R (on the Application of Am) (Appellant/Claimant) v Secretary of State for the Home Department (Respondent/Defendant)

JurisdictionEngland & Wales
JudgeLord Justice Rix,Lord Justice Moses,Mr Justice Briggs
Judgment Date26 April 2012
Neutral Citation[2012] EWCA Civ 521
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2010/0976
Date26 April 2012

[2012] EWCA Civ 521

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION

MR JUSTICE BURNETT

CO/9651/2008

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Rix

Lord Justice Moses

and

Mr Justice Briggs

Case No: C4/2010/0976

Between:
R (on the Application of Am)
Appellant/Claimant
and
Secretary of State for the Home Department
Respondent/Defendant

Mr Nick Armstrong (instructed by Wilson Solicitors LLP) for the Appellant/Claimant

Mr Jeremy Johnson QC (instructed by Treasury Solicitors) for the Respondent/Defendant

Hearing dates : Thursday 12 th January 2012

Lord Justice Rix
1

These proceedings concern AM's (the appellant's) claim that she was illegally detained, purportedly pursuant to paragraph 16(2) of the Immigration Act 1971 as an illegal immigrant pending removal, in the period between 10 October and 13 November 2008. On 13 November 2008 she was granted bail by the AIT and her detention ceased. On 10 October 2008 she had been in detention since 11 April 2008, but it was only on 10 October that her claim for judicial review was issued and served by new solicitors, Wilson Solicitors LLP, following their service on the previous day, 9 October, of fresh material and representations concerning her claim to asylum. That material included two reports prepared by Lucy Kralj of the Helen Bamber Foundation dated 7 October 2008 concerning the appellant's mental health and scarring.

2

In the light of that fresh material and in particular Ms Kralj's reports the question arose whether, pursuant to the Secretary of State's Enforcement Instructions and Guidance (the "Guidance"), the appellant should have been regarded as unsuitable for detention and therefore released. The critical provisions of the Guidance for the purposes of this appeal are parts of its para 55.10 as follows:

"The following are normally considered suitable for detention in only very exceptional circumstances…

• those where there is independent evidence that they have been tortured…"

3

The appellant submits that Ms Kralj's reports contained independent evidence that she, the appellant, had been tortured and that on that basis the Secretary of State should have released her from detention from 10 October 2008 or shortly thereafter, but in any event before her actual release on 13 November. On 4 November 2008 the Secretary of State had replied to the fresh representations, rejecting them as constituting a new claim for asylum, and wholly discounting the reports of Ms Kralj in the light of the appellant's previous lack of credibility.

4

The essential issue on this appeal therefore is whether Ms Kralj's reports contained independent evidence that the appellant had been tortured. The Secretary of State, below the defendant and in this court the respondent, denied that it did. She submitted that because the reports were based on the appellant's own information it did not constitute "independent evidence". The judge below, Mr Justice Burnett, agreed, and in any event found that there were very exceptional circumstances justifying detention. In his judgment of 31 March 2010, [2010] EWHC 684 (Admin), he put the matter as follows:

"24. The scarring report provided independent evidence that the claimant bore scars in nine areas, two of which she attributed to childhood injury. Of the remaining seven, the first was adjudged by Ms Kralj to be "highly consistent" with the explanation provided to her by the claimant of how she came by it. But it could have been caused by 'any superficial burn with a solid instrument.' The balance of the scars were consistent with having been intentionally inflicted by other people. It is clear, not only from the scarring report but also from the narrative part of Ms Kralj's assessment report, that she believed the claimant, taking everything she said at face value. She was unaware of the history since the claimant's arrival in this country including a judicial determination that she was not truthful in her accounts. Whether the scars were or were not the result of torture could only be judged by reference to the claimant's account of what had occurred. Ms Kralj's scarring report provided independent evidence that the claimant has the nine scars identified. It was independent evidence that seven of them were consistent with deliberately inflicted injury. But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant's account how they were caused…

