The Queen (on the application of I.O. (Nigeria)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Andrew Thomas |
| Judgment Date | 02 November 2018 |
| Neutral Citation | [2018] EWHC 2940 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 November 2018 |
| Docket Number | Case No: CO/455/2017 |
[2018] EWHC 2940 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Thomas QC, sitting as a Deputy High Court Judge
Case No: CO/455/2017
Catherine Jaquiss (instructed by Duncan Lewis) for the Claimant
Carine Patry (instructed by Government Legal Department) for the Defendant
Hearing dates: 09 and 10 October 2018
Judgment Approved by the court for handing down
Andrew Thomas QC:
The Claimant is 43 years of age and a national of Nigeria. He came to the UK in September 2012 on a 3 month visitor visa and overstayed. He avoided any contact with the border authorities or police until he was encountered and detained in London in July 2016. He was placed in immigration detention pending removal back to Nigeria.
In September 2016, five weeks after his detention, the Claimant made asylum and human rights claims alleging that he would be persecuted if returned. His claims were rejected by the Defendant on 14 th October 2016 and certified as clearly unfounded. A challenge by way of Judicial Review was dismissed by the Upper Tribunal on 29 th November 2016.
In these proceedings, the Claimant advances two separate claims, namely:
i) a challenge to the Defendant's decision that the Claimant's further submissions in January 2017 did not amount to a fresh claim for the purposes of Paragraph 353 of the Immigration Rules; and
ii) a challenge to the Defendant's decision to detain him from 28 th July 2016 until his release on 22 nd February 2017.
Background
The Claimant comes from Lagos State, Nigeria. His first language is Yoruba but he also speaks English. There is evidence that he had a difficult and deprived childhood and that he suffered significant physical abuse. He received limited schooling. He later obtained work, first as a bus conductor and then as a shop assistant. In his late 20s he opened a shop of his own and by his own account his business was a modest success. He ran the shop for about 10 years. His younger brother worked for him.
The Claimant's case is that he left Nigeria in 2012 as a result of a violent attack by a gang who were looking for his brother. The Claimant says that the gang attacked him with severe violence and that they destroyed his shop. He went into hiding for several days then flew to the UK at the end of September 2012.
The Claimant was 37 years old when he came to the UK. Immigration records show that he landed at Heathrow on 28 th September 2012. He was spoken to by an immigration officer. He said that he was the owner of a successful shop business in Lagos and that he was coming to the UK in order to rest. He was granted entry on 29 th September 2012.
The Claimant's visa expired on 7 th December 2012. He overstayed and made no attempt to contact UK immigration authorities.
In 2014 the Claimant had a brief relationship with a woman named MA, also Nigerian. They cohabited for about 5 weeks and she became pregnant by him. The Claimant left her suddenly in September 2014. According to his own witness statement, the Claimant fled because he had seen police officers in the area and he feared that they had come to return him to Nigeria. He lost contact with MA for about two years. She has since moved to live in Birmingham. They had met each other again shortly before his detention in July 2016. He had seen his son on two occasions shortly prior to his detention.
On the morning of 28 th July 2016, the Claimant was encountered by border force officials at a house in London. He gave a false name but fingerprint checks revealed his true identity. The Claimant was detained with a view to his removal.
I will deal separately with the facts relevant respectively to the Para 353 issue and to the lawfulness of detention. Although there is obvious overlap, it is more convenient to set out the relevant material within the judgment in this way. In reaching my judgment on both issues I have taken into account the whole of the evidence.
The asylum and human rights claims
The Claimant was detained initially at the Verne IRC and later at Harmondsworth IRC. He had no lawful right to remain in the UK after his visa expired in December 2012. He had been issued with a Nigerian passport but said that he had lost it shortly after his arrival. The only barrier to his removal was the need to obtain an Emergency Travel Document (‘ETD’). On 23 rd August 2016, the Nigerian High Commission confirmed in principle that they would issue the ETD.
