The Queen (on the application of MD) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Price Lewis |
| Judgment Date | 08 July 2014 |
| Neutral Citation | [2014] EWHC 2249 (Admin) |
| Docket Number | Case No: CO/8155/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 July 2014 |
[2014] EWHC 2249 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(Sitting as a Deputy High Court Judge)
Case No: CO/8155/2012
Ms Stephanie Harrison QC (instructed by Messrs Bhatt Murphy) for the Claimant
Mr Tom Poole (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 8 & 9 April, 20 & 22 May 2014
Mr Price Lewis QC:
Introduction
In these proceedings the Claimant challenges the lawfulness of her detention by the Defendant, the Secretary of State for the Home Department, following her arrival in this country by air from her native Guinea on the 7 th April 2012. She came to join her husband who has refugee status in this country. She seeks a declaration that her detention was unlawful from its outset and in any event by October 2011 and thereafter until her release in September 2012 as a result of a breach of the Defendant's policy and of the Hardial Singh principles. She further contends that there were violations of her rights under Articles 3, 5 and 8 of the European Convention on Human Rights. She seeks damages for false imprisonment and compensation for violation of her rights under the ECHR. She also seeks a declaration that the Defendant's policy relating to the detention of the mentally ill is unlawful and a mandatory order requiring the Defendant to instigate an independent investigation into her treatment during detention.
Permission to bring this claim for judicial review was granted by Robert Jay QC, sitting as a Deputy High Court Judge (as he then was), on the 27 th February 2013. He observed that the case "raises sufficiently serious and complex issues to warrant proceeding to a full hearing."
The Claimant began earlier judicial review proceedings on the 21 st October 2011 against the Defendant's decision to enforce removal directions to return the Claimant to Guinea set for the following day. The basis of that claim was that the Defendant had not considered a medical report addressing the Claimant's mental health. Mr Justice Lindblom refused permission on the papers on the 4 th April 2012 on the basis that the medical report had been considered by then. The Claimant renewed her claim for permission and an oral hearing was listed for the 11 th September 2012. By then further medical evidence addressing the Claimant's mental health was available and on the 11 th September 2012 the Defendant agreed to release the Claimant as soon as practicable and a consent order was made dealing with management of those proceedings. On the 22 nd February 2013 and in the light of further medical evidence the Defendant withdrew her decision of the 7 th April 2011 cancelling the Claimant's entry clearance and leave to enter the UK. Her leave to enter was reinstated until the 19 th March 2014. Since her release on the 13 th September 2012 she has been reunited with her husband and they have had a child born in this country.
This case raises the difficult issue of the detention of those who suffer or begin to suffer mental illness.
The Facts:
The Claimant was born in Conakry, Guinea in West Africa on the 10 th December 1986. She is therefore now 26 and was 24 years old on her arrival in this country on the 7 th April 2011. She did not attend school in Guinea and other than having had some tuition in Arabic scripture she describes herself as not formally educated. Her language is Fula but she does have some French. She spoke almost no English when she arrived in the UK in 2011.
She married Mr Alpha Bah in 2004. She had known him from them living in the same area in Guinea. He had a business in Guinea but he left in 2008 and came to the UK. He claimed asylum on the 2 nd June 2008 because of the political situation in his country. In his claim for asylum he identified his wife by name and gave her correct date of birth. The Immigration Judge who considered his case found him to be a credible witness and held that he had a well-founded fear of persecution in his own country because of his imputed political opinions and so was in need of international protection as a refugee. Mr Bah referred to his wife in his evidence to the Immigration Judge. He was granted refugee status on the 19 th March 2009. He wanted to find a job in the UK and somewhere for him and his wife to live before she came over to join him. He succeeded in those aims and in early 2011 the Claimant applied for a refugee family reunion visa at the British Embassy in Freetown, Sierra Leone. That was her first trip out of her home country. She provided her original passport, birth certificate and marriage certificate to the British Embassy. On the 8 th February 2011 a refugee family reunion visa was issued to the Claimant valid for the same period as her husband's leave to remain in the UK as a refugee, namely until the 19 th March 2014.
The Claimant arrived at Heathrow Airport on the evening of the 7 th April 2011. She presented her Guinean passport containing the UK entry clearance endorsed "Family Reunion" issued at the British High Commission on the 8 th February. She explained to the UK Border Agency ("UKBA") officers that she was in the UK to join her husband whom she named. However, in the UKBA Minute Sheet recording these events it is stated that she was unable to give the date of her marriage or her husband's age. Her passport gave her date of birth accurately as the 10 th December 1986 but she appeared to the officer to be "noticeably younger" and when asked her age she said she was 17 years of age. The officer was not satisfied that the Claimant qualified for admission to the UK and suspended the visa giving her leave to enter.
Mr Bah was at the airport waiting for his wife and he was contacted on his mobile telephone by the UKBA. He explained that he had refugee status in this country and gave his address which was the address shown on the Claimant's entry clearance. He explained that he was waiting for his wife and gave the correct date of their marriage as 2004. He explained that he had been in the UK since 2008 and that that was the last time he had seen his wife. He was told that his wife had said she was 16 or 17 years old and he offered as a possible explanation that his wife was simply confused.
The Claimant was interviewed in French just before midnight. She confirmed her identity and accurately maintained her date of birth as the 10 th December 1986. But she then went on to say she was 16 years old. She said inaccurately that she had married her husband in 2000. The officers then concluded that there was little point in continuing the interview "as she was making little sense." It seems that the officers were able to access a document relating to Mr Bah's asylum claim dated June 2008 in which they were able to see that he had explained that he was married to the Claimant who was named in that document and whose date of birth he had given accurately. That document was put on the file. Her detention then began. A document known as the IS.93 which sets out "Summary and Reasons for Initial Detention" was completed. Those reasons were that she had a genuine passport giving her date of birth as 10 th December 1986 but she had stated she was 16 years old; that she had given her wedding date as 2000 which would make her 5 years old at the time, that there were genuine concerns that she was being trafficked and that she had no suitable or bona fide sponsor in the UK and that she would be detained overnight while the office that deals with human trafficking cases was contacted. Attempts to contact that office were unsuccessful. On the written notice of the reasons for detention given to the Claimant the boxes were ticked which stated: "There is insufficient reliable information to decide whether to grant you temporary admission or release" and "You have failed to give satisfactory or reliable answers to an Immigration Officer's enquiries."
The following morning the Claimant was interviewed again in French with a responsible adult present because she had said she was 16 years old. However, in this interview she again gave her correct date of birth and stated correctly that she was 24 and explained that she had been afraid and panicked when she said earlier she was 16. She wrongly gave her date of marriage at first as 2007 but then corrected the date to 2004. She wrongly stated she had not seen her husband since 2002. This interview was ended because the French interpreter considered that she was not understanding the questions. Mr Bah, who was still waiting for his wife at the airport, was spoken to and he produced his driving licence as evidence of identification. He seems to have lost his temper — swearing and shouting — and said the officers were holding his wife illegally and she was not used to people like them.
The Claimant was interviewed again about lunchtime that day with a Fula interpreter. She gave her correct date of birth and correct date of marriage but said she was 13 when she married. She is recorded as being unable to describe her husband or to say where he lived or what he did but she was able to produce photographs of her wedding.
The officer then reviewed the case and recorded that he was not satisfied that the Claimant was 24 years of age, as claimed and that false representations had been made and material facts not disclosed in order to obtain her visa. He relied on her having said she was 16 years old and had married at 13. He recorded that it...
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