Gathurah (aka Ramadhan Mohamed) v The Secretary of State for the Home Department [2016] EWHC 2090 (Admin)

Case No CO/5281/2014[2016] EWHC 2090 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 August 2016
Before
MR ROBIN PURCHAS QCSitting as a Deputy High Court Judge
Between
JESSE CHRISTOPHER GATHURAHClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Justine Fisher (instructed by Duncan Lewis Solicitors) for ClaimantAndrew Bird (instructed by GLD) for DefendantHearing Hearing dates: 14 July 2016
JudgmentMR ROBIN PURCHAS QC :Introduction
[1]The Claimant seeks judicial review of decisions made by the Defendant as to his detention and immigration status and of his removal on 14th November 2014. In granting permission on the renewal hearing on 19th May 2015 John Howell QC sitting as a deputy judge of the High Court limited permission to judicial review of the following:a. The decisions on 12th July and 13th September 2014 to continue to detain the claimant;b. The decision on 14th November 2014 declining to entertain a fresh claim made by letter dated 11th November 2014; andc. The removal of the claimant on 14th November 2014.[2]The deputy judge also gave directions that the present hearing should be to determine the legality of those matters and whether no more than nominal damages are payable by the Defendant in respect of any detention found to be unlawful and in respect of the Claimant’s removal from the UK.[3]Mr Andrew Bird, who appears for the Defendant, accepts that the decisions made on 11th July 2014 and 13th September 2014 were unlawful in that they were based on an error of fact in stating that the body map showed that the Claimant did not have physical scarring when the body map for each report indicated scarring to the Claimant’s right shin. However the Defendant contends that in any event she could and would have lawfully detained the Claimant so that the damages on that account should be nominal.[4]Mr Bird also accepts that the Claimant’s removal from the UK on 14th November 2014 was in breach of an order made earlier that afternoon by Knowles J. That was through an error of communication between the Defendant and the escorting personnel. The Claimant was stopped in transit at Nairobi and returned to this country early on 16th November 2014.[5]In argument an issue arose as to whether the fact that the removal of the Claimant was in breach of the court order in itself made the removal of the Clamant unlawful and, if so, whether the Claimant was entitled to damages for his removal on that account. With the agreement of the parties I directed that the parties should make written submissions on this issue following the close of the hearing. This they have done and I have considered the written submissions which have been made in coming to my decision.