On 2 nd September 2016, five weeks after his initial detention, the Claimant said that he wanted to make a claim of asylum. The screening interview took place on 23 rd September 2016 (conducted in English) and the full interview took place on 5 th October 2016 (conducted in Yoruba). The Claimant has since produced a witness statement prepared by his Solicitors and given various accounts to his doctors.
There are significant factual discrepancies between the accounts which at different times the Claimant has given about the events which took place in Nigeria prior to his departure. However, nothing turns on that for the purposes of these proceedings. The Defendant's case is that the claims for asylum and humanitarian protection fail even if the Claimant's factual account is accepted at its highest.
In outline, the Claimant's case is as follows. As well as working in his shop, his brother was a student at a local university. He had become involved with a gang or cult (also referred to as a ‘co-fraternity’) but had ended up in dispute with them. The Claimant himself had no involvement with this group.
The Claimant has given differing explanations for his brother's falling out with the group. He has said that his brother had been targeted because he had joined a rival gang. Another account is that his brother had been given some money by a local politician; he was supposed to distribute it amongst members of the gang but he had kept it for himself. The Claimant has also said that his brother had killed someone and the gang were looking for revenge. Taking his case at its highest, the essential facts are that his brother had become a target of an organised gang or cult who wanted to kill him, and that the gang had links to a political party.
According to the Claimant, on a day in August 2012 members of the gang came to the shop looking for his brother. They were armed with weapons including wooden bats, a gun and a cutlass or machete. When they found that the brother was not there, they demanded that the Claimant tell them where to find him. They remained in the shop for several hours, threatening him, vandalising the shop and eventually beating him. The Claimant lost consciousness but when he later woke up he had multiple injuries including wounds to his arm and leg. The shop was burned down. The Claimant was helped to escape by a local pastor. The gang came looking for him again but he remained hidden at the pastor's house for 5 days. After that, he says that he lived rough in garages.
The Claimant says that his mother's house was attacked as well and she was injured. He has stated that she died as a result of her injuries. He has produced two documents: a death certificate showing that his mother died on 30 th August 2012; and an obituary notice in the name of the Claimant and his brother which states that their mother died on 30 th August 2012 “after a brief illness”.
The Claimant says that the pastor's relatives tried to report these crimes to the police at two local stations. They told him that the police had said that they could not help because they do not get involved with ‘cult matters’. They advised him to leave. The Claimant says that he eventually went to a travel agent and bought a ticket to fly to the UK.
The Detailed Reasons for rejecting the claims
The claims for asylum, humanitarian protection and human rights claims were rejected by the Defendant on 14 th October 2016. The decision letter contains 21 pages of detailed reasons. The present claim for judicial review relates to the decision some months later rejecting further submissions from the Claimant. However, as Miss Patry rightly submits, it is important to give close scrutiny to the original decision to understand the Defendant's full reasons for rejecting the claims both initially and following the further submissions.
The Defendant's approach was, for the purposes of the decision, to accept the Claimant's assertions about the factual background at their highest. The Detailed Reasons state: “Although your claim has been considered at face value this is not a concession that your claim has been accepted.”
On the Defendant's case, the reasons given for rejecting the claims can be divided into four separate grounds, each of which independently would be a bar to the claims succeeding. Miss Patry sets them out as follows.
i) The factual account which the Claimant gave did not amount to persecution within the definitions provided by Articles 9 and 10 of the Qualification Directive 2004/83/EC and/or the Refugee Convention. (see Paras 40 to 47 of the Detailed Reasons). The Claimant himself had never been a target of the gang or cult. At all times the objective of the gang was to force him to help them find his brother.
ii) In any event, the Defendant says, there is no basis for suggesting that there is a well-founded fear of persecution on return (see Paras 48 and 49 of the Detailed Reasons). Again, the point is made that there is nothing to suggest that the Claimant himself would be a target.
iii) The Defendant says that there was a sufficiency of protection in Nigeria (see Paras 49 to 65 of the Detailed Reasons). The Defendant relies on...
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