SS, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 3595 (Admin)

Case No CO/1058/2015[2015] EWHC 3595 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/12/2015
Before
Ms ALEXANDRA MARKSSitting as a Deputy Judge of the High Court
Between
R (on the application of SS, by his Litigation Friend, The Official Solicitor)ClaimantSecretary of State for The Home DepartmentDefendant
Mr Ranjiv Khubber (instructed by Coram Children’s Legal Centre) for ClaimantMs Sarah Wilkinson (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 20 & 21 October 2015
JudgmentMs Alexandra Marks:INTRODUCTION
[1]The claimant challenges the defendant’s decisions to: i) refuse the claimant’s fresh claim submissions (“fresh claim”); ii) detain the claimant (“unlawful detention”); and iii) remove the claimant before notifying him of her decision on his fresh claim submissions (“removal decision prior to fresh claim decision”).[2]The claimant succeeds in his fresh claim challenge insofar as it comprises submission of the report by Mr Sellwood about the claimant’s learning disabilities. However, the claimant fails to establish unlawful detention, and also fails in his challenge to the defendant’s removal decision prior to fresh claim decision.

THE FACTS

[3]The claimant is a national of Afghanistan. He entered the UK clandestinely in the back of lorry in November 2009, and claimed asylum on 25 November 2009. He claimed to be 15 years old but, as his age was disputed, Croydon Social Services carried out an age assessment on 14 January 2010. As a result of that age assessment, the claimant was attributed a date of birth of 1 January 1994.[4]Following an asylum interview on 15 February 2010, the claimant’s asylum claim was rejected on 16 April 2010. However, because he was an unaccompanied minor, he was granted discretionary leave to remain in the UK until 1 July 2011 (by which time he would be 17½ years old).[5]The claimant’s in-time application on 1 June 2011 for extension of his leave to remain was refused on 29 August 2013 (over two years later). The claimant appealed to the First Tier Tribunal (Immigration & Asylum Chamber) (“FTT”) and his appeal was heard on 25 November 2013. The FTT’s decision dismissing the appeal was promulgated on 2 December 2013.[6]The claimant’s application for permission to appeal to the Upper Tribunal was refused on 12 February 2014 so he was considered to have exhausted his appeal rights on 14 February 2014.[7]The basis of the claimant’s asylum claim was that he feared persecution both from the Afghan national authorities, and the Taliban, because of his actual or imputed political opinion. The claimant said his brother was a member of the Afghan national army, and that the family was targeted because of this.[8]In March 2014, the claimant first instructed his current solicitors. His solicitor, Ms JS, found it difficult to take instructions, even through an experienced Pashtu interpreter. The interpreter confirmed that it was difficult to communicate with the claimant, and that he could do so only at a very basic level, using simplistic language. JS therefore considered it necessary to obtain evidence as to whether the claimant suffered from a learning difficulty.[9]It took considerable time to obtain the necessary funding for an educational psychologist’s report, but this was eventually secured, and JS instructed Mr Robert Sellwood. On 9 June 2014, Mr Sellwood produced his report (“the Sellwood report”). Mr Sellwood’s conclusion was that, based on various test results, the claimant’s index score indicated that he was on the borderline of moderate to severe learning difficulties.[10]In light of this, JS considered necessary a further report – from a country expert – to opine about the risks to the claimant were he to return to Kabul, as proposed by the defendant.[11]On the basis that any fresh claim by the claimant should comprise all documentary evidence put forward for consideration, JS sought the country expert’s opinion before submitting to the defendant the Sellwood report. Again, delays in obtaining funding – as well as difficulties identifying a suitable expert (Mr Tim Foxley MBE) – meant the country report (“the Foxley report”) was not available until 9 February 2015.[12]By coincidence, the very same day (9 February 2015), the defendant made a decision to remove the claimant from the UK under s.10 Immigration & Asylum Act 1999, and the claimant was immediately detained. In the letter from the Claimant’s solicitors dated and sent later that day on 9 February 2015, where submissions asserting a fresh claim were made (on the basis of both the Sellwood report about the claimant’s learning difficulties, and the Foxley report about the current situation in Afghanistan), it was also submitted that it was inappropriate to detain the claimant in the light of, inter alia, the Sellwood report.[13]On 18 February 2015, the defendant set removal directions for the claimant’s removal by a charter flight to Afghanistan on 10 March 2015.[14]On 20 February 2015, the claimant’s solicitors wrote to the defendant, objecting to the claimant’s detention, the setting of removal directions and the failure to consider his fresh claim submissions.[15]The claimant’s solicitors wrote again to the defendant on 23 February 2015 but having received no reply to any of their letters, on 4 March 2015 issued these proceedings. They included a request for urgent interim relief in view of the claimant’s vulnerability, and removal directions having been set for 10 March 2015.[16]On 4 March 2015, by order of Mr Justice Holroyde, the defendant was ordered to release the claimant from immigration detention, and was restrained from removing him from the jurisdiction pending determination of his application for permission for judicial review.[17]On 5 March 2015, the defendant released the claimant from detention. On the same date, the defendant responded to the claimant’s fresh claim. The defendant’s response (“the decision letter’) set out the defendant’s reasons for rejecting the claimant’s submissions as a fresh claim.[18]On 10 March 2015, the claimant lodged additional grounds, challenging the decision letter.[19]On 27 April 2015, HHJ Walden (sitting as a Deputy High Court Judge) granted permission for judicial review on all grounds.[20]The defendant filed detailed grounds of defence on 15 June 2015. LEGAL FRAMEWORK Fresh claims