Background

[6]The Claimant, who was born on 18th February 1975, maintains that he is a national of Somalia. However he has been found by the First Tier Tribunal (FTT) and by the Defendant to be Tanzanian.[7]The evidence of nationality included that:a. He entered the UK in 1998 to study using a Tanzanian passport. His application was made from Dar es Salaam in his name Jesse Christopher Gathurah. The application form gave his nationality as Tanzanian;b. There was a subsequent letter from the Claimant to the Defendant dated 4th October 2000 apologising for delay in obtaining his passport because his father was being transferred from Kenya to Belgium;c. On 28th September 2001 the London College of Business and Computing gave a certificate that the Claimant was a full time student at the college with the course terminating on 30th June 2002; the certificate also recorded that the Claimant had a Tanzanian passport;d. On 27th August 2003 the Reading Registry Office issued a certificate that the Claimant had married Elda Malewo at the registry office on 18th October 2002, giving his address in Reading and his father as Christopher Gathurah; ande. On 1st August 2003 the Claimant obtained a renewed Tanzanian passport for five years, giving his place of birth as Dar es Salaam and his permanent address in Slough.[8]He had extensions of leave to remain in the UK to study until 2002 when leave was refused. In 2003 he was granted leave to remain as a dependent of his wife until October 2005. Extension of leave was refused in March 2006. On 24th March 2008 they had a son Sean. The Claimant has provided a birth certificate which records the father as Jesse Christopher Gathurah with a place of birth in Tanzania.[9]On 5th January 2009 the Claimant applied as a Somali national for asylum under the name Ramadhan Ali Mohamed. He was given temporary admission as a person liable to be detained. The asylum claim was refused on 28th August 2010. He appealed. He did not attend the hearing but he did submit an appeal statement for the hearing. The appeal was dismissed on 26th October 2010. The First Tier Tribunal decision set out the Claimant’s case for seeking asylum, including that his father had died in 1997, that his village in Somalia had been attacked by Darood militia and that he and his family had been severely beaten. The Claimant had escaped to Kenya where he had found employment. He had travelled on a false identity to Heathrow arriving on 11th December 2008 and claimed asylum in January 2009.[10]The account was challenged by the Defendant, including reliance on the documents set out above. The Defendant also relied on the Claimant’s lack of familiarity with the Somalian currency and his inability to identify on a map where he said he had lived. Moreover the Claimant’s finger prints were the same as those of the person with the Claimant’s name who entered the country in 1998 as set out above. The Defendant had obtained a Sprakab language analysis on the Claimant, which confirmed that the Swahili spoken by the Claimant was from Tanzania and not Somalia and that he had a deficient knowledge of Somalia.[11]In his decision the immigration judge in fact concluded that, because direct fingerprint or other evidence of identity had not been produced as part of the Defendant’s case, he was not satisfied that the Claimant was the same person as the person who had entered the country under the Claimant’s name in 1998. But he placed weight on the Sprakab report together with the Claimant’s lack of familiarity with Somalian currency and his inability when he was interviewed to indicate the location of his claimed home in Somalia. On that basis the judge rejected the Claimant’s account and found that he was a Tanzanian national. He also rejected the Claimant’s account of persecution in Somalia and concluded that he could be safely returned to Tanzania.[12]There was no appeal against that decision. The Claimant then disappeared until he was arrested and detained on 20th April 2014. Directions were given for his removal to Tanzania. The Claimant appealed on article 8 grounds on 28th April 2014. A claim for humanitarian protection was also made on 30th April 2014. On 29th May 2014 the humanitarian claim was rejected by the Defendant, who concluded that it did not constitute a fresh claim. That has not been challenged. At the hearing of the Claimant’s appeal against the removal directions on 2nd June 2014 the Claimant appeared in person. He claimed that he was Ramadhan Mohammed and was a citizen of Somalia. By his decision dated 12th June 2014 the immigration judge dismissed the appeal. The decision summarised the Claimant’s case, including that he had no family in the UK and that his family in Somalia had all been killed. The Claimant admitted illegal entry to the UK in 1998 pretending to be a Tanzanian citizen. The judge concluded that he had no reason to depart from the previous decision of the FTT in 2010. He was not persuaded that the Claimant had a son in the UK or that there was any evidence of a family life in that respect. He concluded that the Claimant was probably from Tanzania. The Claimant applied for permission to appeal to the Upper Tribunal but that was refused on 18th July 2014.[13]On 10th July 2014 the Claimant submitted a rule 35 report that the examining doctor had concerns that the Claimant may have been the victim of torture. The report set out the account by the Claimant including that he had been imprisoned and beaten with the butt of a gun and had wires inserted into his leg in Somalia. The report included a body map showing an area on the right lower leg with scars. The doctor expressed his view that ‘I believe we can support his needs…’.[14]The Defendant responded to the rule 35 report by letter dated 11th July 2014. The letter referred to the immigration history including the latest FTT decision. In paragraphs 3 and 8 it summarised the rule 35 report including the statement that ‘the body map indicates that you have no physical scars’, which, as I have said, is accepted to have been a mistake. The letter referred to the 2010 FTT decision and continued at paragraph 11:
“Your rule 35 report is simply a reiteration of your asylum claim which has been rejected by an independent Immigration Judge as lacking credibility without offering any further evidence to substantiate it, is considered not to constitute independent evidence of torture. The rule 35 report does not contain any further information which indicates that your ongoing detention is not appropriate. There are no compelling reasons that might be regarded as providing a strong incentive for you to adhere to any restrictions that might be imposed if released, particularly given your previous record of absconding. Indeed (had) you not been encountered by … Immigration officers/police there is no reason to believe that you would ever have re-established contact with the Home Office or have returned voluntarily to your own country. It is therefore considered that you present a high risk of absconding. You came to light with suspicion of possession of firearm for which no further (action) by police but caution for assault, working illegally and overstayer. Consequently your report does not make any findings as to why you cannot remain in detention. Therefore you have no lawful basis to remain in the UK, detention continues to be considered appropriate pending your removal.”
The letter went on to reject the rule 35 report as a fresh claim. The Claimant therefore continued to be detained pending his removal.[15]On 11th September 2014 a further rule 35 report was submitted to the Defendant that the doctor had concerns that the Claimant may have been victim of torture. The report set out the Claimant’s account of torture in Somalia and showed on the body map ‘rifle scars’ on his right leg and where wire was passed into the veins. The report noted that the Claimant suffered from PTSD and was receiving treatment in Brook House.[16]The Defendant responded in a letter dated 13th September 2014. That included a summary of the report but made the same error in asserting that the body map showed no physical scarring. The letter noted that the Claimant was receiving support from healthcare staff while in detention. For similar reasons to those in the letter dated 11th July 2014 the decision was confirmed to retain the Claimant in detention pending his removal and the report was rejected as a fresh claim.[17]On 5th November 2014 the Defendant gave directions for the Claimant’s removal to Tanzania on 14th November 2014. On 11th November 2014 the Claimant’s solicitors sent a pre-action protocol letter (PAP), which maintained that the Claimant was Somalian. The letter enclosed a report from a Dr Steen, which concluded that the scarring was highly consistent with the Claimant’s account of torture and also that he was unfit to fly or to be detained. The letter enclosed other documents, including a copy Somalian birth certificate for the Claimant, which had been previously submitted to the Defendant as part of the representations made on 30th April 2014. I refer to this letter in more detail later in this judgement. It asked that the new matters be treated as a fresh claim and that the removal directions be cancelled and the Claimant released.[18]The Defendant responded to the PAP letter on 14th November 2014, rejecting it as a fresh claim and refusing to cancel the removal directions or release the Claimant. Again I refer to this letter in greater detail later in this judgement.[19]The Claimant issued proceedings for judicial review on 14th November 2014, including an application for an interim injunction preventing the Claimant’s removal. That was granted by Knowles J the same afternoon and served on the Defendant, who acknowledged its receipt at 16.33 hours. In fact, as a result of a breakdown in communications between the Defendant and the escort personnel, the Claimant was removed that evening on a flight to Tanzania. He was restrained by a body belt during the removal. His removal was intercepted at Nairobi and he was returned to this country early on 16th November 2014, following which he continued to be detained.[20]He was then found to have pain in his right chest, which proved to be the result of a haematoma, which continued to be treated for some time afterwards. In a medical report dated 1st April 2015 it was concluded that the haematoma was likely to have been caused by the restraining belt during his removal in November 2014.[21]The Claimant was granted bail on 20th January 2015.

