The Queen (on the application of H) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 19 February 2015 |
| Neutral Citation | [2015] EWHC 377 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5121/2014 |
| Date | 19 February 2015 |
[2015] EWHC 377 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (CARDIFF)
Cardiff Civil and Family Justice Centre
2 Park Street
Cardiff
CF10 1ET
Mr Justice Gilbart
Case No: CO/5121/2014
Charlotte Kilroy (instructed by Hoole and Co, Solicitors of Bristol) for the Claimant
Mona Bayoumi (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 15th-16th January 2015 (at Bristol Civil Justice Centre)
In this matter the Claimant, by Amended Detailed Grounds of 14th November 2014, seeks the following relief
i) a declaration that his removal from the United Kingdom by the Defendant was unlawful;
ii) a declaration that his detention was unlawful from 24th June 2014 until 19th August 2014;
iii) damages for his unlawful detention and removal;
iv) an order requiring the Defendant to return him to the United Kingdom.
Given the circumstances which are alleged justify the Claimant's claim for asylum, I shall refer to him as H. I shall deal with the matter under the following heads
i) Chronology in brief
ii) Overview of the respective cases
iii) The Detention Fast Track system and the Detention Action litigation
iv) History of the Claimant's detention and of his claim for asylum
v) The cases before the Court
vi) Ground 1; was the removal on 19 th August 2014 unlawful?
vii) Ground 2: was the Claimant's detention unlawful?
viii) What relief should be given?
a) Damages for unlawful detention and their measure
b) Exercise of discretion as to removal
c) Should the Court order that the Claimant be returned?
It should be noted that under section (viii) I shall consider the effect of the alleged flaws in the DFT processes as applied to the Claimant's case.
Chronology in Brief
What follows are the bare bones of the events in issue. I shall at a later stage consider the details of what occurred, upon which I heard a considerable amount of argument.
The Claimant, who is a 57 year old Afghan, had visited the United Kingdom from Pakistan in early 2014 on a visitor's visa. He has a son who lives in Manchester. He left the UK on 13th March 2014. On 24th June 2014 he arrived by aeroplane at Manchester Airport and claimed asylum. He was detained at the airport. On 25th June 2014 he was given a screening interview and accepted into the Detention Fast Track ("DFT") process. He was kept in detention, but then transferred to Harmondsworth in Middlesex. On 1st July 2014 he was given his substantial asylum interview, and kept in detention. He was then given a further interview on 3 rd July 2014.
On 8th July 2014 his asylum claim was refused. He appealed against the refusal. On 16th July 2014 he appeared before Judge Walker of the First Tier Immigration and Asylum Chamber. On 17th July 2014 the Judge handed down his decision dismissing the appeal. On 22nd July 2014 Judge Woodcraft of the First Tier in a written decision refused permission to appeal. After the submission of further grounds on 24th July 2014, Judge Chalkley of the Upper Tribunal refused permission to appeal.
The Claimant's appeal rights were exhausted on 28th July 2014. He remained in detention. On 7th August 2014 he was served with removal directions stating that he would be removed on a flight from London Heathrow on 19th August 2014 at 23.30 hours.
On 5th August 2014 his new solicitor Mr Khalid Khashy of Hoole and Co (instructed on 21st July 2014) wrote to the Home Office submitting a fresh claim for asylum. On 7th August 2014 Mr Khashy asked for a decision by 8th August, and warned that if it was not received, judicial review proceedings would be issued. He referred to the decision of Ouseley J in the Detention Action litigation (see below).
On 12th August 2014 Hoole and Co wrote a pre action letter in accordance with the pre action protocol. It attached a copy of the order made by Ouseley J in the Detention Actioncase at [2014] EWHC Admin 2525, made on 25th July 2014.
On 18th August 2014, the Claimant served an application for Judicial Review, in which he sought
i) A quashing order of the removal directions;
ii) A declaration that the DFT process culminating in the dismissal of his asylum appeal was procedurally unfair, and that his subsequent fresh claim could not be dismissed as "clearly unfounded";
iii) A mandatory order requiring the Defendant to take steps to remedy the unfairness, which may include re-interviewing the Claimant, giving him an opportunity to obtain independent medical evidence on his mental state and removing him from the DFT process.