LEGAL FRAMEWORK

[21]Paragraph 353 of the Immigration Rules provides:
‘When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: i. had not already been considered; and ii. taken together with previously considered material, creates a realistic prospect of success, notwithstanding its rejection.’ i. had not already been considered; and ii. taken together with previously considered material, creates a realistic prospect of success, notwithstanding its rejection.’
[22]Paragraph 353A of the Immigration Rules provides:
‘Consideration of further submissions shall be subject to the procedures set out these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.’
[23]The defendant’s Asylum Policy Instruction: Further Submissions (version 7 May 2014, in force when the decision letter was written) provides: ‘4.1 Consider whether to grant any form of leave In all cases where further submissions are received, caseworkers must first decide whether or not to grant leave for asylum or human rights reasons, including family or private life under the Immigration Rules or on the basis of exceptional circumstances. Caseworkers must consider whether the new evidence submitted taken together with the old material (including any appeal determination, previous statements, interviews etc) and any other change of circumstances, for example more recent country information or case law, should result in a grant of leave. The starting point must always be the findings in any final appeal determination which override conclusions in the original decision letter.” 4.2 Consider whether there is a fresh claim? Caseworkers only need to decide if further submissions amount to a fresh claim on asylum or human rights grounds when they have already considered the additional evidence and decided to refuse outright without granting any leave. In such cases, caseworkers must decide whether the further submissions amount to a fresh claim. The claimant will only be entitled to an in-country right of appeal if it is accepted that there is a fresh claim. Paragraph 353 states that submissions will amount to a fresh claim if they are significantly different from material that has already been considered. Submissions will only be significantly different if the content:• has not already been considered• taken together with previously considered material, creates a realistic prospect of success on asylum or human rights grounds, including claims under Family or Private Life Rules (Article 8 European Convention on Human Rights (“ECHR”)) Caseworkers must consider the further submissions against this ‘two part test’.4.2.1 The first test: has the material already been considered? If the new material, in whatever form it takes, has previously been considered by the Home Office or by an Immigration Judge at appeal, there is no fresh claim and the first test required in paragraph 353 is not met. In such cases, it is not necessary to consider whether the material creates a realistic prospect of success (the second test) and the further submissions can be rejected without a right of appeal. Caseworkers can write a brief letter referring to previous correspondence which must make clear that the further submissions are not recognised as a valid fresh asylum or human rights claim.4.2.2 The second test: does the material create a realistic prospect of success? If the new material has not previously been considered, caseworkers must assess whether this new material, taken together with material previously considered, creates a realistic prospect of success. The question is whether the points being made are at least arguable and could lead an Immigration Judge to take a different view. Caseworkers cannot conclude there is no realistic prospect of success just because the claimant’s previous account was found to lack credibility. A claimant may have been untruthful in the past but be telling the truth now. An assessment of credibility must be based on all the evidence available, taking into account the findings at appeal. Material must never be discounted entirely on the basis it could or should have disclosed earlier. However, caseworkers should challenge late disclosure especially if there is no reason why it could not have been raised sooner. This is of particular relevance to submissions raised at the point of removal. See the Asylum Instruction, ‘Assessing Credibility and refugee status’.• has not already been considered• taken together with previously considered material, creates a realistic prospect of success on asylum or human rights grounds, including claims under Family or Private Life Rules (Article 8 European Convention on Human Rights (“ECHR”))[24]Whether further submissions constitute a fresh claim on asylum or human rights grounds is a matter for the Secretary of State. A decision as to whether a fresh claim arises can only be challenged by way of judicial review on Wednesbury unreasonableness grounds: see R v. Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768, 785D.[25]In R (on the application of WM (DRC)) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 the Court of Appeal considered the task of the Secretary of State when considering further submissions and the task of the court when reviewing a decision of the Secretary of State that further submissions do not amount to a fresh claim. The question for the Secretary of State is whether there is a realistic prospect of success were the further submissions placed before an immigration judge.[26]In AK (Afghanistan) v. Secretary of State for the Home Department [2007] EWCA Civ 535, Toulson LJ said (at paragraph 23):
“Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material.”
[27]Buxton LJ in WM (at paragraph 10) said that in answering the question whether an independent tribunal might realistically come down in favour of the claimant, the Secretary of State must be informed by anxious scrutiny of the material. In other words, he must give proper weight to the issues and consider the evidence in the round.[28]In relation to the task of the court, again Buxton LJ in WM (at paragraph 9) confirmed that the decision remains that of the Secretary of State and her determination is only capable of being impugned on Wednesbury grounds (irrationality). He stated, at paragraph 11, that when reviewing a decision of the Secretary of State, the Court will ask two questions:
“First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return… Secondly, in addressing that question…has the Secretary of State satisfied the requirement of anxious scrutiny?”
[29]The general approach to fresh claims was further considered in the House of Lords decision in ZT (Kosovo) v. Secretary of State for the Home Department [2009] UKHL, 1 WLR 348. Their Lordships considered the similarity between asylum claims that are certified as “clearly unfounded” under s.94 Nationality, Immigration and Asylum Act 2002 and fresh claims that are considered under paragraph 353 of the Immigration Rules. Lord Phillips held that the test was the same. He stated (at paragraph 20):
‘In short, I consider that the Secretary of State should… in all cases, treat a claim as having a realistic prospect of success unless it is clearly unfounded.’