27. The letter refusing to defer removal made it plain that the UK Border Agency considered the fresh representations, coming so shortly after the failure of a differently expressed challenge, to be a try-on. By the time the letter of 4 November was written and the decision was taken to maintain detention and oppose bail the Secretary of State's considered view of the new representations was clear. On any view it was appropriate to maintain detention whilst the representations were being considered. Even if there were any evidential basis upon which the claimant could show that she was either mentally ill or there was independent evidence of torture, paragraph 55.16 of the Instructions and Guidance is not in absolute terms but contemplates detention being maintained in very exceptional circumstances. The immediate background to the receipt of these representations provided ample material to support detention very exceptionally pending a decision to apply for judicial review."

AM's immigration history

5

As the judge observed, the appellant had previously been adjudged to be lacking (indeed totally lacking) in credibility. However, the tribunals which had considered her evidence had not known about her scarring. Ultimately, but after a long history of failure, the appellant succeeded in her asylum claim in a determination of the First Tier Tribunal dated 23 June 2010. That was after the judgment of Burnett J below. The FTT found that she had been detained in Angola, raped and tortured as claimed, and that her scars were the result of violent abuse or torture.

6

AM's immigration and earlier litigation history can conveniently be taken from the judge's account:

"3. The claimant is Angolan. She arrived in the United Kingdom in May 2007 on a visitor's visa which ha[d] been issued on 2 January. On 1 June 2007 she applied for asylum which was refused on 30 June 2007. On the same day a decision was made to remove the claimant to Angola as an illegal entrant. She exercised her right of appeal to the Asylum and Immigration Tribunal ("AIT"). Although the claimant had the benefit of legal representation before the appeal hearing she appeared in person before the Immigration Judge on 27 September 2007. Her appeal was rejected in a determination dated 2 October 2007. She claimed asylum on the basis that she would be persecuted as a result of her membership of the youth wing of the Front for the Liberation of the Cabinda Enclave. She claimed to have been arrested in December 2006, to have been beaten and sexually assaulted. The immigration judge did not believe the claimant and concluded:

"…37. I believe none of the Appellant's evidence; I find that she is an Angolan national who can be returned to Angola where nobody would have any adverse interest in her. She has no credibility whatsoever. I have taken into account section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. She has given evidence to both the Home Office and to myself which was designed or likely to conceal information or mislead. She has not answered questions honestly that had been put to her both in relation to her interview with the Home Office and when giving her testimony before me."

4. The claimant sought a reconsideration of her appeal. The Senior Immigration Judge refused the application, as did Lloyd Jones J.

5. On 11 April 2008 the Secretary of State detained the claimant pending removal. She remained in detention until released on bail on 13 November 2008. On 7 May 2008 solicitors acting for the claimant made representations which they suggested amounted to a fresh claim for asylum. Nothing new was advanced in support of the claim. In particular it was not suggested that the claimant had been tortured or was mentally ill. The Secretary of State rejected those submissions on 10 July 2008. A fortnight later the claimant lodged a claim for judicial review of that decision. Permission to apply was refused on paper by Goldring J on 7 August 2008. He considered the claim to be totally without merit and described it as 'hopeless'. The application was renewed orally but refused on 22 September 2008. In the meantime the claimant had made two unsuccessful applications for bail. On 11 August Immigration Judge Khan refused bail in these terms:

"…I am satisfied that there is a materially greater than normal risk of her absconding because of her previous failure to report. Furthermore, no sureties have been offered and despite the applicant having NASS accommodation, there would appear to be little incentive for her to comply with bail conditions. The risk of absconding is too high for bail to be granted."

6. Nothing had changed when the next application was heard on 1 September 2009, save that a surety had been found who was not thought satisfactory by the Judge. Additionally, the Immigration Judge considered the recent refusal of permission to apply for judicial review a significant factor i[n] evaluating the risk of absconding. On 28 September 2008 the Secretary of State set removal directions for 13 October."

7

It was just a few days earlier that the appellant...

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