R (on the application of Cham) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 17 June 2016 |
| Neutral Citation | [2016] EWHC 1345 (Admin) |
| Date | 17 June 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5254/2014 |
[2016] EWHC 1345 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Blake
Case No: CO/5254/2014
Stephanie Harrison QC and Michelle Knorr (instructed by Wilson and Solicitors LLP) for the Claimant
Rory Dunlop and Amelia Walker (instructed by Government Legal Department) for the Defendant
Hearing dates: 18 – 19 May 2016
Introduction
This is the rolled up hearing of a renewed application for permission and, if permission is granted, determination of a claim that was lodged on 13 November 2014 and has been pending in the Administrative Court ever since. At the conclusion of the proceedings I granted permission on each issue.
The claimant is a national of the Gambia born in 1980. He came to the UK on a visitor's permit in 2007 and overstayed his limited leave. In 2012 he met a Polish woman online and after a few months they decided to marry which they did in October 2012 by a proxy ceremony in the Gambia. It is said that they cohabited for a period but at some point in the summer of 2013 the matrimonial relationship broke down and the couple separated. The claimant says that, in part at least, the breakdown was caused by his disclosure that he was bi-sexual and had sexual feelings for members of his own sex.
The claimant had applied for an EEA residence permit in October 2012 on the basis of his marriage. He was represented privately by a firm of solicitors Stuart Karatas and Co (Karatas) for this purpose. On 19 March 2013 he was called for an interview by the Home Office together with his wife and but neither party attended. On 18 July 2013 the application was treated by the Secretary of State as having been withdrawn by reason of non-attendance. On 19 July 2013 Karatas complained that neither they nor the claimant had any notice of the interview; by then the couple had separated although not divorced.
In June 2014 the claimant decided to claim asylum. He indicates in his subsequent witness statement that he had some conversation with Karatas about doing so. He attended in person at the Asylum Screening Unit (ASU) on 17 June and was told to return on 25 June 2014.
On 25 June 2014 he attended the ASU and completed the asylum pro-forma in English, his primary language. He indicated that he had an address available to him during the asylum process in Trowbridge, Wiltshire and gave a mobile phone number for contact. He gave his full particulars and immigration history. He held a valid passport until October 2017. He explained that he decided not to continue with his EEA application in 2013 after he had discussed matters with his solicitor.
He set out the basis of his claim for asylum as follows:
"I came to the UK because I had problems in Gambia, because of my sexuality. I am bi-sexual. No (problems before coming to the UK) apart from being harassed and tortured by people living in my village..who know about my sexuality"
Asked how he was tortured he said:
"By being hit in the mouth by two guys. One hit me in the mouth and left with a scar. The other guy had a blade and cut me on my hand".
This happened in March 2007. He showed his scars to the officer. He revealed he had a same sex partner in Gambia and decided to come to the UK after the death of his mother for his own safety. A friend Nathan was supporting him (and sometimes his wife) in the UK.
When asked to explain why he could not return to Gambia, he indicated because of harassment and torture, referring to the scars on his hand and lip. He said that his mother died 17 May 2007 after being in hospital for 43 days having been hit on the head with a brick when she came became involved in an incident when some local boys were making disparaging comments about the claimant to his sister and cousin in the village. He produced a copy of his mother's death certificate recording the death of Amie Cham aged 44 from a head injury on 17 May 2007. The death was registered on the 2 June 2014, the same date as a certified extract was made.
Asked about any further evidence or documents relevant to his claim, the claimant merely identified the information already given namely the scars on his hand and lip and his mother's death certificate.
On the basis of this information the claimant was considered suitable for the Detained Fast Track (DFT) process for determining asylum claims. He was served with a notice setting out the reasons for his detention as being: he had previously failed to leave the UK when required to do so and it was considered that the claim could be decided quickly using the fast track procedure. The General Case Information Database notes further record that the Fast Track Procedures Guide was served on the claimant and its contents explained. This guide mentions, amongst other things, an entitlement to free legal advice and representation. Release of medical information and induction forms werecompleted and it were noted 'subject has requested private solicitors to represent him in his asylum matter.'