Unlawful detention

[30]The defendant’s powers to detain those liable to administrative removal is set out in paragraph 16(2) of Schedule 2 of the Immigration Act 1971 (as applied by s.10(7) of the Immigration and Asylum Act 1999):
‘If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8-10 or 12-14, that person may be detained under the authority of an immigration officer pending (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.’
[31]Important principles concerning the use of powers to detain someone for immigration purposes were set out by Mr Justice Woolf (as he then was) in the case of R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 704.[32]In R (Walumba Lumba & Kadian Mighty) v Secretary of State for the Home Department [2012] 1 AC 245, the Supreme Court endorsed the Hardial Singh principles as previously explained in R(I) v SSHD [2003] INLR 196 (see Lord Dyson at paragraph 22): i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.[33]In that same case (Lumba, at paragraph 103), Lord Dyson also considered the concept of “a reasonable period” as follows:
“A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.”
[34]At paragraph 104, Lord Dyson set out the factors which he held to be relevant (subject to the caveat that it is not possible to produce an exhaustive list): i) the length of the period of detention; ii) the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; iii) the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; iv) the conditions in which the detained person is being kept; v) the effect of detention on him and his family; vi) the risk that if he is released from detention he will abscond; and vii) the danger that, if released, he will commit criminal offences.[35]The question of whether or not an individual’s detention is lawful by reference to the Hardial Singh principles is for the court and on an application for judicial review, the court is not limited to an examination of whether the defendant’s decision was rational (R(A) v. Secretary of State for the Home Department [2007] EWCA Civ 804).[36]The relevant parts of the defendant’s policy “Enforcement Instructions and Guidance, Chapter 55: Detention and Temporary Release” (EIG)provides: 55.1.1. General The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used. … To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy. 55.1.3. Use of detention Detention must be used sparingly, and for the shortest period necessary. 55.3 Decision to detain (excluding criminal casework cases) 1. There is a presumption in favour of temporary admission or temporary release - 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. 2. All reasonable alternatives to detention must be considered before detention is authorised. 3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved. 55.3.1. Factors influencing a decision to detain All relevant factors must be taken into account when considering the need for initial or continued detention, including: - What is the likelihood of the person being removed and, if so, after what timescale? - Is there any evidence of previous absconding? - Is there any evidence of a previous failure to comply with conditions of temporary release or bail? - Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry). - Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave). - What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment? - What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14) - Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)? - Is the subject under 18? - Does the subject have a history of torture? - Does the subject have a history of physical or mental ill health? Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified. 55.8. Detention reviews Initial detention must be authorised by a CIO/HEO or inspector/SEO (but see section 55.5). In all cases of persons detained solely under Immigration Act powers, continued detention must as a minimum be reviewed at the points specified in the appropriate table below. At each review, robust and formally documented consideration should be given to the removability of the detainee. Furthermore, robust and formally documented consideration should be given to all other information relevant to decision to detain. Monthly reviews should be conducted using the detention review template (ICD3469 or criminal casework equivalent). Additional reviews may also be necessary on an ad hoc basis, for example, where there is a change in circumstances relevant to the reasons for detention… Table 1, below, sets out the minimum requirements in respect of the specific stages and levels at which reviews must be conducted. Table 1: Review of detention (non-criminal casework/non –third country unit (TCU) cases) Review Period Review Authorised by 1. 24 hours Inspector/SEO 2. 7 days CIO/HEO 3. 14 days Inspector/SEO 4. 1st monthly Inspector/SEO 5. 2nd monthly Inspector/SEO 55.10 Persons considered unsuitable for detention Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. - ... - The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: - … - Those suffering from serious medical conditions which cannot be satisfactorily managed within detention. - Those suffering from serious mental illness which cannot be satisfactorily managed within detention…. - People with serious disabilities which cannot be satisfactorily managed within detention. - … - What is the likelihood of the person being removed and, if so, after what timescale? - Is there any evidence of previous absconding? - Is there any evidence of a previous failure to comply with conditions of temporary release or bail? - Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry). - Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave). - What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment? - What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14) - Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)? - Is the subject under 18? - Does the subject have a history of torture? - Does the subject have a history of physical or mental ill health? - ... - The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: - … - Those suffering from serious medical conditions which cannot be satisfactorily managed within detention. - Those suffering from serious mental illness which cannot be satisfactorily managed within detention…. - People with serious disabilities which cannot be satisfactorily managed within detention. - …[37]Article 5(1) ECHR “Everyone has the right to liberty and security of person” No one shall be deprived of his liberty save in the circumstances specified in Article 5(1) (a)-(f) and in accordance with a procedure prescribed by law. Article 5(1) (f) states that a person may be arrested or detained to prevent his effecting an unauthorised entry into the country, or where action is being taken against them with a view to deportation or extradition.[38]Qualification Directive Article 15(c) so far as material states:
“Serious harm consists of: … (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
SUBMISSIONS AND DISCUSSION Fresh claim

