The Queen (on the application of AC (Algeria)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Jeremy Johnson |
| Judgment Date | 06 February 2019 |
| Neutral Citation | [2019] EWHC 188 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3669/2018 |
| Date | 06 February 2019 |
[2019] EWHC 188 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jeremy Johnson QC, SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CO/3669/2018
John Walsh (instructed by Turpin & Miller LLP) for the Claimant
Jennifer Gray (instructed by Government Legal Department) for the Defendant
Hearing date: 16.1.19
Approved Judgment
Jeremy Johnson QC, sitting as a Deputy Judge of the High Court:
The Claimant has been detained under immigration powers since 25 December 2017, a period of over a year. He challenges the legality of his detention, the delay in arranging accommodation which would enable his release on bail, the delay in determining his claim for asylum, and the failure to refer him to the National Referral Mechanism (“NRM”) as a potential victim of trafficking. He seeks an order requiring his release, damages for false imprisonment, and declaratory relief.
Factual background
Summary outline
The Claimant is a national of Algeria. In May 2013 he claimed asylum in Switzerland but he left the country before a decision was made. He entered the United Kingdom unlawfully later the same year. On 11 March 2016 he pleaded guilty to 2 counts of sexual assault on a female. The following month he was sentenced to a 4 year custodial term. He was due to be released on licence on 25 December 2017. He has continued to be detained since that date, following the Secretary of State's decision to make a deportation order and pending his deportation. In the intervening period he has made a claim for asylum which has been dismissed. A travel document enabling him to be deported to Algeria has not yet been obtained (or even requested from the Algerian authorities). He has been granted bail in principle, subject to arranging appropriate accommodation. He has not been released because appropriate accommodation has not been provided. The Claimant therefore remains in detention. The Secretary of State recognises that he should be released to appropriate accommodation once that is available.
Offence
On 6 December 2015 the Claimant had been drinking alcohol in the centre of Charminster. Late at night he saw a lone young woman who he followed to a cash machine. He touched her bottom. She made it clear this was unwelcome. He persisted. She ran off. He caught up with her, pushed her against a wall and seriously sexually assaulted her. He was convicted of 2 counts of sexual assault and sentenced to 4 years detention in a young offenders' institution. The sentencing Judge described the offence as “an appalling attack on a vulnerable young woman on her own at night.”
Asylum claim
The Claimant's claim for asylum was made in June 2016 and was determined in October 2018 — a period of more than 2 years and 3 months. The chronology in more detail is as follows.
On 21 June 2016 the Claimant was served with notice of a decision to make a deportation order. This was 18 months before he was due to be released from his custodial sentence. He responded the same day by writing a short note in which he said “if I return to my country I would be killed.” This was treated as a claim for asylum. He was interviewed the following day. He gave an untruthful account that he was Syrian. The interpreter suggested that the Claimant was probably not Syrian and was more likely to be Algerian or Moroccan.
The Claimant was further interviewed in October and November 2016. He maintained his account that he was Syrian. By this point it had been established that the Claimant had claimed asylum in Switzerland and had been recorded as an Algerian national. Arrangements were made to interview the Claimant in order to determine his nationality. This was done in February 2017. An assessment was made that the Claimant was not Syrian and was more likely to be Tunisian or Algerian. Nothing of substance was then done in relation to the asylum claim until late 2017.
In December 2017 the Claimant was further interviewed in order to establish whether he might be at risk due to his sexuality. On 21 December 2017 a language analysis interview was conducted in order to determine the Claimant's nationality. He failed to engage with that interview.
On 31 January 2018 the Claimant was interviewed about his identity. By this time he was being detained under immigration powers. He now accepted that he had given a false name and had lied about his nationality. He did not, however, cooperate with further questioning and the interview was suspended. He instructed solicitors. On 12 February 2018 they wrote to the Secretary of State to say that the Claimant was willing to cooperate, that he was an Algerian national, and asking that his asylum claim be progressed. The Claimant was then interviewed further in May 2018. He admitted that he had previously lied about being Syrian. He said that he was Algerian, that he had been sexually abused from an early age, and that he had been held as a captive sex slave for six years.
