The Queen (on the application of SB (Ghana)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | John Kimbell |
| Judgment Date | 20 March 2020 |
| Neutral Citation | [2020] EWHC 668 (Admin) |
| Docket Number | Case No: CO/1980/2019 |
| Date | 20 March 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 668 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Kimbell QC SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/1980/2019
Althea Radford (instructed by Duncan Lewis Solicitors) for the Claimant
Benjamin Seifert (instructed by the Government Legal Department) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 15 October 2019
Approved Judgment
John Kimbell QC, sitting as a Deputy High Court Judge:
INTRODUCTION
The Claimant (‘ SB’) is a 37 year-old man from Ghana. Following the service of a deportation order on 30 October 2018, he was detained by the First Defendant (‘ SSHD’) under section 2(3) of Schedule 3 to the Immigration Act 1971. The detention lasted from 2 November 2018 until 17 June 2019, a period of 7 months and 15 days.
SB says that his detention was unlawful because the SSHD breached the principles first set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and developed in subsequent case law. He also alleges that the SSHD failed to comply with her own policy on detention in relation to adults at risk. A further pleaded allegation that her conduct breached SB's rights under Article 5 of the European Convention on Human Rights was not pursued.
The SSHD denies that the detention of SB was unlawful at any stage and denies any breach of public law or human rights law.
Permission
SB was granted permission to bring this claim by John Bowers QC, sitting as a Deputy High Court Judge, on 16 July 2019. The claim for damages against the Second Defendant was transferred to the County Court and stayed pending the outcome of the challenge to the legality of SB's detention made in this claim.
Representation and evidence
SB was represented by Althea Radford of counsel. The SSHD was represented by Benjamin Seifert of counsel. Neither party relied on any witness evidence.
A witness statement by SB, dated 18 September 2019, was originally included in the bundle. However, the SSHD disputed the Claimant's right to rely on this evidence because an agreed deadline to make an application to rely on witness evidence had not been met by SB. Ms Radford did not pursue an application for permission to rely on the witness statement.
No attempt was made by the SSHD to adduce witness evidence at any stage. Both parties therefore sought to rely on a mosaic of reports, assessments, interviews and other documentation about SB from a number of sources.
FACTUAL BACKGROUND
SB was born in Ghana in January 1983. He was brought up by his grandmother. In a Home Office interview in 2017 he said that he had lost both his parents in a car crash when he was very young. In an interview a year later with an employee of the National Offender Management Service (‘ NOMS’) he stated that his parents had separated and his mother had died when he was five.
SB worked as an electrician in Ghana and had lived there independently until he came to the UK in 2011. He entered the UK legally on a visitor's visa in March 2011. The visa was valid for six months from 18 March 2011 to 18 September 2011. SB did not leave when his visa expired or apply to renew it. He therefore remained in the country illegally after 18 September 2011.
In his interview with the Home Office in November 2017, SB said that he had submitted an application in 2012 to stay in the UK but “I never heard anything back before my arrest in 2014”. Home Office records showed that SB had indeed submitted an application for an EEA residence card in November 2012. However, far from not hearing about the result of that application, Home Office records showed that SB had been notified that the application had been refused. Following a request to resend the decision letter in November 2013, SB lodged an appeal against the refusal. This appeal was later withdrawn.
In the same Home Office interview in 2017 that I have already referred to, SB stated that he married TT, a Ghanian national living in England, in July 2013. However, in a subsequent interview in 2018, SB referred to her as his girlfriend. When NOMS telephoned TT she told them that she and SB had been “in a relationship for a few months” but that they had not resided together. TT lived in Colchester. SB appears to have lived in Milton Keynes where he worked casually for cash as a car valet and in a warehouse.
TT gave birth to a daughter on 27 October 2014. TT and SB both state that SB is the child's father.
Conviction
In April 2015, SB was convicted on two counts of rape in the Aylesbury Crown Court. The offence was committed on 3 August 2014 in Milton Keynes.
