R SW v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | John Cavanagh |
| Judgment Date | 16 October 2018 |
| Neutral Citation | [2018] EWHC 2684 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4926/2017 |
| Date | 16 October 2018 |
[2018] EWHC 2684 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Cavanagh QC,
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/4926/2017
Ronan Toal and Raggi Kotak (instructed by Duncan Lewis) for the Claimant
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing date: 2 October 2018
Judgment Approved
By order dated 25 October 2017, the Claimant has been granted anonymity and no report of this case shall directly or indirectly identify the Claimant.
John Cavanagh QC, sitting as a Deputy High Court Judge:
Introduction
In this application for judicial review, the Claimant seeks a declaration that her detention under Immigration Act powers during the period from 19 September 2017 until her release on 13 October 2017 was unlawful, and she seeks damages for false imprisonment.
The Claimant is a national of Namibia, and was born on [a date in] 1978. She entered the United Kingdom on 21 July 2017, and was given leave to enter as a visitor until 21 January 2018. The conditions of entry required that the Claimant did not work whilst she was in the United Kingdom. On 19 September 2017, the Claimant was arrested in Portsmouth and admitted that she had been working as a carer, in breach of the conditions of entry. She was taken into detention and was served with a Notice of Removal.
The Claimant's medical records show that, whilst she was examined by a nurse within 24 hours of being taken into detention, she was not seen by a doctor during this period. The records contain notes that were made by a doctor, Dr Oozeerally, on 24 September 2017, but, as I will explain later in this judgment, there is some dispute as to whether Dr Oozeerally met with the Claimant or simply made the notes after reviewing the medical file.
On 27 September 2017, the day on which she was served with notice that she was to be removed on 3 October 2017, the Claimant claimed asylum, saying that she feared returning to Namibia. In a written Statement of Additional Grounds, made under section 120 of the Nationality, Immigration and Asylum Act 2002, she said that she had been sold into slavery/domestic work because of her ethnicity, and that she feared that she would be killed on return or forced back into slavery. She also said that she wanted a trafficking referral. A trafficking referral may be made by a First Responder (which includes the Defendant) to the Competent Authority under the National Referral Mechanism (‘NRM’) to determine whether a person has been a victim of trafficking. No trafficking referral was made to the Competent Authority by the Defendant at that stage. This was because, notwithstanding the assertion made by the Claimant, it was not considered that she was a potential victim of trafficking. An immigration officer took the view that the application was late and opportunistic and that it had the hallmarks of an abusive claim.
On 2 October 2017, an immigration officer completed an ‘initial contact and asylum registration form’, following the asylum screening interview with the Claimant. The form recorded the Claimant's answer when she was asked to explain briefly all the reasons why she could not return to her home country. The answer was recorded as follows:
“There are some women who take me from my mother and then take me to their homes. They make me work and take me to small school. They were violent to me and aggressive. I can't remember when it started. Someone broke my arm with a stick.”
On 10 October 2017, the Claimant was examined by a Home Office doctor, Dr Mahmood. Dr Mahmood produced a Rule 35 report in which he stated that the Claimant had given him an account of a history of domestic servitude in Namibia. The Claimant had informed him that she had been taken away from her family as a small child and forced to work for another family, whose members routinely beat and verbally abused her, and whose male members raped her and forced her to have sex with other men. The Claimant informed the doctor that she had travelled to the UK to escape the treatment that she had endured. The Claimant has three children in Namibia. Dr Mahmood noted that the Claimant had several scars on her right arm.
Dr Mahmood's assessment stated that the Claimant's story was coherent and that she had been able to answer any questions to fill in missing blanks. Dr Mahmood said that the Claimant had stated that her detention reminded her of being forcefully held like she was in Namibia. He concluded that that, given the extent of the Claimant's torture, she was not fit for detention and was certainly at risk of worsening should her detention continue.