The Claimant's account raised a question as to whether he was a victim of modern slavery. A further interview was arranged so that his account could be clarified with a view to deciding whether to refer him to the NRM. This further interview took place on 13 June 2018.
In the light of the account given by the Claimant in this interview (which included an allegation that he had been sold for sex over a period of years but that he was not usually physically restrained) the Secretary of State decided that a further interview was required to assess what were said to be discrepancies in the Claimant's account, and to decide whether to make a NRM referral. This interview took place on 24 July 2018. The Claimant again said that he had been sold for sex. He said that he stood by his previous accounts. He added:
“I was being used as a prostitute, I was never paid. The money went to [name given], to him and to his gangs.”
Following this interview it was decided that there was insufficient information to refer the Claimant's case to the NRM.
On 2 October 2018 the Secretary of State refused the Claimant's asylum claim and made a deportation order. He certified the applicability of the presumptions under s72(2) Nationality, Immigration and Asylum Act 2002, namely that the Claimant had been convicted by a final judgment of a particularly serious crime and that he constituted a danger to the community of the United Kingdom.
The Claimant appealed against this decision to the First Tier Tribunal. On 26 November 2018 the appeal was dismissed. The Judge held that the presumptions under s72(2) of the 2002 Act had not been rebutted:
“I consider that the offences for which he was convicted, although they happened in effect in a single incident, were very serious indeed as the sentencing remarks of HH Judge Johnson show.”
The Judge also rejected the Claimant's factual account that he would be at risk if he were returned to Algeria:
“I assessed this Appellant as being a person who is incapable of telling the truth or giving a consistent account. His credibility is severely undermined in all material particulars… His account is full of inconsistencies, which cannot be explained by the change of nationality or age alone.”
The Claimant did not bring a further appeal to the Upper Tribunal within the permitted time. He had therefore exhausted his rights of appeal and there was no statutory bar on his removal from the United Kingdom. He has subsequently sought to bring an out of time appeal. This application has yet to be determined.
Detention
On 25 December 2017 the Claimant was due to be released on licence from his custodial sentence. He continued to be detained under immigration powers.
The Claimant's detention has been reviewed at roughly 4-weekly intervals in written “Detention & Case Progression reviews” (“DCPRs”). At each review continued detention has been authorised, having regard to the risk of absconding, the risk of re-offending and the prospect of removal. More recently, however, it has been acknowledged that the Claimant could and should be released to appropriate accommodation.
DCPR1 took place on 18 January 2018. Continued detention was authorised for 28 days. It was assessed that the Claimant was a high risk of absconding:
“[The Claimant] currently has no valid leave to remain in the UK. On entering the UK he made no attempt to regularise his stay here but instead went on to offend. It was only when he came to the attention of the Home Office that he claimed asylum. In addition he went on to claim to be a Syrian national to further prolong his stay here but has made no attempt to comply with the interview process in order to confirm his nationality. He is aware that the Home Office will consider his deportation from the UK in the event that his asylum claim is refused and as such there would be no incentive for him to remain in one place and comply with any reporting restrictions that may be placed on him if he is released.”
It was also assessed that he posed a high risk of re-offending and causing harm:
“…consideration has to be given to the fact that he was convicted of a sexual offence and sentenced to a total sentence of 4 years… He has submitted no evidence to show that he has been rehabilitated by taking part in any self-help groups or courses to prepare him to be released into the community with members of the public. He has shown that he is not adverse to using force and intimidation against members of the public and as such he is considered to pose a serious risk of harm, if the opportunity should arise…
His offender manager has stated…: “[The Claimant] is posing a serious risk of harm and there are...
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