“The following are normally considered suitable for detention in only very exceptional circumstances… ● those where there is independent evidence that they have been tortured…” ● those where there is independent evidence that they have been tortured…”
“24. The scarring report provided independent evidence that the claimant bore scars in nine areas, two of which she attributed to childhood injury. Of the remaining seven, the first was adjudged by Ms Kralj to be “highly consistent” with the explanation provided to her by the claimant of how she came by it. But it could have been caused by ‘any superficial burn with a solid instrument.’ The balance of the scars were consistent with having been intentionally inflicted by other people. It is clear, not only from the scarring report but also from the narrative part of Ms Kralj’s assessment report, that she believed the claimant, taking everything she said at face value. She was unaware of the history since the claimant’s arrival in this country including a judicial determination that she was not truthful in her accounts. Whether the scars were or were not the result of torture could only be judged by reference to the claimant’s account of what had occurred. Ms Kralj’s scarring report provided independent evidence that the claimant has the nine scars identified. It was independent evidence that seven of them were consistent with deliberately inflicted injury. But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant’s account how they were caused… 27. The letter refusing to defer removal made it plain that the UK Border Agency considered the fresh representations, coming so shortly after the failure of a differently expressed challenge, to be a try-on. By the time the letter of 4 November was written and the decision was taken to maintain detention and oppose bail the Secretary of State’s considered view of the new representations was clear. On any view it was appropriate to maintain detention whilst the representations were being considered. Even if there were any evidential basis upon which the claimant could show that she was either mentally ill or there was independent evidence of torture, paragraph 55.16 of the Instructions and Guidance is not in absolute terms but contemplates detention being maintained in very exceptional circumstances. The immediate background to the receipt of these representations provided ample material to support detention very exceptionally pending a decision to apply for judicial review.”
“3. The claimant is Angolan. She arrived in the United Kingdom in May 2007 on a visitor’s visa which ha[d] been issued on 2 January. On1 June 2007 she applied for asylum which was refused on30 June 2007 . On the same day a decision was made to remove the claimant to Angola as an illegal entrant. She exercised her right of appeal to the Asylum and Immigration Tribunal (“AIT”). Although the claimant had the benefit of legal representation before the appeal hearing she appeared in person before the Immigration Judge on27 September 2007 . Her appeal was rejected in a determination dated2 October 2007 . She claimed asylum on the basis that she would be persecuted as a result of her membership of the youth wing of the Front for the Liberation of the Cabinda Enclave. She claimed to have been arrested in December 2006, to have been beaten and sexually assaulted. The immigration judge did not believe the claimant and concluded: “…37. I believe none of the Appellant’s evidence; I find that she is an Angolan national who can be returned to Angola where nobody would have any adverse interest in her. She has no credibility whatsoever. I have taken into accountsection 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 . She has given evidence to both the Home Office and to myself which was designed or likely to conceal information or mislead. She has not answered questions honestly that had been put to her both in relation to her interview with the Home Office and when giving her testimony before me.” 4. The claimant sought a reconsideration of her appeal. The Senior Immigration Judge refused the application, as did Lloyd Jones J. 5. On11 April 2008 the Secretary of State detained the claimant pending removal. She remained in detention until released on bail on13 November 2008 . On7 May 2008 solicitors acting for the claimant made representations which they suggested amounted to a fresh claim for asylum. Nothing new was advanced in support of the claim. In particular it was not suggested that the claimant had been tortured or was mentally ill. The Secretary of State rejected those submissions on10 July 2008 . A fortnight later the claimant lodged a claim for judicial review of that decision. Permission to apply was refused on paper by Goldring J on7 August 2008 . He considered the claim to be totally without merit and described it as ‘hopeless’. The application was renewed orally but refused on22 September 2008 . In the meantime the claimant had made two unsuccessful applications for bail. On 11 August Immigration Judge Khan refused bail in these terms: “…I am satisfied that there is a materially greater than normal risk of her absconding because of her previous failure to report. Furthermore, no sureties have been offered and despite the applicant having NASS accommodation, there would appear to be little incentive for her to comply with bail conditions. The risk of absconding is too high for bail to be granted.” 6. Nothing had changed when the next application was heard on1 September 2009 , save that a surety had been found who was not thought satisfactory by the Judge. Additionally, the Immigration Judge considered the recent refusal of permission to apply for judicial review a significant factor i[n] evaluating the risk of absconding. On28 September 2008 the Secretary of State set removal directions for 13 October.” “…37. I believe none of the Appellant’s evidence; I find that she is an Angolan national who can be returned to Angola where nobody would have any adverse interest in her. She has no credibility whatsoever. I have taken into accountsection 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 . She has given evidence to both the Home Office and to myself which was designed or likely to conceal information or mislead. She has not answered questions honestly that had been put to her both in relation to her interview with the Home Office and when giving her testimony before me.” “…I am satisfied that there is a materially greater than normal risk of her absconding because of her previous failure to report. Furthermore, no sureties have been offered and despite the applicant having NASS accommodation, there would appear to be little incentive for her to comply with bail conditions. The risk of absconding is too high for bail to be granted.”
“7…Those representations were rejected as not amounting to a fresh claim on 4 November. That rejection was followed by further representations contained in a letter dated 7 November which enclosed a statement from the claimant herself and Mr Bridgland’s report. By letter dated13 February 2009 those representations were not accepted as amounting to a fresh asylum claim. Further material was sent to the Secretary of State on6 March 2009 comprising a report from the Medical Foundation for the Care of Victims of Torture, a report from Dr Arnold, a wound and scar specialist and further material from Mr Matuno. As a result of considering that new material the Secretary of State concluded that there was a fresh claim for asylum, but rejected it. In the result, a fresh right of appeal to the AIT was generated, which for reasons which are not material to this claim, has not yet been heard.”
