The King on the application of SPM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Whipple,Lord Justice Snowden,Lord Justice Stuart-Smith |
| Judgment Date | 04 July 2023 |
| Neutral Citation | [2023] EWCA Civ 764 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001658 |
[2023] EWCA Civ 764
Lord Justice Stuart-Smith
Lord Justice Snowden
and
Lady Justice Whipple
Case No: CA-2022-001658
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Mrs Justice Lang
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Goodman KC and Miranda Butler (instructed by Duncan Lewis Solicitors) for the Appellant
Thomas Roe KC and Rowan Pennington-Benton (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 16–17 May 2023
Approved Judgment
Introduction
This is an appeal against the judgment of Lang J ( [2022] EWHC 2007 (Admin)) dismissing claims for judicial review brought by SPM, the appellant, against the Secretary of State for the Home Department (“SSHD”). There was originally a second claimant, Women for Refugee Women (“WRW”), a charity which supports refugee women, but WRW has played no part in this appeal.
The appellant's claim centres on complaints that there was a real risk that her common law rights of access to justice were infringed by what she says were inadequate arrangements for in-person legal visits for detainees at Derwentside Immigration Removal Centre (“Derwentside”) from its opening in December 2021 to 30 June 2022, after which the arrangements changed. She says that her detention at Derwentside was rendered unlawful because of the existence of a real risk of breach of her rights. She advances her claim on her own behalf and on the basis that a judgment in her favour would necessarily apply to other women held at Derwentside in the relevant period, although she does not in any formal sense represent the other women. By way of relief, she seeks declarations that her right to effective access to justice was unlawfully compromised and that in consequence she was unlawfully detained. She also seeks declarations to similar effect in relation to all the other women who were detained at Derwentside during the relevant period. She seeks damages for false imprisonment.
Permission to appeal was granted by Andrews LJ on the papers on the single ground that Lang J had failed to apply anxious scrutiny or give reasons for certain of her conclusions. Andrews LJ refused permission for SPM's other grounds of appeal. The case had originally involved claims of direct and indirect discrimination but those were rejected by the judge and have now fallen away.
The Facts
SPM's immigration history
SPM was born on 28 December 1974. She is South African. She came to the UK on 5 December 2018 on a visitor's visa which was valid until 6 May 2019. Her native language is Zulu. She has limited knowledge of English. She claimed asylum on 22 February 2019. Her claim was refused by the SSHD on 29 February 2020. Her appeal to the FTT was dismissed on 9 November 2021. Her appeal rights were exhausted on 24 November 2021.
Lang J recorded the following background in relation to the appellant's immigration and detention history, with some small amendments:
“14. According to SPM, she was the victim of physical and mental abuse at the hands of her stepmother, and forced to work from the age of 12 years. She was raped by her uncle. At the age of 14 or 16 she entered into an arranged marriage with a man called Joshua, who forced her to work as a prostitute, and act as a servant to his other wives. She escaped from this forced marriage and met a man called Samuel who was the leader of a criminal gang. He and members of his gang subjected her to physical, mental and sexual abuse. In 2014, SPM was stabbed by Samuel in the abdomen and has scarring as a result. In 2015 SPM was shot in the head by Samuel, which caused her to suffer from epilepsy and hearing impairment. She now requires hearing aids and struggles to hear on the telephone. After the shooting, she went into hiding, but she was followed and threatened by Samuel and his men.
15. In the FTT appeal, SPM was represented by [solicitors and counsel]. FTT Judge Lebasci concluded that SPM was not a credible witness and the evidence did not support a finding that SPM had been a victim of forced labour, forced marriage and violence. He dismissed her asylum and human rights appeal. In the course of his decision the FTT Judge said:
“47.9 It is the Appellant's evidence Samuel stabbed her with a knife in 2014 and she was admitted to hospital for two months. She claims to have provided medical evidence and says she is unable to provide anything else. At the hearing, the Appellant produced a photograph of the scar which she says she has been left with as a result of this injury. The medical evidence provided…appears to relate to a gunshot injury in 2015 and therefore does not assist me in relation to the alleged incident in 2014. No evidence from a health care professional in the UK has been provided regarding the existence of any scar which the Appellant has or its likely cause.”
