The Queen (on The Application of Sn) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 17 June 2014 |
| Neutral Citation | [2014] EWHC 1974 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 June 2014 |
| Docket Number | Case No: CO/138/2011 |
[2014] EWHC 1974 (Admin)
IN THE HIGH COURT OF JUSTICE
THE QUEEN's BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mrs Justice Carr Dbe
Case No: CO/138/2011
Mr Alasdair Mackenzie (instructed by Lawrence Lupin Solicitors) for the Claimant
Mr Paul Greatorex (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 5 June 2014
Introduction
The Claimant, a national of Sri Lanka, challenges the lawfulness of his detention under the Immigration Act 1971 ("the Act") from 11 th July 2010 to 8 th October 2010 and seeks substantive damages accordingly. His claim was issued on 7th January 201It was stayed pending the service of amended grounds following the decision of the Supreme Court in Lumba v SSHD [2012] AC 245. Permission to apply was granted in September 2011.
The Claimant claims in summary:
a) that his detention was unlawful shortly after the point of detention on 11 th July 2010: the Defendant did not carry out an appropriate medical examination within 24 hours. If the Defendant had carried out a medical examination it would have revealed evidence that the Claimant had been tortured and the Claimant would have been released;
b) alternatively, that his detention was unlawful after his first claim for judicial review of the Defendant's refusal to treat him as making a fresh claim ("the first JR claim"). That claim was issued on 10 th September 2010. From then on the Claimant's removal was no longer achievable within a reasonable period and detention was in breach of the principles established in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. Moreover, by then, the Defendant had obtained independent evidence that the Claimant had been tortured.
The Facts
It is necessary to set out the facts in some detail. The Claimant is a national of Sri Lanka born on 3rd July 1982. In 2005 he applied for entry clearance in this country as a student, which application was refused. A subsequent appeal was dismissed in 2006.
The Claimant alleges that he arrived in the United Kingdom on 16th October 2008. He did so with the assistance of a fraudulently obtained passport. He arrived via France but did not make an asylum application there. Nor did he make an asylum claim on arrival in this country but rather a few days later, namely on 20th October 2008.
The Claimant was interviewed for asylum purposes on 6th November 2008. In that interview he claimed to have been in detention and the victim of torture (including being beaten, burned with cigarettes and raped) in Sri Lanka. He identified the following periods of detention:
a) June 2004 to March 2005;
b) 3 to 4 days in April 2005;
c) August 2005 to September 2008.
He showed a number of scars to the interviewing officer.
On 14th November 2008 the Defendant refused his asylum claim by a long and detailed letter. The Claimant's accounts were viewed as inconsistent and lacking credibility. It was not accepted that the Claimant had faced previous persecution at the hands of the Sri Lankan authorities or the Liberation Tigers of Tamil Eelam ("the LTTE"), nor was it accepted that he would come to the adverse attention of either on return. His account of having assisted the LTTE by carrying parcels between 2002 and 2004 was not accepted. Nor was it accepted that he had come to the attention of the authorities as a result. It was not accepted that he had been arrested in connection with the murder of CID officers, nor that he was imprisoned, nor that he had come to the adverse attention of the authorities as a result.
The Claimant appealed the decision to refuse him asylum with the assistance of legal representation. His appeal was rejected by Immigration Judge Strowger in a determination promulgated on 10th January 2009. The appeal was refused on asylum, human rights and humanitarian protection grounds. The Immigration Judge did not accept that the Claimant was telling the truth and did not accept the Claimant's accounts of events in Sri Lanka. He was not found " to be at all credible in his story". It was noted that the Claimant claimed to have scarring from cigarette burns inflicted in detention, but noted that no medical or photograph evidence had been adduced and that he, the judge, had not been shown any scars. The Immigration Judge likewise held that if there were any such scars they did not in themselves give rise to risk. He found the Claimant not to be at risk on return to Sri Lanka and dismissed his appeal.
Applications for re-consideration of that determination were unsuccessful. An application for statutory review was rejected by this Court on 11 th May 2009. The Claimant was appeal rights exhausted by 21st May 2009.