“55.5 Factors influencing a decision to detain… 1. There is a presumption in favour of temporary admission or temporary release. 2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 3. All reasonable alternatives to detention must be considered before detention is authorised. 4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified… 5. Each case must be considered on its individual merits. The following factors must be taken into account when considering the need for initial or continued detention: For detention: [A number of factors were here illustrated in bullet-points, such as the likelihood of removal, a history of absconding, previous failure to comply with conditions of bail, a determined attempt to breach immigration law such as clandestine entry, etc.] Against detention: … ● Has the subject a history of torture? … 55.10 Persons considered unsuitable for detention Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated IS accommodation or elsewhere… The following are normally considered suitable for detention in only very exceptional circumstances… ● those suffering from serious medical conditions or the mentally ill; ● those where there is independent evidence that they have been tortured…”
“[AM] is a grossly traumatized young woman who has never received support or therapeutic intervention to assist her in the aftermath of her immense trauma and multiple bereavements. She is a very private person who does not like to express her emotions in the company of others and lives with feelings of deep and intense shame and self disgust. She is prone towards understatement and tends to require great encouragement to speak in a freely associative manner. However, once she begins to speak the content of her thoughts and feelings are intrinsically linked to her trauma. [AM] has experienced profound alterations in her sense of personal identity and her ability to make sense of the world within her system of faith. This has led to a deeply shaken sense of herself within the world. [AM] is in a very fragile mental state and a deterioration would, without a doubt, require formal psychiatric intervention. However, due to her feelings of shame and stigmatization, coupled with a fear of authority figures, I find it highly unlikely (a near certainty) that [AM] would not avail herself to the services of professionals independently. This suspicion is supported by her inability to access therapeutic services in the UK, even during times when [AM] felt that she was actually losing her mind. She tends to isolate herself socially – which is known to be a poor prognostic marker for a number of mental health complaints but has specifically been found to be a poor prognostic marker following rape (Little & Breltkopf (2006)). [AM] certainly meets the criteria for treatment at the Helen Bamber Foundation and should such an opportunity arise, I will certainly offer [AM] long term therapeutic support and psychiatric assessment.”
“(i) Scarring A: Old burn injuries on the arm which were ‘highly consistent’ with the account given by [AM] but could have been caused by a superficial burn with any solid instrument. (ii) Scarring B: [AM] had no recollection of how this faint 0.5 cm scar on her right wrist was caused. It could have been caused by a shard of glass or small blade, and could have been self-inflicted or inflicted by another. (iii) Scarring C: A large scar on the right thigh the cause of which, beyond being the result of torture, [AM] could not recollect. It was consistent with being caused by a blade or shard of glass. The failure to recollect how this injury occurred was not remarkable given [AM’s] ‘dissociation’. (iv) Scarring E: Two faint areas of scarring on the left shin. [AM] said it was inflicted during her incarceration but could not remember when or how. It could have been caused by a blade, a nail or a sharp piece of wood. (v) Scarring G: A small scar on the left foot caused when a soldier pressed a burning fork on the skin. ‘The injury would have been superficial and could have been caused by another burning object not pressed hard against the skin. However, there is no reason to disbelieve the account given by [AM].’ (vi) Scarring H: A small scar on the left foot consistent with a puncture injury with evidence of infection. The claimant accounted for this injury as being caused by a piece of glass being thrown onto her foot. (vii) Scarring I: The worst of the scars, measuring 7cm x 1 cm on the inner left thigh. It was described by the claimant as being the result of a laceration inflicted by a razor blade which was not sutured until she escaped from custody. There was some infection. Ms Kralj explained that only a very sharp and hard object could have caused this injury.”
“Nevertheless despite those adverse findings of credibility your client’s case has again been reviewed in light of the medical assessment and scar report. However, it is noted that contrary to your assertion that the new objective evidence supports your client’s account, it is noted that the scars referred to in the report are slight and mainly restricted to the legs and there is no clear evidence that the scarring was obviously the result of torture or detention… Furthermore in considering your client’s failure to recall how many of the scars are caused it is contended that if your client had been detained and tortured as claimed, then the precise circumstances of these events would have been so searing as to have engraved themselves including the date and period of detention upon your client’s memory, the fact that your client was unable to recall the exact date and length of her detention coupled with her failure to recall the details of her alleged torture has further damaged her credibility…In the circumstances the medical assessment takes your client’s case no further. …In the circumstances it is considered that the timing and circumstances of these late submissions, when taken together with the serious doubts about your client’s credibility are just another attempt in a long series of attempts to frustrate your client’s removal to Angola… …Moreover, it should be pointed out the Home Office Country Information Policy Unit has the benefit of a wide range of sources which includes information provided by the United States Department, the UNHCR, Amnesty International, the Refugee Council and the Foreign Commonwealth Office. Therefore the situation in Angola is constantly monitored, and in view of the lack of independent corroborative evidence in your client’s case there is no reason to believe that your client would suffer persecution from the Angolan authorities. Therefore in the absence of any independent countervailing evidence from a reliable source it is not accepted that your client has experienced any difficulties in Angola…”
“But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant’s account how they were caused”
“The immediate background to the receipt of these representations provided ample material to support detention very exceptionally pending a decision on permission to apply for judicial review”