In an Offender Assessment System (‘ OASYS’) report dated 28 September 2018, SB's offence is described as follows:
“Victim, who was a stranger to [SB], was raped while walking home alone at 1 a.m. after a night out. She was intoxicated. [SB] who was walking in the opposite direction after leaving a party, attempted to engage her in conversation. [SB] suggested they could have sex. When the victim refused, he followed her and touched her inappropriately “all over”. When she told him to “fuck off” [SB] bent her over a car bonnet, pulled down her tights and knickers and raped her first anally then vaginally. He did not use a condom”
The offence was described in similar terms by the trial judge in his sentencing remarks:
“On Saturday 2 nd of August last year [XX] who was eighteen years old, went out with her friends in Milton Keynes…At about one o'clock on the Sunday morning, you met [XX] as she walked home from her night out and you were making your way to a club in Milton Keynes with other males from the party. The rest of the group were polite and exchanged greetings with that young woman and they walked on. You did not. At first you appeared to help her by picking up items that she had dropped. However, it quickly became apparent that you were not going to leave her until you got what you wanted. A sound recording, retrieved from nearby closed-circuit television camera, capture at first her pleading with you to be left alone, but then her pleas became increasingly desperate …
Ultimately, your victim was raped by you, first anally and then vaginally as you pinned her down over a car and you held your hand over her mouth to stifle her screams. You continued to rape her until you were challenged by two passers-by who bravely intervened and disturbed you. You ran away and you were chased by those two men, but when they stopped you, you talked your way of the situation and they allowed you to go”
The judge went to describe how SB had put forward a defence that the victim had consented to sex. This led to the victim having to relive the whole experience again in court.
The Judge noted that SB had suggested to the Probation Service that the victim had had consensual sex with him before being raped by another man and noted that the Probation Service had concluded that SB posed a high risk of harm to adult females and a high risk of sexual offending.
TT was six months pregnant at the time of the offence.
Sentence
SB was sentenced to 8 years' imprisonment in June 2015.
Correspondence on deportation
On 15 September 2016, SB wrote to the SSHD about the threat of deportation. He claimed in that letter that there were people in Ghana who threatened his life. He repeated this in another letter sent on 23 December 2016.
No response from the SSHD to either of the above letters appeared in the hearing bundle.
On 30 January 2017, the SSHD sent SB a decision letter informing him that she intended to deport him. The letter gave him 20 days to respond.
On 3 February 2017, SB signed a disclaimer form stating that “I am aware that I have an opportunity to lodge representations against my deportation but I wish nevertheless to leave the United Kingdom without doing so”. SB's signature was witnessed by a prison officer.
SB followed up the disclaimer form with a handwritten letter dated 6 February. In this letter he wrote: “I have receive my deportation order which say I should sign and go back to Ghana. I have sign it and now I want to know when I am going”. He continued: “I want to know my date because I was set up with a drug gang before I came here and now there are a lot of people who want to kill me because of this rape allegation”.
SB obtained legal advice at this time. Solicitors acting for SB sent a letter to the SSHD dated 9 February 2017 which said: “We are instructed by our client to notify you that he has considered his position in the UK and, due to a change in his family circumstances, he has agreed to cooperate with the deportation process and return to Ghana. He therefore does not intend to challenge deportation.”
In a letter sent just under two weeks later, SB again referred to being set up by a criminal gang to come to the UK. However, the letter ends by referring to the fact that SB has signed deportation papers and is “getting deported”.
A change of position on deportation
In a letter dated 11 March 2017, SB changed his position. In this letter he says in terms that he doesn't want to be deported and asks for a second chance. Further letters followed in a similar vein.
Formal notice of an asylum claim
On 7 July 2017, the same solicitors who had previously written to the SSHD sought an interview for SB in order that he might set out all the facts relied upon in support of his asylum claim. Their letter refers to two threats. First, a threat arising from the fact that SB's rape conviction may become known in Ghana and, secondly, from...
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