16. On 24 January 2022, SPM was detained when reporting in accordance with her reporting conditions, and she was served with liability to removal papers (form RED.0001). According to SPM, her solicitors had not informed her of the outcome of her appeal, despite her frequent attempts to contact them. Removal directions were set for 7 February 2022.
17. On 27 January 2022, SPM was transferred to Derwentside. She claims she called [her solicitors] but she could not reach them. After her arrival SPM was given a pamphlet which explained that she could ask for legal advice. She claims she rang the legal advice telephone number in the pamphlet but did not receive any response. She claims she asked the officers at Derwentside to assist her in finding a solicitor but they did not do so. On 29 January 2022, SPM asked her partner to bring her medication and batteries for her hearing aids. When he arrived at the detention centre he was refused entry. This led to SPM feeling suicidal and being placed on an open Assessment Care in Detention and Teamwork (“ACDT”) plan (for detained individuals at risk of suicide or self harm).
18. On 31 January 2022, still without any legal assistance, [SPM] wrote to the [SSHD] asking her to reconsider her case. She explained that she was having difficulty finding a solicitor.
19. On 2 February 2022 a report under Rule 35 of the Detention Centre Rules 2001 (“a Rule 35 report”) was drawn up by a member of the Derwentside healthcare team. It reported her concern that SPM was a victim of domestic abuse and torture. On examination, SPM had a number of significant scars which were consistent with her account. The report summarised her mental and physical health issues.
20. On 4 February 2022, the [SSHD] maintained SPM's detention in response to the Rule 35 report. Also, on 4 February 2022 the Defendant wrote to SPM maintaining her decision to remove [SPM] to South Africa. SPM was served with the IS151D Removal Papers and Immigration Factual Summary.
21. On 4 February 2022, SPM was referred to Duncan Lewis Solicitors by a member of WRW who had spoken to her on the phone. Ms Lily Parrott, a solicitor at Duncan Lewis, immediately contacted SPM by telephone. However, SPM and Ms Parrott had difficulty communicating because of SPM's hearing impairment and limited English (no Zulu interpreter was available). As a result, Ms Parrott was unable to obtain full instructions. At Ms Parrott's request, a member of IRC staff printed out the authority and legal help forms and helped SPM scan and send the signed documents to Ms Parrott, along with the notice of liability to removal, and the Rule 35 report. Once Ms Parrott realised that SPM had a hearing impairment, she was able to take further instructions from SPM on the telephone more effectively on several occasions by speaking loudly directly into the telephone microphone which increased SPM's comprehension. Ms Parrott also requested and received further relevant documents from the Home Office.
22. On 6 February 2022, Ms Parrott sent an urgent pre-action letter to the [SSHD] which (among other matters) identified clear trafficking indicators which they submitted required investigation and referral into the National Referral Mechanism (“NRM”).
23. On 6 February 2022 the [SSHD] maintained the removal directions and moved SPM to Colnbrook IRC (near Heathrow airport), in preparation for her departure on 7 February 2022. On 7 February 2022, in response to the pre-action correspondence from Ms Parrott, the [SSHD] cancelled the removal directions for that day.
24. Ms Parrott made an appointment to see SPM in person on 11 February 2022 at Colnbrook. However, the appointment was cancelled as SPM was moved back to Derwentside by the [SSHD] on 10 February 2022 without prior notice. A medico-legal visit by an expert to document her scarring also had to be cancelled because there was no expert available who could travel to Derwentside.
25. On 10 February 2022, SPM was referred into the NRM for identification as a victim of trafficking. On 16 February 2022 the [SSHD] made a positive Reasonable Grounds decision in relation to SPM, identifying her as a potential victim of modern slavery. Her Conclusive Grounds decision is still awaited.
26. On 25 February 2022, SPM was released on immigration bail.”
Derwentside
Lang J recorded the background facts relating to Derwentside at [27]–[41] and the following paragraphs summarise her findings, with some small additions.
Derwentside is a women-only immigration removal centre (“IRC”) situated in County Durham, around 15 minutes' drive from Newcastle. The SSHD announced her intention to open Derwentside as an IRC on 1 March 2021. It had previously been a secure training centre which could relatively easily be converted for use as an IRC. Female detainees had...
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