SUBMISSIONS AND DISCUSSION

[39]Mr Khubber submits that the defendant’s decision letter makes material misdirections on the facts; gives undue weight to certain evidence; fails to give adequate regard to the purpose and relevance of the evidence provided; and that rejection of the claimant’s fresh claim representations is irrational. Moreover, he submits that the decision-maker failed properly to apply the test for fresh claims established by WM.[40]In response, Ms Wilkinson resists all these allegations. She submits that the decision-maker correctly stated the test for fresh claims before conducting a careful evaluation exercise, “…comparing the Sellwood report with the findings of Dr. Mackay…” (whose report had been considered by the FTT).

Dr Mackay’s report

[41]On 10 November 2013, Dr. Mackay (a consultant psychiatrist) had carried out a mental health assessment of the claimant. The FTT noted his conclusions that the claimant “…does suffer from memory problems and may have mental health issues…[and] has day-to-day forgetfulness…”. The FTT’s decision recorded that “…the [claimant’s] account fulfils criteria for PTSD (post-traumatic stress disorder). However, there are features in the assessment that Dr Mackay reports are consistent with exaggeration. His analysis refers to certain traumatic issues and other facts which are recorded elsewhere in them [sic] memory and would be unaffected by PTSD…”

The Sellwood report

[42]By contrast, the Sellwood report was commissioned several months after the FTT hearing, due to subsequent concerns raised about the claimant’s cognitive abilities. The Sellwood report concludes that the claimant’s “Perceptual Reasoning Index score of 50 is well below the cut-off score of 70 usually used to indicate learning difficulties or disabilities…[and falls] in the Extremely Low range…only found in less than 0.1% of the population i.e. over 99.9% of adults of his age obtain higher scores.” Mr Sellwood acknowledged the limitations of the assessment he had been able to conduct of the claimant: for instance, lack of time meant no account was taken of the claimant’s adaptive and social functioning. Mr Sellwood also identified limitations of certain of the tests he had used to assess the claimant: for instance, due to cultural influences. However, Mr Sellwood stated that he considered that the claimant was not “deliberately minimising his responses to create a false impression of learning difficulties.”

