R (on the application of Mohammed) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 03 March 2016 |
| Neutral Citation | [2016] EWHC 447 (Admin) |
| Docket Number | Case No: CO/665/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 March 2016 |
[2016] EWHC 447 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: CO/665/2016
Mr Buttler (instructed by Leigh Day) for the Claimant
Mr Ostrowski (instructed by the Government Legal Department) for the Defendant
Hearing dates: 24 th February 2016
The Claimant issued an application for Judicial Review and filed Particulars of Claim for false imprisonment on the 8 th February 2016. In addition, interim relief was applied for with a request that it be considered at a hearing, to be listed in the week commencing the 22 nd February 2016. Wyn Williams J gave directions on the 11 th February 2016 for the matter to be listed this week to consider whether the Claimant should be released pending further order.
The Claimant is a national of Somalia who is the subject of a Deportation Order, on the grounds that his deportation would be conducive to the public good. It is not difficult to see how those grounds could be made out. He has a disturbing history of offending characterised by violence or the threat of it. Most recently he was convicted, on the 5 th December 2013, of an offence of robbery and sentenced to 4 years imprisonment. I do not propose to burden this judgment with the Claimant's full antecedent criminal history but I note that on the 3 rd September 1999 he was convicted of an offence of wounding with intent, contrary to s.18 Offences Against the Person Act 1861 and sentenced to 4 years imprisonment. 10 months after release from that sentence he was sentenced to a further 4 years imprisonment for an offence of robbery. With ironic understatement Mr Buttler, counsel on behalf of the Claimant recognises in his Grounds for Judicial Review that Claimant 'might not be considered an asset to society'.
He acknowledges, on his client's behalf that it is 'understandable' why the Secretary of State might, for what he identifies as 'political reasons', be reluctant to release the Claimant. In a letter to the Claimant from the Home Office, dated 1 st October 2015, the following analysis is set out:
"Your criminal behaviour undermines the good order of society and renders you a threat to it. The United Kingdom is not required to keep here someone whose conduct strikes so deeply at it social values that it strains the tolerance of even a broad minded society.
If you are released from detention, our actions can lead to an negative view of the Home Office by the general public who may see the Department in failing in its duty to protect them from criminals and therefore there is a high risk of harm to the public"
These are, says Mr Buttler, political factors which he submits should 'hold no sway in these proceedings'. The Court must, in the performance of its own duties, ensure that powers of detention are exercised only in accordance with the law and, where demonstrably unlawful, the Court should not flinch in holding the executive strictly to account. In his admirably succinct and focused Skeleton Argument prepared for this hearing Mr Buttler submits this is a ' stark case' for reasons which he summarises thus:
"There is independent evidence that the Claimant has been tortured, which means that the threshold for justifying detention is far higher than in other cases: there must be very exceptional circumstances. The Defendant has erroneously failed to apply this very high threshold.
The Claimant has an outstanding asylum claim and, allowing for the Claimant's appeal rights, there is no realistic prospect of removal in 2016.
It is very doubtful that the Claimant will ever be removed: he is from Somalia where there is a risk of Art 3 harm unless an individual has the support of family or a majority clan; the Claimant left aged 12, is from a minority clan and has no surviving family in Somalia.
The Claimant has already been detained under administrative powers for a very long time, during which the Defendant has been guilty of extraordinary inaction.
The statutory power to detain immigrants for the purposes of deportation is circumscribed by the Defendant's policies. This, as a principle, is not controversial. A material breach of the policy on torture vitiates any authority to detain an immigrant. Again as Mr Ostrowski, who appears on behalf of the Defendant, accepts, this is well established by case law, see in particular: Lumba v SSHD [2012] AC 245 and Kambadzi v SSHD [2011] 4 All ER 975.
Paragraph 55.10 of the Defendant's Enforcement Instructions and Guidance imposes strict limits on the power to detain particular categories of individuals:
"The following are normally considered suitable for detention in only very exceptional circumstances…
Those where there is independent evidence that they have been tortured".
