2011, the Claimant submitted an application for Leave to Remain which was rejected as invalid on 4 July 2011 because the relevant fee had not been paid.
On 2 August 2011, the Claimant was convicted at Highbury Corner Magistrates Court of theft/shoplifting. She received a conditional discharge of 6 months.
On 2 December 2011, the Claimant was convicted at Wood Green Crown Court of breach of a conditional discharge order and arson. She was sentenced to 15 months in custody. She did not appeal against the conviction or sentence.
On 12 January 2012, a liability for deportation letter was issued by the Defendant. The Claimant responded outlining family circumstances.
On 30 July 2012, the Claimant was served with a deportation order.
On 3 August 2012, the Claimant lodged an appeal against the deportation order.
On 15 January 2013, the Claimant's appeal in the First-tier Tribunal was allowed.
On 13 February 2013, the Claimant's deportation order was revoked and discretionary leave was granted to the Claimant until 3 January 2014. The Claimant again overstayed.
On 10 May 2014, the Claimant was arrested for breach of the peace whilst under the influence of alcohol.
On 11 May 2014, the Claimant was served with papers as an overstayer and entered immigration detention.
On 28 May 2014, the Claimant applied for the facilitated return scheme which was subsequently refused on 1 June 2014 as she had failed to sign the disclaimer.
On 14 August 2014, the Defendant served the Claimant with a further deportation letter with an out of country right of appeal.
On 10 September 2014, the Claimant appealed against the deportation decision and made an asylum claim.
On 13 October 2014, the Defendant sent a supplementary decision letter dismissing the asylum and human rights claims.
On 10 February 2015, a Rule 35 assessment was undertaken. The author of the report ticked the box which stated that the Claimant “ may have been the victim of torture” and after recounting the Claimant's account stated “ Has nightmares and flashbacks and has been diagnosed with PTSD [Post-Traumatic Stress Disorder]. Feels cannot escape this as marks on her body remind her of her past”.
On 11 February 2015, the Defendant's response to the Rule 35 report was sent. It was drafted by a Mr. Turpin who stated that, “ The issues in the report were fully considered and addressed in the ‘Supplementary Decision Letter’ dated 13 October 2014 after you claimed asylum.” He proceeded to record that on 10 September 2014 the Claimant “ was interviewed regarding your claim and representations were submitted on 10, 11, 17, 18, 23 and 29 September 2014.” He continued, “ The basis of your claim was outlined in the ‘Supplementary Decision Letter,’ notably at paragraph 31.” This was a reference to the specific consideration given to the Claimant's claim to be a victim of torture, and the Defendant's rejection of that claim on 13 October 2014. Mr Turpin further recorded that the decision of 13 October 2014 was subject to an appeal, and that the outcome of the appeal was pending. Mr Turpin then stated that:
“The medical practitioner also gave specific mention to you having nightmares and flashbacks and having been diagnosed with PTSD. Also, you feel you cannot escape this as marks on your body remind you of your past. However, the alleged incidents happened in the early 80's, over 20 years ago.”
On 11 February 2015, an “Ad Hoc Detention Review – Rule 35” was carried out in relation to the Claimant. This stated as follows:
“This review has been completed in light of a Detention Centre Rule 35 report dated 10 February 2015… The information contained in the report has been fully considered and the decision to detain has been reviewed. Account has been taken of [the Claimant's] claim to have been ill-treated in the early 80's which resulted in the injuries as indicated in the information provided in the Rule 35 report dated 10 February 2015. It is noted however that the claim is the same as that considered in [the Claimant's] previous asylum claim. It is the case that her asylum claim has been refused with the First Tier appeal outcome awaited… In light of this, and the fact that [the Claimant] has provided no new evidence to warrant fresh consideration of her asylum claim, it is considered that [the Claimant's] detention should be maintained.” (sic)
On 12 February 2015, the Claimant's appeal was dismissed by the First-tier Tribunal. The determination, as relevant to the issues herein, stated as follows:
“26. The Appellant fears persecution if she were to return to Namibia because of her family, the lack of protection she might receive, the fact that she feels bitter and might attack her family and the fact that she cannot internally relocate. In her skeleton argument Ms Pall argues that the Appellant would face a well founded fear of persecution on grounds that she fears destitution on return to Namibia and that she will not receive adequate treatment in light if (sic) her serious medical conditions.
27. I do accept that the Appellant may have suffered in the past at the hands of her family and neighbours. The reports that I have before me confirm that this has had a very damaging effect on her and may have lead (sic) to her alcohol abuse and subsequent behaviour.
28. I cannot find that the Appellant's fear of her family on return is well founded. As the Appellant has said in interview she is now grown up and they would not be able to hurt her anymore, she says that she will stand up for herself. She is in regular contact with her daughter and grandmother. She has also said that her family will not seek her out.
29. She may feel very bitter but she has taken steps to control her behaviour as is reflected in the psychiatric report. She has also given up alcohol. There is no reason now why as a mature adult she should fear that she would destroy members of her family.
30. There are two medical reports. Dr Naguib concludes that in September 2011 the Appellant did not show any evidence of formal mental illness and therefore was not in need of psychiatric treatment or further assessment in hospital. Dr Stamps' report also found that she did not display symptoms consistent with a diagnosis of post traumatic stress disorder but to have enduring personality change after a catastrophic experience and should be referred for counselling.
…
33. She is a grown-up woman who can live independently and make her own way in Namibia….
…
37. The appellant showed me a few cards and photos and messages that she has sent her daughter in the UK. However, it is that (sic) difficult to see how much contact they have had since she was born in 2009. The relationship was turbulent with her daughter's father and the appellant left permanently in 2010 when she was drinking heavily. I have not been given any further details of her relationship with her daughter.”
38. In the...
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