The decision-maker’s approach

[43]The decision letter stated, “…the Secretary of State is to give anxious scrutiny to the question of whether further submissions created a realistic prospect of success before an Immigration Judge.” In my judgment, the decision-maker therefore correctly stated the correct test for fresh claims.[44]However, I accept Mr Khubber’s submission that, despite correctly setting out the test to be applied to the claimant’s further submissions, the decision-maker’s reasoning was flawed because she misapprehended the nature of the Sellwood report. The decision-maker stated that she considered that the claimant “…is not vulnerable as claimed and that the assessment by Doctor Mackay for [the claimant] is more reliable than that of Mr Sellwood…”. This statement fails to recognise that Dr Mackay is a consultant psychiatrist, who was assessing the claimant’s mental health(and consequent vulnerability)whilst Mr Sellwood, a chartered educational psychologist, was instructed to assess the claimant’s cognitive skills, any learning difficulties and cognitive problems.[45]Nor was the statement in the decision letter an isolated error by the decision-maker: her entry dated 3 March 2015 on the Home Office Minute Sheet also demonstrated misapprehension of Dr Mackay’s and Mr Sellwood’s reports. On the Minute Sheet, she recorded her findings on the claimant’s further submissions, including the statement that “…the previous psychologist noted that [the claimant] was prone to exaggeration…”. In fact there was no “previous psychologist”: Dr Mackay is a consultant psychiatrist, and did not note that the claimant was prone to exaggeration: he actually wrote that features of his assessment of the claimant were “…consistent with exaggeration…”.

Evidence considered by the First Tier Tribunal of the claimant’s mental condition

[46]The FTT had taken account of evidence of the claimant’s “…age…and his claimed ignorance, PTSD, possible mental illness and lack of education…”. However, the FTT had no evidence before it of the claimant’s cognitive problems because those issues had not by the date of the FTT hearing been identified.[47]Nor was the FTT able to assess the extent to which those factors which it had identified (such as the claimant’s PTSD, possible mental illness, illiteracy etc.), especially when combined with the inevitable difficulties which arise from translation, masked the claimant’s cognitive problems in understanding the proceedings, the questions asked of him and even the events he described having experienced in Afghanistan.[48]Further, a key plank of the FTT’s reasoning for rejecting the claimant’s appeal was that inconsistencies in the claimant’s account undermined his credibility so as “…to render his whole account not credible…”. Again, the FTT acknowledged the claimant’s “…memory problems do cause him difficulties…[and] that he is still a vulnerable person…”, yet the FTT had no material before it to enable it to consider the extent (if any) to which the claimant’s cognitive problems may have merited special support for him during the hearing and prior interviews, or impacted on his consistency and therefore assessment of his overall credibility.

The Foxley report

[49]As for the Foxley report, its conclusions were that the claimant would “very likely be exposed to a variety of grave risks if returned to Afghanistan…with next to no support for him as a vulnerable young person in Kabul (let alone the rest of the country)… [H]e will face similar risks and harsh circumstances wherever he were to relocate to in Afghanistan…[and] these conditions would be likely to cause him extreme difficulties in coping.”[50]Mr Khubber submits that, in light of these conclusions, the claimant would be at serious risk of persecution or other harm in Afghanistan and that the level of violence there has now increased to the extent that he would be entitled to protection under the Refugee Convention, the European Convention on Human Rights, or the Qualification Directive.[51]Ms Wilkinson responds that, when considering (in accordance with Article 15(c) Qualification Directive) whether the level of indiscriminate violence in Afghanistan is such that it would be a breach of the claimant’s human rights to return him there, the putative Immigration Judge would have to consider as sources of information the Immigration and Asylum Chamber Practice Direction on Starred and Country Guidance Determinations for decisions on or after 13 November 2014; the most recent country guidance cases on Afghanistan; recent case law from the European Court of Human Rights; Home Office’s Operational Guidance Note on Afghanistan, February 2015; and Country of Origin Information Report dated 15 February 2013 (reissued 8 May 2013).[52]It is clear from the FTT’s determination and reasons dated 27 November 2013 that the FTT carefully considered not only background material and case law (including the most recent country guidance case on Afghanistan) to which it was referred, but also took into account the claimant’s PTSD and possible mental condition, forgetfulness, lack of education and that he is a vulnerable young person who could be potentially easily abused.

Findings on fresh claim

[53]Against this background, in my judgment, the decision-maker was entitled to conclude that the contents of the Foxley report were not significantly different from material that had already been considered by the FTT nor detailed enough to supplant it, and thus that part of the claimant’s further submissions failed to amount to a fresh claim.[54]However, the decision-maker considered the Sellwood report solely from the perspective of the claimant’s vulnerability, and compared it with Dr Mackay’s report. She equated Mr Sellwood’s findings about the claimant’s learning difficulties with the conclusions of Dr Mackay about the claimant’s mental health. In my judgment, the decision-maker failed to appreciate the differing expertise of a consultant psychiatrist and an educational psychologist. She failed to identify that the Sellwood report, comprising an educational psychologist’s findings about the claimant’s cognitive impairment, was significantly different from material previously considered by the FTT, including Dr Mackay’s report. The decision-maker therefore failed properly to address her mind to the question whether the points being made by the claimant as a result of the Sellwood report were at least arguable. In short, she failed properly to apply “anxious scrutiny” to the claimant’s further submission when considering whether it created a realistic prospect of success before an immigration judge. This failure, in my judgment,renders the decision letter irrational and Wednesbury unreasonable. To that extent, the claimant’s challenge to the defendant’s fresh claim decision succeeds.