In the meantime, on 10 December 2008 the Medical Foundation for the Care of Victims of Torture ("MF") had written to the Claimant inviting him to attend later that month for an assessment to see how MF could assist him. On 8th June 2009 MF wrote to the Claimant informing him that he had been accepted for treatment and referring him to its Tamil group.
On 25 th June 2009 the Claimant's solicitors wrote with further submissions to the Defendant, enclosing the letter from MF of 8 th June 2009. Shortly after this, in about August 2009, the Claimant absconded, breaching his monthly reporting obligations.
On 11 th July 2010, however, he was encountered by chance in Norfolk. He was arrested and detained by the Immigration Service on 11th July 2010, being treated (rightly) as an absconder.
On the same day he was taken to Oakington IRC. An initial screening assessment was carried out. The heading to the assessment document read:
" It is very important that you assist us in completion with this assessment form to enable us to provide for your health needs whilst you are at Oakington IRC. The information provided will be completely confidential and not disclosed without your written consent."
The assessment recorded that the Claimant did not wish to make an allegation that he had been tortured prior to coming to the UK. The question posed was:
" Do you wish to make an allegation that you have been tortured prior to coming to the UK?"
The box " No" was then ticked.
The Claimant was also seen at a medical clinic at Oakington IRC on 11th July 2010 as 2300 hours. There is a full entry which records the Claimant's weight, temperature, blood pressure and pulse, amongst other things, and also the fact that the Claimant was " for review with GP in the am".
At 1125 hours the next day there is the following entry in the Claimant's medical records, just below the entry the evening before, as follows:
" Feels anxious & stressed. Some feeling of nausea. Possible has haemorrhoids and constipation. Awaiting results of? scan. X-ray. Adv. To be reviewed 2/7 following R & R. To sign consent for records"
The signature to these notes is illegible.
A detention review was carried out then and on 18th July 2010. On 20th July 2010 a request for temporary admission was made on behalf of the Claimant. On 23rd July 2010 the Defendant responded to that request upholding the decision to detain at that time. In relation to the suggestion of a fresh application and referral to a psychologist because of mental health issues, the Defendant stated that the Claimant had produced no evidence to prove that he had a mental health condition. The Claimant's detention was further reviewed on 25th July 2010.
On 29th July 2010 a fresh application for asylum was served by the Claimant's solicitors. It was alleged that the Claimant was suffering from mental health difficulties and indicated (in draft only) that an unidentified expert had been instructed to prepare a report. There was no mention of the Claimant's involvement with MF.
On 30th July 2010 the Claimant was seen by the healthcare team. No allegation of torture was made. An application for bail was submitted to the First Tier Tribunal and rejected on 6 th August 2010 on the basis of the risk of absconding.
A further detention review took place on 1st August 2010. On 2nd August 2010, in response to the Claimant's solicitor's application of 29 th July 2010, the Defendant wrote asking for medical evidence to ensure that the Claimant received appropriate care and consideration. She also suggested obtaining the Claimant's consent for access to his medical records.
The Claimant was seen by the healthcare team again on 8 th August 2010, with no mention of torture. A monthly progress report was compiled on the same day. Further detention reviews were carried out on 8th and 15th August 2010. The Claimant was seen again by the healthcare team on 10 th, 12 th, 13 th, 15th and 16 th August 2010, with no mention of torture.
On 16 th August 2010 the Defendant sent a chasing facsimile to the Claimant's solicitors in relation to the medical evidence. The Defendant warned that if no report was forthcoming a decision would be made on the basis of the information available. On the same day the Claimant's solicitors informed the Defendant that a medical appointment had been made for him for 13th September 2010. A request for temporary admission was made. That was rejected on 20 th August 2010 in the absence of evidence of mental health difficulties and in the light of the Claimant's previous absconding.
On 16 th August 2010 the Defendant also wrote to MF asking for confirmation of the authenticity of MF's letter of 8 th June 2009. On 18 th August 2010 MF informed the Defendant that it was unable for reasons of confidentiality to liaise about confidential clinical treatment. The Defendant pressed MF, requesting simply confirmation of whether the document was...
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