YH (China) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Andrew Henshaw |
| Judgment Date | 01 February 2018 |
| Neutral Citation | [2018] EWHC 92 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1671/2017 |
| Date | 01 February 2018 |
[2018] EWHC 92 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Henshaw QC
(sitting as a Judge of the High Court)
Case No: CO/1671/2017
The Queen on the Application of
Christopher Jacobs (instructed by Duncan Lewis) for the Claimant
Benjamin Tankel (instructed by Government Legal Department) for the Defendant
Hearing date: 16 November 2017
Judgment Approved
Mr Andrew Henshaw QC:
| (A) INTRODUCTION | 2 |
| (B) FACTS | 2 |
| (C) APPLICABLE PRINCIPLES | 17 |
| (1) General position and public law error | 17 |
| (2) The Hardial Singh principles | 21 |
| (3) The Defendant's Adults at Risk policy | 32 |
| (D) OUTLINE OF THE PARTIES' CASES | 37 |
| (E) ANALYSIS | 40 |
| (1) Overall approach | 40 |
| (2) Detention up to the Rule 35 report | 42 |
| (a) Timescale for dealing with asylum application | 43 |
| (b) Merits of asylum claim and prospective certification | 45 |
| (c) Risk of absconsion | 52 |
| (d) Risk of reoffending | 53 |
| (e) Other factors | 55 |
| (f) Overall view on pre Rule 35 report detention | 55 |
| (3) Detention after the Rule 35 report | 57 |
| (4) Commencement date of detention | 61 |
| (5) Detention from 5 to 21 April 2017 | 62 |
| (F) CONCLUSIONS | 63 |
(A) INTRODUCTION
The Claimant applies for judicial review of her detention pursuant to the Defendant's powers under the Immigration Acts between 1 January 2017 and 21 April 2017. The Claimant seeks a declaration and damages for unlawful detention, in respect of either the whole period, the period from 1 March 2017 onwards, or various alternative periods of time.
Permission to apply for judicial review was granted by Helen Mountfield QC, sitting as a High Court Judge, on 19 May 2017. The substantive hearing of the Claimant's application took place on 16 November 2017, and the Defendant filed supplemental information on 28 November 2017.
The parties have agreed that this judgment should deal only with matters of liability, with any issues of quantum deferred for later disposal if not agreed.
(B) FACTS
The Claimant is a citizen of China, born on 19 November 1983. On 21 September 2013 she entered the UK with leave to enter on a Tier 4 student visa valid until 30 January 2015. On 16 January 2015, the Claimant applied for further leave to remain (“ LTR”) as a Tier 4 student, and was granted LTR until 18 February 2016.
On 4 November 2015 the Claimant submitted an application for LTR as a Tier 2 migrant. That application was refused on 15 December 2015 with a right of administrative review which the Claimant exercised. By a decision dated 25 January 2016 the Defendant maintained the refusal of the Claimant's LTR application. The Claimant's LTR accordingly expired on 18 February 2016.
Following a pre-action protocol letter dated 22 February 2016, the Claimant issued an application in the Upper Tribunal on 8 March 2016 seeking judicial review of the Defendant's refusal of her LTR application.
After two initial instances of possible failure to report to immigration authorities (considered later in this judgment), the Defendant's records indicate that the Claimant consistently reported fortnightly from 17 March 2016 until her incarceration on 22 September 2016.
On 1 April 2016, the Claimant was arrested on suspicion of fraud. She was bailed. There is no evidence of any failure to comply with bail conditions.
The Upper Tribunal refused the Claimant's application for permission to apply for judicial review on 18 April 2016.
On 14 June 2016, the Claimant claimed asylum and an asylum screening interview was carried out.
On 22 September 2016, the Claimant pleaded guilty at Southwark Crown Court and was sentenced to either 22 weeks' or 30 weeks' imprisonment 1 for six offences of making false representations to make gain for herself or another or to cause loss to another/expose another to risk, and one offence of facilitating the acquisition/acquiring/possessing of criminal property. She was imprisoned at HMP Peterborough.
On 6 October 2016 the Claimant was offered a facilitated voluntary return.
On 30 December 2016 the Claimant was given notice in form IS.91R of reasons for detention. The notice stated that “ Detention is only used when there is no reasonable alternative available”, but that the Claimant was being detained for the (sole) reason that “ You are likely to abscond if given temporary admission or release”. The box stating “Your removal from the United Kingdom is imminent” was not ticked.
