R (on the application of Israel Ibidokun) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Rhodri Price Lewis |
| Judgment Date | 08 December 2017 |
| Neutral Citation | [2017] EWHC 3178 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 December 2017 |
| Docket Number | Case No: CO/2301/2017 |
[2017] EWHC 3178 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(sitting as a Deputy Judge of the High Court)
Case No: CO/2301/2017
Allan Briddock (instructed by Duncan Lewis Solicitors) for the Claimant
Amelia Walker (instructed by the Government Legal Department) for the Defendant
Hearing date: 16 November 2017
Rhodri Price Lewis QC:
Introduction
In these proceedings the Claimant challenges the legality of his detention by the Defendant since the 6 th August 2016 on the grounds (a) that it has lasted for a period that is unreasonable in all the circumstances and (b) that the Defendant has failed to act with reasonable diligence and expedition to effect his removal from the UK. He seeks a declaration that his detention is unlawful for all or at least part of its duration. He seeks damages for unlawful detention and costs. He remains in detention. His application for interim relief in the form of an order directing his release from custody was refused by Mr Justice Warby on the 17 th August 2017.
Permission to bring this claim for judicial review was refused on the paper application by Mrs Justice Lang on the 24 th June 2017. On the Claimant's renewed application for permission for judicial review on the 17 th August Mr Justice Warby gave permission to proceed on Ground 1 of the claim only, limited to argument that (i) the Claimant has been detained for a period which is unreasonable in all the circumstances, and (ii) the Defendant has not acted with due diligence and expedition to effect removal. At the hearing of the claim I directed that this limitation on the permitted ground of claim precluded argument based on the Claimant's sexuality or religion or on his claim to be a victim of torture. Those matters were addressed in Ground 2 of the claim on which permission to proceed had been refused. Lord Justice Irwin has refused permission to appeal that refusal.
The Facts
The Claimant is a Nigerian national and he is now 33 years of age. He first entered the UK on the 25 th December 2006 on a student visa valid until 28 th February 2010. He stopped attending his course, overstayed and absconded. He has a child in the UK by a former partner. On the 6 th September 2010 the Claimant was arrested for overstaying. He was bailed with a requirement that he reported. He did so report until April 2014.
On the 7 th February 2014 he had pleaded guilty to obstruction of a police constable after an altercation about a rail ticket. He was given a conditional discharge for 12 months and fined. He was seen by the police again on the 15 th August 2014 when officers attended a domestic dispute in London. He was taken into custody as an immigration offender and on the following day he was released with a requirement that he report and did so until the 30 th April 2015. In January 2015 he was arrested for an offence of burglary but he was not charged. In May of that year he was charged with rape of a 12 year old girl and remanded in custody but the prosecution was in due course discontinued. He was issued with what is known as a "child abduction notice" in relation to the 12 year old girl. Such notices have no statutory basis and I shall return to considering its significance.
On the 27 th April 2016 the Claimant was again arrested on suspicion of burglary but again no further action was taken. On the 24 th June he failed to report to the Home Office. On the 6 th August he was arrested on suspicion of rape and kidnap. He attempted to hang himself at the police station. His detention under immigration powers was authorised although he remained in hospital following his attempt at hanging himself and he was not transferred to an Immigration Removal Centre until the 8 th August.
On the 10 th August the Claimant is recorded in detention as saying that his life would be in danger because of "territorial issues" back home but that he was not sure if he wished to make an asylum claim. On the 21 st August he expressed fear about returning to Nigeria because his father's family wanted to kill him over a property dispute and showed scars to his body that he claimed were from an attack by his father's family. By the 23 rd August the Defendant was recording this as a potential fresh asylum claim and at the beginning of September an asylum registration form was completed.
The first written review of his detention on the 12 th August 2016 set out his immigration and other history and reported that there were no known barriers to the Claimant's removal at that time, with his removability being assessed as "high". It was recorded that the Claimant had "an appalling record of reporting" and that "he is fully aware that we are taking the necessary action to remove him from the UK" and so "it is considered that he presents a high risk of absconding if released at this time". The review went on to record that at the police station the Claimant had stated that he did not have any mental health issues although he was taking medication for depression and that although he had suffered from panic attacks and had previously self-harmed, he felt fine. The Review reported that he did not fall into the category of persons suitable for detention only in very exceptional circumstances under current Home Office guidance.
The next review of his detention took place on the 2 nd September 2016. The written account of that review recorded that the Claimant would need an emergency travel document ("ETD") for his return to Nigeria as his passport had expired but that a copy of that expired passport was available to support any necessary application. It explained that a telephone interview with the Nigerian High Commission had been arranged but had to be cancelled because the Claimant had made an asylum claim. It recorded under the heading "current barriers to removal (excluding documentation)" this "asylum claim". The Claimant's removability was assessed as "medium" and the review explained that as he had now made an asylum claim that claim would need to be dealt with before any removal directions could be set. He was assessed as being of high risk of absconding and as a high risk of harm to the public on the basis of his history and because he had been fighting with another detainee.
The Claimant was interviewed about his asylum claim on the 2 nd November 2016 and then again on the 18 th November 2016 and finally on the 18 th January 2017. The Claimant applied for asylum and asked to be recognised as a refugee because of a claimed well-founded fear of persecution in Nigeria on the basis of a family dispute, because he had changed his religion from Islam to Christianity and because he was bisexual. The Defendant considered that claim on the 14 th March 2017 and it was decided that the Claimant did not qualify for asylum or humanitarian protection and he was refused leave to remain in the UK. The notice of those decisions was dated the 7 th June 2017 and served on the Claimant on the 9 th June 2017. He appealed against those decisions and his appeal was dismissed by the Judge of the First Tier Tribunal (Immigration and Asylum Chamber) in a decision dated the 13 th November 2017, the day before the hearing before me in the High Court, on asylum, human rights and humanitarian protection grounds. The Judge found that the Claimant had not discharged the burden of proving that he faces a substantial risk of serious harm from either non-state agents or the authorities in Nigeria for any of the reasons he has given, that he was not bisexual and that he had fabricated the claim that he had changed religion.
The assessment of his removability as "medium" and the assessment of his risk of absconding if released as "high" continued in all subsequent detention reviews. The assessments of risks of harm to the public in subsequent reviews referred to his arrest on charges of rape and kidnap on the 6 th August 2016, the child abduction notice, his conviction and conditional discharge in 2014 and his behaviour in detention and his failure to adhere to detention centre rules.
Detainees are provided with monthly progress reports. In each such report up until the 2 nd May 2017 the Claimant was told the reasons it had been decided that he would remain in detention were:
i) there was reason to believe he would fail to comply with any conditions attached to the grant of temporary admission or release;
ii) to effect his removal from the United Kingdom;
iii) because there was insufficient reliable information to decide on whether to grant him temporary admission or release;
iv) because the Defendant was satisfied that his asylum application might be decided quickly using the fast track procedures.
From the report of the 30 th May 2017 the last reason was not mentioned but in each such monthly progress report the Defendant also stated that the decision to detain the Claimant was reached on the basis of the following factors:
i) he had previously failed to comply with conditions of stay, temporary admission and release;
ii) he previously absconded or escaped;
iii) he had not provided satisfactory evidence of his identity, nationality, or lawful basis to remain in the UK;
iv) he did not have enough close ties to make it likely he would stay in one place; and
v) on initial consideration it appeared that the asylum application might be one which could be dealt with quickly.
That last factor was relied upon in each such report up to and including the most recent before the court dated the 17 th October 2017.
The Claimant made applications for bail on five occasions. He withdrew the first four applications before they...
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