Unlawful Detention

[55]Mr Khubber argues that the claimant’s detention was unlawful because fresh claim representations had been made; no adequate notification had been given of the basis for detention; there was a failure to consider adequate alternatives to detention; and the claimant was clearly unsuitable for detention because of his vulnerability. He submits that the claimant’s detention on 9 February 2015 (and thereafter) was therefore unlawful under public law principles, Hardial Singh principles and Article 5 ECHR.[56]Mr Khubber also reminds the court that the Immigration Act 1971 (and Immigration and Asylum Act 1999) create a discretionary power of detention pending a removal directions decision, that the EIG stresses the presumption of liberty and that detention must be used sparingly. The EIG states that all relevant factors must be taken into account when considering or maintaining detention: for example, if the risks of absconding, criminal offending and harm are low, these militate against detention.[57]Mr Khubber points out that Lumba (at paragraphs 120H-121C) says that when considering whether a period of detention has become unreasonable “…much more weight should be given …when the detained person is pursuing a meritorious appeal than…a hopeless one.”[58]Mr Khubber submits that none of the above factors were properly and promptly assessed in the claimant’s case: for example little weight was given to the assessment at the claimant’s 7 day detention review that his risk of absconding and harm to the public was low, nor that further submissions had been made since he was first detained. Instead, Mr Khubber submits, a “box-ticking” approach was applied to each of the claimant’s detention reviews, without proper consideration of all the necessary factors. The fact that the claimant’s total period of detention was only 24 days does not, Mr Khubber argues, excuse a single day of it if that deprivation of liberty was not properly justified.[59]Mr Khubber reminds the court that R(A) is authority for the proposition that the court is not limited to an examination of whether the defendant’s decision to detain was rational: it is for the court to decide whether the detention was lawful or not.[60]Ms Wilkinson challenges each of Mr Khubber’s arguments. Taking each in turn:

Power to detain pending consideration of further submissions

[61]Ms Wilkinson submits it is wrong to suggest that there is no power to detain pending consideration of further submissions. In any case, here the claimant’s detention began a few hours beforeany further submissions were made. Once the claimant’s further submissions had been received, Ms Wilkinson accepts they created an “obstacle” to his removal whilst consideration of them was pending. However, she says that such obstacle would be overcome if the defendant, after proper consideration and on lawful grounds, rejected those further submissions. It was for that reason, Ms Wilkinson says, that throughout the period of the claimant’s detention, there was active case management of consideration of the further submissions with close attention being paid to progress.[62]Ms Wilkinson says that despite the outstanding further submissions acting as a bar to actual removal, at all times during the claimant’s detention there remained a realistic prospect of his removal within a reasonable period, even though it was not possible to specify or predict the date with absolute certainty when that removal could be made. Indeed, since the only “obstacle” to the claimant’s removal was the defendant’s decision on the claimant’s further submissions, the “working premise” was that a decision would be made by a date which could (if adverse to the claimant) enable him to be removed on the charter flight on 10 March 2015. Of course, if the defendant’s decision on further submissions were favourable to the claimant, he would immediately be released.[63]I accept Ms Wilkinson’s submissions and the analogy which she draws between the claimant’s case and the case of R (oao Thavarajah) v. SSHD [2015] EWHC 208 (Admin), which involved a pre-assessment appointment as a victim of torture. There it was held that it would not be realistic to argue that detention became unlawful the minute that the letter alerting the defendant to the pre-assessment appointment landed on an official’s desk, or even the minute it had been read. There was no complaint in the Thavarajah case, nor in this claimant’s case, that the defendant delayed in making the decision on further submissions. In this case, the claimant’s further submissions in this case were dated 9 February 2015 and the decision letter dated 5 March 2015, 24 days later. The claimant was in fact released – albeit by order of the court – on the very day that the (unfavourable) decision on his further submissions was made.[64]I do not accept Mr Khubber’s argument that the claimant’s making of further submissions created such an obstacle in the path to the claimant’s removal that this - even if combined with the low risk of the claimant absconding, low risk of harm to the public and other factors in his favour – was sufficient to render the claimant’s continued detention unlawful.[65]The “obstacle” of the claimant’s further submissions required a decision of the defendant, but she was in control of the timing of this. The evidence shows that the defendant took steps with diligence, speed and effectiveness to surmount that obstacle by promptly considering the claimant’s further submissions. Her intention was to make a decision on further submissions before the effective date of the removal directions.[66]Indeed, the evidence before the court shows the defendant’s clear expectation that – should the claimant’s further submissions be rejected as a fresh claim – the claimant would be removed on the charter flight to Kabul on 10 March 2015 in accordance with the removal directions made on 18 February 2015.[67]I conclude that the claimant’s detention was not rendered unlawful merely because further submissions had been made. It must be lawful to allow the defendant reasonable opportunity to consider further submissions before making a decision whether or not to release an individual from detention. To find otherwise would provide a perverse incentive for lawfully detained detainees to make further submissions, no matter how spurious, just to secure their immediate release from detention.