On 19th August at 9.30 am HH Judge Bidder QC sitting in the Upper Tribunal refused permission to apply for judicial review and refused mandatory relief. The Claimant was removed that evening. The Defendant contends that on that date her officers served a letter on the Claimant, dated 18th August 2014, in which a reply was given to the letters of 5th, 7th and 12th August 2014. It rejected the claim for asylum, and did not treat it as a fresh claim. There is a substantial dispute as to whether that letter was served on the Claimant.
On 4th September 2014 the Claimant's solicitor made a renewed application for permission to apply for judicial review. On 5th November 2014 HH Judge Cotter QC granted permission relating to the ground that the Defendant failed to respond to the fresh claim for asylum. He also granted permission to amend the claim to include a new ground relating to the legality of the detention and as a result also transferred the matter to the High Court
On 5 th December 2014 HH Judge Lambert sitting at Bristol granted permission to apply on Ground 2 (the detention ground), refused an application for interim relief, and made orders relating to the filing of evidence. The Defendant was given until 24 th December 2014 to file any detailed grounds of defence or any written evidence, and the Claimant was given until 6 th January 2015 to file any reply or evidence in response. He also ordered disclosure by 24 th December 2014 in answer to the Claimant's requests.
I should point out at this stage that there are several important factual disputes relating to the conduct of officials within SSHD which affect the whole issue of the detention of the Claimant, as well as the service or otherwise of the letter of 18 th August 2014, which in turn affects the legality of the removal on 19 th August 2014. It became increasingly apparent during the hearing before me that the way in which the Claimant's case had been dealt with, and the records kept about it within the Defendant's department, left a great deal to be desired. At times during the hearing one could only feel sympathy for Ms Bayoumi, as instructions she had received were simply not borne out by what appeared in the records.
The consideration of those factual issues means that it has been necessary to deal in detail with the documents produced. I regret that this has required a judgment of greater length than I would wish.
Overview of the respective cases
On behalf of H, Miss Kilroy argues the following
i) The Claimant should not have been dealt with under the DFT process because the use of DFT in his case was unfair and/or inappropriate
a) he was not represented by lawyers at the time of his substantive interview, although it had been agreed that he should be. That occurred because an official of the Defendant decided to interview him without his lawyer, and did not follow the guidance set out in the policy of the SSHD;
b) to the knowledge of the Defendant's officials he suffered from conditions which affected his ability to take part in the interview;
c) the Claimant relied on three documents, which were not translated fully at the interview, and not checked by the official;
d) the decision refusing asylum was affected by the inadequacies of the substantive interview, and relied on assessments of credibility based upon it;
e) the appeal was brought on too quickly to enable the case to be conducted by his lawyers on the basis of adequate instructions;
f) the First Tier Immigration Judge relied on the inadequate substantive interview and the erroneously translated documents;
g) the process suffered from the vices identified in the Detention Action litigation.
ii) As to the letter rejecting the second claim
a) it was never served on the Claimant, and is therefore of no effect;
b) therefore the Claimant had an undetermined claim outstanding when he was removed;
c) his removal was therefore unlawful;
d) In any event, the terms of that letter are infected by the vices of the first letter and of the flaws in the DFT procedure as applied to the Claimant;
e) In any event, service (if it took place) was at the earliest on 19th August 2014, which was on the day of his removal and prevented him having a reasonable opportunity to have access to justice;
iii) So far as the detention of the Claimant is concerned
a) it is for the Defendant to show that she had reasons to detain him and that he was properly informed of them;
b) the original detention was on 24th June 2014 for reasons which could not justify his detention. The reasons later claimed by the Defendant to have been given to the Claimant upon his detention were not given;
c) if he was not properly put into the DFT process, then he was not lawfully detained;
d) it is conceded by the Defendant in the light of the judgment of Beatson LJ in Detention Action (below) that the Claimant's detention from 8th July to 28th July 2014 was unlawful, but the Claimant...
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