R (on the application of Ogechukwu Anugha) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms Leigh-Ann Mulcahy |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] EWHC 1391 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 June 2017 |
| Docket Number | Case No: CO/3708/2016 |
[2017] EWHC 1391 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Leigh-Ann Mulcahy QC
(sitting as a Deputy High Court Judge)
Case No: CO/3708/2016
The Claimant appeared in person and was not represented
Toby Fisher (instructed by the Government Legal Department) for the Defendant
Hearing date: 11 May 2017
Approved Judgment
Ms Leigh-Ann Mulcahy QC:
Introduction, Issues and Conclusion
The issue for determination in this case is whether the Claimant, a Nigerian national, was unlawfully detained in an Immigration Removal Centre (" IRC") pending removal from the United Kingdom from 14 April 2016 to 22 July 2016 (a total period of 100 days), or for any part of that period.
This broad issue raises the following specific questions for determination:
a) Issue (1): Did the Defendant have a power to detain and was it exercised lawfully?
b) Issue (2): Did the Defendant comply with her published policy in taking the decision to detain the Claimant and in maintaining her detention?
c) Issue (3): Did the Defendant's ongoing decision to detain the Claimant throughout her period of detention comply with the Hardial Singh principles, summarised by Dyson LJ (as he then was) in R (I) v Home Secretary [2002] EWCA Civ 888; [2003] INLR 196?
Although the Claimant, in her skeleton argument for the hearing, purported also to challenge an earlier period of detention in an IRC between 29 July 2015 and 24 September 2015, this was not the subject of her claim which sets out at Section 3 of her Claim Form the decisions that she is seeking to review including " the decision to detain Applicant 14-4-16…" (emphasis in bold added). This is the ground for which she was granted permission to proceed with a claim for judicial review. Accordingly, I will focus in this judgment on the 2016 period of detention that is the subject of the claim and address the 2015 period of attention only by way of factual background.
My conclusions, based on the evidence in this case, are as follows:
a) In relation to Issue (1), the Defendant had statutory power to detain the Claimant under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 as a person in relation to whom there were reasonable grounds for suspecting that they were a person in respect of whom removal directions might be given. At the time of her detention, the Claimant was an Overstayer in relation to whom there were reasonable grounds to suspect that directions might be given for her removal from the UK. Accordingly, the Defendant's power was exercised lawfully.
b) In relation to Issue (2), save in one respect, the Defendant did comply with her published policy when taking decisions relating to the Claimant's initial and ongoing detention. The respect in which the Defendant failed to comply with her published policy was in failing to refer the Claimant for a Rule 35 assessment as quickly as possible following the Claimant raising an allegation of torture in her initial assessment on 14 April 2016. The Rule 35 assessment only took place 16 days later on 30 April 2016. However, in circumstances where the Rule 35 report dated 3 May 2016 did not amount to independent evidence of torture, I have concluded that, whilst relevant to the decision to detain and an unlawful deviation from the Defendant's policy, the same period of detention would inevitably have occurred even if there had been full compliance with the guidance. Accordingly, the Claimant is entitled only to nominal damages (and not to compensatory damages) in this regard.
c) In relation to Issue (3), the Defendant's ongoing decision to detain the Claimant throughout the period of detention did comply with the Hardial Singh principles because (i) the Claimant was detained with the intention of removal; (ii) the period of detention was reasonable in all the circumstances as detailed below; (iii) it was not apparent before the transfer to the Administrative Court and it becoming clear that there was no reliable period within which the judicial review claim would be determined that removal could not be effected within a reasonable period, at which point the Claimant was released; and (iv) the Defendant did act with reasonable diligence and expedition to seek to effect removal.
The Factual Background
The relevant factual immigration and detention history is as follows.
The Claimant, whose date of birth is 30 December 1978, entered the United Kingdom on 17 January 2007 with entry clearance as a Tier 4 student valid until 31 May 2008. This was later amended to give Leave to Remain until 30 November 2008.
On 1 December 2008, the Claimant submitted a Tier 1 Post Study application. On 11 December 2008, this application was granted with Leave to Remain until 11 December 2010.