Inadequate notification of the basis for detention

[68]The claimant alleges that he was not given adequate notification of the basis for his detention. However, Ms Wilkinson points out that during these proceedings, both the claimant and the court have been provided with copies of the requisite paperwork - Form IS.91R (reasons for detention) and Form IS.98 (bail rights). She says that these documents are recorded as having been given to the claimant at the point he was detained, and are marked as having been explained to him in English and Pashtu. She submits that there is no suggestion of any bad faith on the part of the defendant, so the veracity of that paperwork has not been challenged.[69]Mr Khubber says that bad faith is not required in order to prefer the claimant’s evidence that he did not receive this documentation when he was detained, nor at that time was he given a proper explanation of his rights in his own language.[70]However, I accept Ms Wilkinson’s submission that the claimant’s allegations are unsupported by the evidence before the court. Despite the claimant’s instructions to his solicitors that he had not received adequate notification of the basis for his detention or explanation of his rights, I find the basis of this head of claim factually unsound. This ground must therefore fail.

Consideration of alternatives to detention

[71]Ms Wilkinson says that, contrary to Mr Khubber’s submission, alternatives to detention were considered at each of the claimant’s detention reviews: Chapter 55 of the Home Office’s published detention policy was considered, and any information relevant to the detention decision taken into account and recorded on the claimant’s detention review record. Ms Wilkinson submits that throughout the claimant’s detention, there was a high likelihood of the claimant being removed.[72]It seems to me that, as far as the defendant was concerned, the claimant had entered the UK clandestinely many years previously; had unlawfully overstayed following expiry of his discretionary leave to remain and for nearly a year after his appeal rights were exhausted, thus breaching immigration rules; he had not submitted any fresh claim during that time; he had no close relatives in the UK; and when first detained, he was found at an address other than his usual residence.[73]The combination of these factors – which were kept under review in accordance with the EIG, including consideration of alternatives to detention – remained the same throughout the claimant’s detention with the exception of his further submissions which I have already considered. Unbeknownst to the claimant during his detention, the defendant was urgently considering his further submissions.[74]As I have already explained, in light of all the other factors which the defendant was entitled to take into account when considering alternatives to the claimant’s detention, I do not regard his making of further submissions as sufficient to render his detention pending removal, which was expected to be imminent, as anything other than reasonable and thus lawful. I find that there is no substance in this ground of challenge.

Claimant’s unsuitability for detention

[75]The claimant’s challenge to his suitability for detention is based on his vulnerability as found by the FTT Immigration Judge at his appeal in 2013, and more particularly on the conclusions of the Sellwood report. In particular, reliance is placed on Mr Sellwood’s assessment of the claimant’s mental age as equivalent to that of a young person under 18 years old. Ms Wilkinson submits that the Sellwood report was tentative in his remarks about “mental age equivalents” noting concerns with them and that they are no longer supplied by the Wechsler Adult Intelligence Scale that Mr Sellwood used to evaluate the claimant’s cognitive skills. Much less, Ms Wilkinson says, did Mr Sellwood suggest that the claimant’s “mental age” meant that he should have been treated as a person under the age of 18 when he was in fact 21 years old.[76]Ms Wilkinson further says that the claimant did not fall into any of the categories set out in paragraph 55.10 of the Enforcement Instructions and Guidance (EIG) as one of those who should only be detained in very exceptional circumstances. Even if, contrary to the defendant’s belief, the claimant was a person “with serious disabilities”, the claimant has not established that his condition (namely his learning difficulties) could not be “satisfactorily managed in detention”. Evidence from the claimant’s detention reviews indicates that his suitability for detention was considered at each review.[77]I agree with Ms Wilkinson’s submissions: there is no evidence or authority for the proposition that an adult with learning difficulties should, in the context of detention, be treated as a person under 18 due to his “mental age equivalent”. Moreover, I note that the Sellwood report - which identified for the first time the claimant’s learning disability - was submitted on the very same date as the claimant’s detention. As indicated above, it would be unrealistic to expect the defendant to read, analyse and act instantly upon the contents of that report. It therefore seems reasonable to allow the defendant opportunity to consider expert evidence about the claimant’s learning disability and assess whether, on the basis of that evidence, the claimant was unsuitable for detention in accordance with the EIG. In fact, by the time the defendant had made her assessment of the Sellwood report – which Mr Khubber concedes was made more swiftly than might usually be expected – the claimant had already been released.[78]On the evidence before me, I find there is no basis for concluding that the defendant failed properly to apply the provisions of the EIG nor otherwise acted unlawfully when considering whether the claimant’s vulnerability made him unsuitable for detention.

