R (on the application of IS) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 11 July 2016 |
| Neutral Citation | [2016] EWHC 1623 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5491/2015 |
| Date | 11 July 2016 |
[2016] EWHC 1623 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/5491/2015
The Queen on the application of
Bojana Asanovic (instructed by Duncan Lewis) for the Claimant
Amelia Walker (instructed by the Government Legal Department) for the Defendant
Hearing dates: 23 February, 6 April & 7 June 2016
In this claim for judicial review, the Claimant challenged the Defendant's decisions on deportation, asylum and detention. Due to developments which have taken place during the course of these proceedings, the asylum and deportation issues are to be determined by way of statutory appeal and so only the Claimant's detention now falls to be decided.
Factual summary
The Claimant is a national of Slovakia and was born there on 16 April 1985. Her son was born on 4 November 2006. In April 2014 she arrived in the United Kingdom ("UK"), and resided with her sister and her family whilst working in a supermarket. Her son remained in Slovakia with her mother.
On 15 July 2014 the Claimant was arrested for conspiracy to assist unlawful immigration to a member state, namely, agreeing to enter into a sham marriage with a Nigerian man, which would entitle him to claim a right of residence in the UK as the spouse of an EU citizen. The marriage was arranged for financial gain by two other individuals, one of whom (called RS) the Claimant knew from Slovakia. According to the pre-sentence report, which the sentencing judge accepted:
"[The Claimant] explains that prior to the day she was arrested with her co-defendants at the Registry Office in Leeds, she had not met Joseph … [the groom]. She describes that although a financial payment had been mentioned, no specific amount had been identified and she 'simply' believed that she was going to be looked after. It is not clear whether this was as a result of financial reward or whether [the Claimant] felt she would be looked after by her new husband. …. [The Claimant] is adamant she has not received a penny for her role in the offence…"
The Claimant entered an early guilty plea to the charge in September 2014 and on 2 February 2015 she was sentenced to 15 months imprisonment. Because she had been remanded in custody, she was eligible for release on 28 February 2015 (after serving seven and a half months of her sentence). On 28 February 2015, the Defendant decided to detain her under immigration powers. Thereafter she was held in immigration detention for just under a year until her temporary admission on 4 March 2016.
On 13 February 2015, the Defendant served the Claimant with a notice of liability to deportation pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006") on the grounds that, as a result of her criminality, her deportation was justified on grounds of public policy and/or public security.
On 26 February 2015, the Claimant replied to the notice stating that if she was returned to Slovakia her life would be at risk and that she had family in the UK. In response, on 4 March 2015, the Defendant invited her to apply for asylum and asked her to complete Statement of Evidence forms within 12 working days.
On 16 March 2015, the Defendant notified the Claimant that she had rejected her representations against deportation and decided to make a deportation order, though no steps would be taken to deport her whilst her asylum claim was pending. The Defendant referred in detail to the circumstances of the offence and the Judge's sentencing remarks. She said that the seriousness of the offence was reflected in the lengthy prison sentence; immigration crime was not victimless; that the Claimant had given no thought for the consequences of illegal immigration upon the community of the UK; she had acted for personal financial gain and her actions suggested she might well resort to criminal activity to support herself, posing a risk of harm to the public. The Defendant concluded that it was reasonable to expect the Claimant to return to Slovakia where she had spent all her formative years and where her son still resided with her mother. Although the Claimant had stated that she had family in the UK, her family ties were not such as to engage Article 8 ECHR. There was a significant public interest in deporting her, and no very compelling factors against deportation.
Although the Claimant was notified of her right of appeal against the decision to deport, she did not file a notice of appeal at that time.
On 17 March 2015 the Claimant was transferred from prison to Yarl's Wood Immigration Removal Centre.
Detention reviews were conducted during 2015 on the following dates: 27 March, 24 April, 22 May, 19 June, 17 July, 13 August, 10 September, 8 October, 5 November, 3 and 31 December.