On 12 October 2017, the Defendant wrote to the Claimant to inform her that her claim of ill treatment had been considered in line with the guidance set out in the Detention Services Order 9/2016 and the ‘Adult at Risk Policy’, and that she was regarded under the Policy as an Adult at Risk – Level 2. The Defendant informed the Claimant that, as a result, a decision had been taken to release her from detention, and the Claimant was duly released into hostel accommodation on 13 October 2017.
On 29 November 2017, the Claimant was referred by the Salvation Army to the Competent Authority for determination of her trafficking claim. On 20 December 2017, the Defendant, acting as Competent Authority, decided that there were reasonable grounds to believe that the Claimant was a victim of trafficking. The Claimant has yet to be assessed for the next and final stage of the NRM process, the ‘conclusive grounds’ decision. At that stage, the Competent Authority will reach a decision as to whether there are conclusive grounds that the Claimant is a victim of trafficking.
Proceedings for judicial review were issued on 25 October 2017, just under two weeks after the Claimant had been released from detention. On 27 November 2017, Mrs Justice Lang DBE granted permission to apply for judicial review. The original Grounds included a challenge to the Defendant's decision not to refer the Claimant to the Competent Authority, but this was rendered otiose by the referral in December 2017. The remaining issue in the proceedings is a challenge to the lawfulness of the Claimant's detention. The Claimant was granted leave to file Amended Grounds, which are dated 29 June 2018.
The Claimant challenges the lawfulness of her detention on three separate grounds. These are:
i) There was no statutory power to detain her;
ii) The Claimant's detention was unlawful because rule 34 of the Detention Centre Rules was breached as the Claimant was not examined by a doctor within the first 24 hours of her detention (and, indeed, the Claimant contends that no such examination took place until she was seen by Dr Mahmood on 10 October 2017); and/or
iii) The Defendant, in her capacity as First Responder, had acted unlawfully in failing to refer the Claimant to the Competent Authority, on or about 27 September 2017, as soon as the Claimant claimed that she had been trafficked.
I will first explain my decision to permit the full hearing of this claim to proceed by way of an application for judicial review, even though, as the only substantial issue remaining is whether the Claimant should recover damages for unlawful detention, the claim is of a type that would ordinarily have been dealt with in the Queen's Bench Division or the County Court, not the Administrative Court. I will then deal in turn with each of the three grounds relied upon by the Claimant.
The Claimant has been represented by Mr Ronan Toal and Ms Raggi Kotak, and the Defendant has been represented by Mr Zane Malik. I am grateful to them all for their clear and helpful submissions.
Venue
This claim concerns the legality of the Claimant's detention. The Claimant had already been released from detention before her claim commenced. At the point at which the proceedings began, the Claimant also had an additional ground of challenge, relating to the decision not to refer her to the Competent Authority, but this had fallen away by December 2017.
It follows that, since December 2017, this has essentially been a claim for damages. It is true that the Claimant seeks a declaration as well as damages in respect of unlawful detention, but the claim for a declaration does not add anything of substance to the claim.
There is no doubt that, in the ordinary course of events, claims such as this should be pursued in the Queen's Bench Division or the County Court. This has been made clear on many occasions, for example in Swaran v Secretary of State for the Home Department [2014] EWHC 1062 (Admin), per Dingemans J, at paragraphs 30–33, R (DK) v Secretary of State for the Home Department [2014] EWHC 3257 (Admin), per Haddon-Cave J, at paragraph 4, and R (SS) v Secretary of State for the Home Department [2015] EWCA Civ 652, at paragraph 11. It has been stressed that the Queen's Bench Division and the County Court are better suited than the Administrative Court to deal with contested issued of fact about historic events, and that it would be wrong to clog up the Administrative Court with damages claims.
Nevertheless, I have taken the view that it was appropriate for this matter to proceed to a full hearing by way of judicial review. As the relief sought includes a declaration and so is not limited solely to damages, the Administrative Court has jurisdiction to deal with the matter (see CPR 54.3(2), which provides that a claim for judicial review may include a claim for damages, but may not seek such a remedy alone). The Defendant has not applied for a transfer to the Queen's Bench Division or County...
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