The form indicated that the decision to detain on the ground of risk of absconsion was based on the factors that the Claimant (i) had previously failed to comply with conditions of her stay, temporary admission or release; (ii) had used or attempted to use deception in a way that led the Defendant to consider that she may continue to deceive; (iii) had not produced satisfactory evidence of her identity, nationality or lawful basis to be in the UK; and (iv) had previously failed or refused to leave the UK when required to do so.
Accordingly at the end of the custodial part of her sentence, the Claimant was detained pursuant to the Defendant's powers under the Immigration Acts. She initially remained in detention at HMP Peterborough.
The Claimant's substantive asylum interview was held on 4 January 2017.
On 5 January 2017 (“ the first 5 January review”) reviewing officer A Rajan filled in a Detention Review form which was not, however, completed by an authorising officer. The form included the following entries:
“3. Current barriers to removal (excluding documentation)
Sub's asylum claim is an outstanding barrier to removal.
…
5. Assessment of removability.
High – The subject's screening and AIR interviews have been conducted and an ACD referral will be made imminently. Under a service level agreement, a decision will be made in writing within 14 days. If the subject's claim cannot be certified under section 94 it is likely to be certified under section 96
6. Previous immigration compliance and non compliance
Sub was on reporting conditions and they complied with those conditions.
7. Assessment of risk of harm to the public
Low – PNC Trace – subject was convicted and sentenced to 30 weeks imprisonment for 6 offences of ‘Make false representations to make gain for self or another or cause loss to other/expose other to risk” and 1 offence of Facilitate the acquisition/acquire/possess criminal property; Harm Assessment: B
8. Known or claimed medical conditions (including mental health and/or self-harm issues and any reference to a Rule 35 report)
The subject has diabetes mellitus type 2, insulin is not required and it is controlled by medication.
…
10. Any other compassionate circumstances (including children issues and ties to the UK)
The subject has no close ties in the United Kingdom.
…
12. Previous applications for bail or temporary release
Sub complied with their previous reporting.
…
14. Recommendation (whether to maintain detention or release, supported by reasons)
This is a CC non criteria case, sub was convicted and sentenced. Sub's asylum claim can be concluded within a reasonable timeframe. Sub's valid passport is available to HO. Detention remains appropriate pending outcome of asylum/removal.”
A further Detention Review form was completed by Mr R Robinson on 5 January and completed by an authorising officer on 6 January 2017 (“the second 5 January review”). The form stated inter alia:
“The subject is an overstayer, she has demonstrated a disregard to the law, and presents a high risk of recidivism and is unlikely to adhere to reporting conditions.
The subject's screening and AIR interviews have been concluded and an ACD referral will be made imminently. Under a service level agreement a decision will be made in writing within 14 days. If the subject's claim cannot be certified under section 94 it is likely to be certified under section 96.
The subject's valid passport is held by the police and arrangements are being made to have it sent to CCNC.
The subject has diabetes mellitus type 2, insulin is not required and it is controlled by medication. The subject does not fall within the protected categories of risk, as defined in ‘Adults at Risk’ policy. … there is no evidence that the subject is vulnerable or that detention is likely to lead to a risk of significant harm or detriment to the individual. …
The subject has no known family or close ties in the UK and there are no compassionate circumstances.
There is no evidence that the subject is an adult at risk and if the subject's asylum claim is refused, removal can be effected within a reasonable period of time. …”
The authorising officer stated:
“Subject is an overstayer who has claimed asylum. Her asylum claim is actively being progressed as her asylum interviews have been completed and her asylum case is now going to be referred to ACD. Under a service level agreement a decision will be made within 14 days of referral. If the asylum claim is refused and certified her removal can be effected within a reasonable timescale as she has no close ties, she is not deemed an adult at risk and her passport is held by the police and arrangements are currently being made for this to be sent in. She is a deceptive immigration offender who has a high risk of absconding and it is deemed necessary that her detention is maintained whilst her asylum claim is continued to be progressed.”
The Defendant has in its detailed grounds provided further explanation of the reference to a decision being made within 14 days pursuant to a “service level agreement”:
i) it refers to a decision being made in relation to the asylum element of the claim. That is...
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