The reasoning underlying this policy was identified succinctly by Burnett J (as he then was) in R ( EO & Others v SSHD [2013] EWHC 1236 (Admin), para 59):
"There is no doubt about the underlying rationale of the policy. Those who have suffered torture in the past are disproportionately adversely affected by detention. That is why the Secretary of State will normally detain those in respect of whom there is independent evidence of torture only in very exceptional circumstances. However, in my judgment it is a mistake to conflate what is desirable with what is required by the policy operated by the Secretary of State in this area."
Mr Ostrowski told me and I accept without reservation, that despite endeavours on his part, he had received only the most general instructions for this hearing. He did not file a Skeleton Argument on behalf of the Defendant but sought individually to traverse each of the Claimant's arguments in oral submissions. Initially, he contended that the Claimant had not established evidence of torture. The meaning of 'independent evidence of torture' was considered by the Court of Appeal in R (AM) v SSHD [2012] EWCA Civ 521, where the Court contrasted 'independent evidence of torture with actual proof that torture had occurred'. This distinction resonates in the Secretary of State's own policy documents. In EO & Ors Burnett J observed at para 68:
"There is a clear difference between something that amounts to independent evidence of a fact and proof of that fact. In making any finding of fact, the fact-finder will weigh all of the evidence according different weight to different pieces. The credibility of a witness will be critical in determining the answer to any factual question; and when a witness is making a claim his credibility will be crucial. But that does not mean that a piece of evidence which supports his central claim is any less 'independent evidence' even if, in the end, the claim is rejected. The underlying credibility of a detainee does not, in my judgment, go to the question whether something amounts to independent evidence of torture. Such evidence is necessarily something beyond the say so of the person concerned"
On 6 October 2015, Dr Margit Szel (a doctor at The Verne Immigration Removal Centre, where the Claimant is detained) made a r 35 report to the Defendant. I take the summary below from the Claimant's Grounds:
"The Claimant had related the following account to the doctor: in 1992, members of the Abgal Tribe of the Hawiye Clan came to his family's house. They killed his uncle with a gunshot to the back of the head with a Kalashnikov and stripped and attempted to rape his 14 year old cousin. "This was witnessed by Mr Mohammed who was then lifted to a chair and held by the back of neck and could not move – his attacker stated 'remember us by this' then took the knife from the bayonet and attempted to take Mr Mohammed's tongue out – but he resisted this attack. As a result of this Mr Mohammed says he sustained cuts to both sides of his mouth. At the time he bled a lot. He reports his cousins then stitched the wounds with a veterinary suture to the right wound. The wound on the left was glued with herbal remedies. He was also branded with a cattle prod on the right lower back which he states represents the Abgal Tribe of the Hawiye Clan".
Crucially, the doctor examined the Claimant and described scars on his cheeks and right lower back. He expressed the following opinions:
i) "I have concerns that this detainee may have been the victim of torture".
ii) "The scars on both sides of the face appear to be consistent with the story heard from Mr Mohammed".
iii) "The branding also appears consistent with a scar from a burn".
iv) "In summary the history and examination is likely to suggest Mr Mohammed was a victim of torture".
This, says Mr Buttler, is independent evidence of torture. I agree. On the 8 th October 2015 the report was considered by the Defendant's case worker who, in so far as he can truly be said to have engaged with the issue, rejected the conclusions of the report. On 22 nd September 2015 the Claimant's solicitors submitted a new report, prepared by a Dr Jonathan Orrell. I identify the following paragraphs as relevant:
"4.2. Scars A and B are both on the face. This history given by Mr. Mohammed is plausible as the scars have the straight edges typical of a knife wound. The initial cut during the incident according to Mr. Mohammed was on the left cheek (Scar B): he said that this one was 'too high' and missed the mouth being above the upper teeth and running under the cheek bone. The second cut according to Mr Mohammed was scar B, which Mr. Mohammed said was a determined effort to prise open his teeth using a bayonet. This scar is the full thickness of the cheek on the right and would have opened the mouth cavity from the side. There are other possible...
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