On 7 December 2010, the Claimant submitted a Tier 4 Student application. The application was granted on 20 January 2011 with Leave to Remain extended until 29 February 2012.
On 27 February 2012, the Claimant submitted a further Leave to Remain application as a Tier 4 Student). The application was granted on 14 November 2014 with Leave to Remain extended until 28 February 2015.
On 8 March 2013, the Claimant's Leave to Remain was curtailed with Leave to Remain to expire on 7 May 2013 on the basis that the Claimant had ceased to study. There was no right of appeal.
On 4 May 2013, the Claimant submitted a further Tier 4 Student application. On 25 February 2014, the application was granted with Leave to Remain valid until 28 February 2016.
On 11 December 2014, the Claimant's Leave to Remain was curtailed to expire on 14 February 2015 on the basis that the Claimant's sponsor ceased to have a licence. There was no right of appeal.
On 14 February 2015, the Claimant submitted a further Leave to Remain application, outside the Immigration Rules on compassionate grounds. This was refused with an out of country right of appeal on 7 May 2015 but the decision was not served.
On 29 July 2015 the Claimant was encountered, detained and served with a RED.0001, RED.0003 and IS91R as an Overstayer (although, as the Defendant candidly conceded at the hearing, it was arguable that she was not technically an Overstayer because she was entitled to remain until she was given notice and she was not served with notice of the leave to remain decision until after she was detained).
On 14 August 2015, the Claimant lodged a judicial review claim in the Upper Tribunal Immigration and Asylum Chamber against the service of the RED.0001 and raised Article 5 and 8 European Convention on Human Rights (" ECHR") grounds.
On 27 August 2015, the Decision was served refusing the application of 14 February 2015 for Leave to Remain, certified under section 94(1) of the Nationality, Immigration and Asylum Act 2002. The RED.0001 served on 29 July 2015 was withdrawn.
On 2 September 2015, the judicial review claim was refused as totally without merit.
On 9 September 2015, the Claimant lodged a further judicial review claim against the decision of 27 August 2015 and on Article 5, 6 & 8 ECHR and certification grounds.
On 16 September 2015, the Claimant claimed asylum. Her claim alleged that she had been a victim of torture and rape while in Lagos Airport in 2009. She underwent a screening interview for the asylum claim on 23 September 2015.
She was released from detention on 24 September 2015 on temporary admission on the basis that her asylum claim needed to be determined. Whilst on temporary admission, the Claimant was compliant with reporting conditions.
On 29 September 2015, the Claimant's second judicial review claim was struck out by the Court for failure to comply with directions (although the nature of the non-compliance was not clear from the material before the Court).
On 22 December 2015, the Claimant underwent a substantive interview for her asylum claim.
On 26 January 2016, the Claimant's asylum claim was refused and certified as clearly unfounded.
On 22 February 2016, officers in the Home Office concluded that detention of the Claimant was necessary because the Claimant had made repeated attempts at unmeritorious application and because she was an Overstayer.
A note dated 21 March 2016 recorded that due to her history of noncompliance the Claimant was extremely unlikely to comply with conditions of temporary release knowing that removal was imminent. A GCID note prepared the same day noted:
"Detention is necessary as subject has made repeated attempts at applications that have been refused the latest to be served at her DOR. She was served a RED.0001 on 29-Jul-2015 as an overstayer, this also notified her of her Liability for removal from the UK & also advised of the voluntary return scheme via the RED.0001. Due to her history of noncompliance she is extremely unlikely to comply with conditions of temporary release knowing removal is imminent."
On 14 April 2016, the Claimant was re-detained on reporting at Sandford House and was served with the decision refusing her asylum claim on that date. It is the period of detention commencing on this date which is the subject of the present claim.
The Claimant's initial detention review stated that the Claimant posed a " low" risk of absconding as she had been compliant with reporting restrictions. The detention was justified on the basis that she was removable within a reasonable timeframe.
On 18 April 2016, the Claimant submitted further representations to support a fresh claim for asylum.
On 21 April 2016, a seven day detention review was carried out at which the Claimant's risk of absconding was...
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