Power to detain pending decision on removal directions

[79]As I have already mentioned, Ms Wilkinson points out that, seen through the eyes of the defendant, when the claimant was first detained he had been unlawfully overstaying in the UK for nearly a year, there were no existing barriers to his removal and no further submissions had been received.[80]The claimant’s detention on 9 February 2015 was therefore, Ms Wilkinson says, lawful under public law principles and Hardial Singh principles: the claimant was detained pending a decision whether or not to give removal directions because there were reasonable grounds for suspecting that the claimant was someone in respect of whom removal directions might be given. Nor was that decision “uncertain and speculative”: as the 24 hour detention review shows, the claimant was considered maybe suitable for the next charter flight to Afghanistan on 10 March 2015, with removal directions to be authorised nearer that date.[81]In my judgment it is clear that – at the point of the claimant’s detention – the defendant intended to remove the claimant from the UK and was entitled to use the power to detain for that purpose. In my view, at no time during the claimant’s detention, did it become apparent that the defendant would not be able to effect the claimant’s removal within a reasonable period.[82]In my view, the defendant acted with reasonable diligence and expedition to effect removal. She not only identified within 24 hours of the claimant’s detention a flight by which he might be suitable for removal, but also within 10 days of the claimant’s detention made removal directions for the claimant via that very charter flight to Kabul on 10 March 2015, some 20 days later.[83]I conclude that at no time during the claimant’s detention from 9 February till 5 March 2015 was the claimant’s detention in breach of statute, Article 5 ECHR, public law principles, the principles laid down in Hardial Singh, and the defendant’s own policy set out in EIG. On the contrary, despite the claimant’s vulnerability (albeit the full extent of such vulnerability was not known by the defendant at the point of detention, and was later challenged by the defendant on a basis which I have already described as flawed), in my view the claimant’s detention was for reasons, and for a period, that were reasonable in all the circumstances.

Removal decision prior to fresh claim decision

[84]Mr Khubber submits that it was unlawful for the defendant not to respond to the claimant’s further submissions, and to decide to issue removal directions prior to any decision on the fresh claim. He says that the defendant’s issue of removal directions was plainly contrary to the claimant’s rights under paragraph 353A of the Immigration Rules. This states that an applicant who has made further submissions shall not be removed before the defendant has considered those submissions.[85]Ms Wilkinson responds that there is no right under paragraph 353A or otherwise for a person not to be made subject to removal directions pending consideration of his further submissions. There was no question, Ms Wilkinson says, of the claimant being removed before a decision was made on his further submissions (which would plainly have been unlawful under paragraph 353A). But there was nothing unlawful about setting – and keeping in place – removal directions pending a decision on the claimant’s further submissions. Ms Wilkinson argues there is an analogy with the Thavarajah case where it was held lawful for removal directions to remain in place during detention whilst the claimant underwent a medical assessment.[86]It seems to me that Ms Wilkinson is right: whilst paragraph 353A says that an applicant who has made further submissions shall not be removedbefore the Secretary of State has considered any further submissions, it says nothing to prohibit steps preparatory to removal, such as setting removal directions. Nor do I see any justifiable objection to the defendant being able to set, and retain, removal directions pending a decision on further submissions. As long as the decision on further submissions is made before the removal directions take effect, the directions can either be cancelled if the decision is favourable to the claimant, or put into effect if the decision is adverse to him. And if the further submissions decision has not been made by the date for removal under the directions, again the directions can (and surely would have to) be cancelled – because it would clearly be unlawful to remove the claimant in such circumstances.[87]To my mind, to hold otherwise - that merely making further submissions, no matter how spurious, must result in the immediate cancellation of any removal directions (or prevent any being made) – would open the door to manipulation by claimants desperate to avoid or defer removal. I reject this ground of the claimant’s challenge.

RELIEF

[88]Having found in favour of the claimant on the fresh claim decision as regards the Sellwood report (albeit not on any other grounds), I grant an order quashing the defendant’s decision letter dated 5 March 2015.