The claimant was then transferred to Harmondsworth Detention Centre. He completed a medical pro forma conducted by a nurse on his arrival there. The following day Karatas wrote to the Home Office contesting the allocation to the DFT because he was not yet divorced from his Polish wife. The Home Office responded to this representation on 30 June maintaining the decision to process the claim in the DFT.
On 2 July 2014, the claimant completed the statement of evidence form in the full asylum interview. It was noted that Karatas were representing him but had not attended. There is no evidence that they were contacted but there is a file note that the claimant indicated he was happy to be interviewed in the absence of a legal representative. The pro-forma document starts with the information:
'This is your opportunity to explain the reasons why you are claiming asylum and an opportunity for us to obtain all the information necessary to make a decision on your application.'
The asylum interview gives a more detailed account of the two incidents mentioned in the screening interview: the March 2007 assault and the April 2007 injury to his mother. The claimant was emotional when describing the death of his mother. Nathan was described as someone he had a brief but continuing relationship with in the UK, and he met him through a Bristol based gay lesbian and bisexual group that organises social events (GEAR). He was given until 6.00pm on Friday 4 July 2014 to submit further representations. The claimant forwarded to his solicitors an email received from GEAR on 23 June advertising a forthcoming social event on 20 July. Karatas forwarded this email to the Home Office on 4 July as evidence that 'he was a long-time member of the association'.
On 8 July 2014, the asylum claim was refused on credibility grounds. It was not accepted that the claimant was bisexual as claimed or had the experience in Gambia that he claimed. It was recognised that gay men are a particular social group at risk of persecution in the Gambia. The absence of supporting evidence was noted, as was the delay in making a protection claim since first arrival in the UK. The decision to detain in the DFT was maintained while the claimant exercised the right of appeal. This decision was maintained on the grounds that he was a single male, fit for detention and did not meet any of the DFT exclusion criteria.
On 13 July the claimant instructed a new firm of solicitors (Cardinals) to represent him at his appeal. This solicitor was paid privately with assistance from a friend. The claimant met his representative for the first time on 15 July. At his solicitor's request to the judge his appeal was adjourned on 16 July, principally to afford him an opportunity to produce evidence from Nathan. The claimant was handed his mobile phone to make a call to Nathan during the course of the hearing. Nathan answered the phone but was at work and unwilling to discuss intimate matters. The appeal was adjourned to 30 July.
No witness statement or other evidence was subsequently produced. The claimant was unable to pay for Cardinals and a third firm (Gracelands) took over his representation. He had an interview with his new advocate obn the day of the hearing. The First-tier Tribunal (FfT) judge agreed with the Home Office decision when dismissing the appeal on 1 August. Permission to appeal was refused successively by the FtT Immigration and Asylum Chamber (IAC) and the Upper Tribunal on 6 and 13 August 2014. Detention with a view to removal was maintained. Removal directions were given on 27 August for 3 September. The claimant made an application for a stay on removal that was rejected by the UT on that day. Removal directions were re-issued on 11 September for the 17 September 2014.
On 9 September the claimant met a representative of his present solicitors Wilson and Co (Wilsons) at an advice clinic at the removal centre. It is through their representations that the issues giving rise to this judicial review first arose.
They made representations on 12 September 2014 submitting a recent statement from the President of Gambia about repressive measures he would take against failed sexual orientation asylum seekers and a statement from Sanna, a friend of the claimant, who has known him for 14 years in Gambia and London supporting the proposition that he had a bi-sexual orientation. These representations were refused on 17 September. On the same day the claimant refused to embark on a plane to Gambia stating that his life would be in danger there. Removal was deferred and he was returned to the...
To continue reading
Request your trial
-
R Olamitoye v Secretary of State for the Home Department
...are serious inconsistencies and discrepancies that go to credibility. I also accept that on the authority of R (Cham) v Secretary of State for the Home Department [2016] EWHC 1345 (Admin), particularly para.35, there is support for the approach taken in this case as being permissible in an ......
-
R Jeremaya Ohaegbunam v Secretary of State for the Home Department
...claim, that submission was effectively rejected in the Cham, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1345 (Admin) case, the defendant did need to consider the fact that the claimant was in custody and therefore would have difficulty gathering corro......