Although on 5 March 2015 the Claimant confirmed she wished to continue with her claim for asylum, she did not complete the required forms, and on 23 April 2015 she was issued with a notice of deemed withdrawal of her claim for non-compliance. On 9 July 2015, the forms were re-sent to her and eventually completed and sent to the Defendant on 27 July 2015. The Claimant explained that she was at risk of harm from her ex-partner, a violent and aggressive drug-user, who was a member of a Mafia group and a pimp. When they were together he physically assaulted her, demanded money from her, and threatened to shoot her if she complained to the police. He was serving a prison sentence for rape but she feared he would seek her out once released, and discover that she had given birth to his child. The Claimant did not refer to their membership of the close-knit Roma community, a point later heavily relied upon. The Defendant treated this information as a fresh claim for asylum.
On 14 May 2015 a bail application to the First-tier Tribunal ("FTT") was withdrawn by the Claimant. The FTT refused a bail application on 18 June 2015. In July 2015 a further bail application was withdrawn as the sureties had failed to attend due to the incorrect information being supplied to them by the Claimant's probation officer. In August 2015, a further bail application to the FTT was withdrawn.
On 13 June 2015 an OASYS assessment was completed, based on the pre-sentence report, and it was received by the Defendant on 9 July 2015.
On 11 August 2015 Dr Ward, a medical practitioner at Yarl's Wood, made a report under Rule 35 of the Detention Centre Rules expressing concern that the Claimant may have been the victim of torture in Slovakia, namely, physical attacks and threatening behaviour by her ex-partner. The Defendant responded to this report on 12 August 2015, seeking further details. On 13 August 2015, the Defendant wrote stating that she did not accept that the report amounted to independent evidence of torture, and maintaining the detention.
On 18 September 2015 the Claimant's solicitors wrote to the Defendant enclosing a witness statement from the Claimant and background evidence concerning Slovakia, together with the Rule 35 report and a referral letter from the Helen Bamber Foundation, asking for the Claimant to be released. The Claimant gave details of mistreatment by her ex-partner and also threats by RS (the Slovak who organised the sham marriage), which she had not previously mentioned. The Claimant's witness statement stated, for the first time, that she was of Roma ethnicity, and suffered discrimination in Slovakia as a result, and that because the Roma community was close-knit, her ex-partner and his criminal associates and RS would easily find her in Slovakia. She said that her photograph and details of the marriage had been publicised on the internet and she feared she would be labelled a prostitute and ostracised for marrying a black man. She said that the shame would be so great that she would commit suicide. On 22 September 2015 the Claimant's solicitors sent a pre-action protocol letter alleging false imprisonment.
On 23 September 2015 the Defendant replied to the Claimant's solicitors refusing to release the Claimant and rejecting the Rule 35 report as independent evidence of torture.
On 6 October 2015, the Defendant sent the Claimant a decision letter refusing asylum, humanitarian protection and discretionary leave on human rights grounds. The asylum and human rights claims were certified as clearly unfounded under section 94(1) of the Nationality, Immigration and Asylum Act 2002. The Defendant concluded:
i) The Claimant had not established a well-founded fear of persecution so she did not qualify for asylum under paragraph 336 of HC395 (as amended). Her alleged fear of mistreatment on return was based upon threats of persecution from non-state agents and the authorities in Slovakia would be able and willing to provide her with effective protection. In addition, it was reasonable to expect her to relocate within Slovakia and there was no evidence that the people she feared would be able to trace her.
ii) The Claimant had not shown that there were substantial grounds for believing that she faced a real risk of suffering serious harm on return from the UK and so she was not entitled to humanitarian protection under paragraph 339F of the Immigration Rules ("IR"). She was also excluded from a grant of humanitarian protection under paragraph 339D IR because she had been convicted of a 'serious crime', defined as one for which a custodial sentence of at least 12 months has been imposed.
iii) The Claimant had not established that deportation from the UK would breach Articles 3 or 8 ECHR. It was not accepted that there was a real risk that she would commit suicide if removed to Slovakia but should such a risk...
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