The Queen (on the application of Emmanuel Carlos) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 29 April 2021 |
| Neutral Citation | [2021] EWHC 986 (Admin) |
| Date | 29 April 2021 |
| Docket Number | Case No: CO/1008/2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 986 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Duncan Ouseley
sitting as a High Court Judge
Case No: CO/1008/2013
Catherine Meredith (instructed by SUTOVIC AND HARTIGAN) for the Claimant
William Hansen (instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Hearing dates: 2 and 3 February 2021
Approved Judgment
These judicial review proceedings were lodged on 29 January 2013. The substantive hearing concluded on 3 February 2021. For the greater part, the challenge concerned events which had not occurred when the proceedings were lodged. This chain of events merits recounting. CPR Part 54 merits its due application, and immigration control its due enforcement.
The Claimant arrived in the UK in December 2003, aged 25, it was believed. He claimed asylum on arrival; he was granted temporary admission on 19 December 2003, and served with reporting requirements. The claim was refused, and his appeal was dismissed on 27 July 2004. His appeal rights were exhausted by 27 January 2005. Thereafter he had no right to stay in the country. He first failed to comply with his reporting requirements on 9 February 2005. Mr Hansen for the SSHD suggested that this was not coincidental but an attempt to avoid removal.
Mr Emmanuel Carlos (EC) next reported to the SSHD in May 2009, for the purpose of obtaining accommodation, seemingly on the advice of solicitors he consulted because he was now of no fixed abode. A fresh claim appeared to be in the offing. In November 2009, EC was encountered during a search of a factory and found to be working, using a false south African passport; he was arrested and, on 5 November, he was remanded into custody. Mental health problems were mentioned at the police interview. On 10 December 2009, he pleaded guilty to possessing a false identity document; he was sentenced to 8 months imprisonment; the Crown Court recommended his deportation.
On 24 December 2009, EC was served with notice of liability to deportation. Five days later, he submitted further representations which were accepted as amounting to a fresh claim for asylum. He also made a further claim for asylum on 3 February 2010. From 6 March 2010, EC was detained under immigration powers, but remained in the prison for a further month before transfer to an Immigration Removal Centre, IRC. There are records of mental problems, a Detention Centre Rule 35 report of signs of torture, concern about fitness for detention, endeavours to arrange Emergency Travel Documentation, ETD, and arrangements for bail being made with a request from the IRC for the release address to be single and not shared accommodation. EC was released on Chief Immigration Officer, CIO, bail on 26 May 2010, with a twice weekly reporting requirement which he complied with.
An asylum interview was held on 15 March 2011 in connection with the fresh claim. Evidence for the SSHD's consideration was gathered, including GP and other NHS letters, and a 30 March 2011 report from Dr Tarn, a specialist Registrar in Forensic Psychiatry. The further representations were rejected by the SSHD in a decision dated 9 September 2011, followed shortly after by a decision to make a deportation order served with an in-country right of appeal which EC exercised.
On 2 December 2011, the First-tier Tribunal, FtT, dismissed his appeal, taking into account the previous determination of 2004. The 2011 determination contains the only available information about the 2004 determination. An application for permission to appeal was refused by the Upper Tribunal, UT, on 19 December 2011, and on 30 January 2012, EC's appeal rights became exhausted again. The SSHD sought to make arrangements, after the refusal by the UT of permission to appeal, for the issuing by the Angolan authorities of ETD for EC. A Deportation Order was served on 20 April 2012, when EC reported as required. There then followed several months, up to 12 September 2012, when the SSHD tried without success to get EC to attend interviews arranged at the Angolan Embassy for the purposes of arranging for the issue of ETD by Angola.
On 12 September 2012, the SSHD decided that EC should be detained because he had refused to co-operate with the removals process; his detention was then authorised, and EC was actually detained on 21 September 2012. This period of detention lasted until 6 February 2013, (139 days). And it was during this period of detention that these judicial review proceedings were lodged, on 29 January 2013, challenging the lawfulness of a now irrelevant certification of the SSHD's refusal of what she took to be representations against his refusal to revoke the Deportation Order, as well as challenging the lawfulness of this period of detention from its outset, and its continuation.
I shall have to consider the events relating to that period of detention in some detail as it is one aspect of this judicial review, and it is one which I have to decide substantively. The parties are at odds over the significance of the events recorded, both medically and in the endeavours to obtain ETD for EC, and the part he played, characterised by the SSHD as non-co-operation.
At all events, no progress was made in obtaining any ETD, concern was growing about EC's mental health, more on his behalf than from the IRC; he was moved to single accommodation within the IRC, and sought release on bail, requiring single occupancy accommodation. EC applied for bail on 25 January 2013, shortly before these proceedings were lodged, and was granted bail by the FtT on 31 January 2013. It is not possible at this stage to ascertain whether the accommodation address, provided by the SSHD and to which the FtT granted bail, contained single occupancy accommodation, shared or both. At all events, EC was released on 5 February 2013, but found on arrival at the accommodation that he had arrived too late to be allowed in; entry was refused and he was accommodated that night in a care home. This was shared accommodation; he responded by smashing up the room and threatening the housing manager. He was arrested and remanded into custody. On 7 February, he pleaded guilty to causing criminal damage, and was fined £100. The manager of the care home refused to have him back, with the result that he had nowhere to go. He was then re-detained, under immigration powers. It is unclear what happened to the accommodation which he arrived too late to enter. Not everything about the events of those few days can now be ascertained.
At all events, on 7 February 2013, EC was back in immigration detention, and stayed there until released on 4 December 2014, a period of 666 days, the second period of detention, the lawfulness of which it falls to me to determine. EC's application in July 2019 for the detention issues to be transferred to a County Court was successfully resisted by the SSHD. However, the parties agreed before me that any quantum issues should be left in the hope of agreement in the light of this judgment, and any dispute could be transferred.
I shall have to go into further detail of why EC was re-detained on 7 February, and what happened thereafter. At present, it is sufficient to say that the problems with obtaining an interview for and then chasing ETD continued, as did medical concerns about EC and his detention. It appears that there were two attempts by or on behalf of EC to obtain a s4 accommodation address, a necessary precursor to an application to the FtT for bail. But nothing appears to have come of them.
On 25 July 2013, Mrs Justice Swift refused permission to apply for judicial review on the papers. She said:
“The matters advanced on behalf of the claimant in support of his application had been advanced before the FTT which gave a full and detailed judgement in which it found, inter alia, that his evidence was not credible in some important respects, that he had no well-founded fear of persecution, that his PTSD and depression were not caused by torture in Angola as he claimed and that he had family in Angola who could support him. …The mere fact that the same matters are advanced again on the basis that they are true does not mean that the defendant must accept that that is so.”
The application was renewed to an oral hearing. This was adjourned by consent on 6 November 2013, the day before it was due to be heard. EC had prepared further submissions after being seen by Dr Page for psychiatric assessment, and his medical records were being sought for the purpose of further expert evidence. Amended grounds were first served in respect of this second period of detention on 9 December 2013, and further representations were submitted to the SSHD.
At some point, the renewed oral hearing had been fixed for 4 March 2014, and it came on before Haddon-Cave J. Although the decision, refusing these further representations as amounting to a fresh claim, is dated 11 February 2014, it was not served on the Claimant or his solicitors until the morning of this hearing. It was challenged however and was dealt with by the Judge. He refused permission to apply for judicial review on all grounds of claim. There was no formal amendment of the grounds to include that challenge.
An application for permission to appeal was lodged at the Court of Appeal, with a very full skeleton argument. Sir Stanley Burnton refused permission to appeal on the papers on 23 July 2014. He...
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