Legal Framework

[22]The Immigration Act 1971 (the 1971 Act) Sched 2, part 1, para 16(2) provides the power to detain a person if there are reasonable grounds for suspecting he is someone in respect of whom removal directions may be given pending a decision whether to give directions and removal.

(I) v SSHD 2002 EWCA Civ 888 at para 46:

‘(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 that reasonable period, he should not seek to exercise the power of detention. The Secretary of State should act with reasonable diligence and expedition to effect removal.’
At paragraph 48 Dyson LJ added:
“It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to para 2(3) of Sch 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles that stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that if released he will commit criminal offences.”
[23]In R (Lumba) v SSHD 2012 1 AC 245 the Supreme Court confirmed that the burden is on the Defendant to prove that the detention is lawful and not on the Claimant to prove that it is unlawful. Further it held that in a case of unlawful detention if it was shown that, if the power to detain had been lawfully exercised and that it was inevitable in accordance with correct principles that the Claimant would have been detained, the Claimant would have suffered no loss and therefore be entitled to no more than nominal damages (per Lord Dyson para 95).[24]In R (OM) v SSHD 2011 EWCA Civ 909 the Court of Appeal considered whether it was necessary to show that it was ‘inevitable’ that the person unlawfully detained would have been lawfully detained (to which Lord Dyson had referred in Lumba) or whether it was sufficient to show that that would have been the likely result, applying the balance of probabilities. The Court held that the question should be determined on normal compensatory principles on the balance of probabilities (see the judgement of Richards LJ at paras 22 and 23).[25]The House of Lords also made clear in Lumba that the fact that the delay in removal is due to the Claimant taking proceedings by way of appeal to the FTT or judicial review can be relevant to the reasonableness of the continuing period of detention and that there is no exclusionary rule that it cannot be taken into account. Lord Dyson summarised the position at para 121. “To summarise, I would reject the exclusionary rule. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed Mr Husain does not go so far as to submit that there is any automatic rule regardless of the risks of absconding and/or reoffending which would compel an appellant’s release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and reoffending are always of paramount importance since if a person absconds he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that in determining whether a period of detention has become unreasonable in all the circumstances much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”[26]The overall principles were comprehensively summarised by Beatson LJ at in R (DAS) v SSHD 2014 1WLR 3538 at paras 13-15.[27]By para 353 of the Immigration Rules submissions will amount to a fresh claim if they are significantly different from the material that had been previously considered, which will only be the case if the submissions have not already been considered and taken together with the previously considered material they create a realistic prospect of success on appeal to the FTT notwithstanding their rejection by the Defendant.[28]In AK (Sri Lanka) v SSHD 2009 EWCA Civ 447 at para 34 Laws LJ stated that realistic prospect of success means only more than a fanciful prospect of success.[29]I was referred to the Court of Appeal decision in LD (Algeria) v SSHD 2004 EWCA Civ 804, in which the Court considered the application of the guidelines in Devaseelan v SSHD 2003 Imm AR 1 for the consideration of previous decisions of the FTT in respect of the same appellant. The court made clear at paragraphs 28-30 of its judgement that, while regard must be had to the previous decision, it was not binding on the second adjudicator’s determination, who will be free to consider new material or arguments that were not before the first adjudicator (now the FTT).[30]In SSHD v MN and KY 2014 UKSC 30 the Supreme Court considered the weight to be given to Sprakab linguistic analysis reports. In paragraphs 46-48 of his judgement Lord Carnwath emphasised the importance of the critical examination of such reports and only giving such weight to the conclusions in the report as is merited as a result of that examination.[31]I was also referred to the judgement of Cranston J in Ashraf v SSHD 2013 EWHC 4028 (Admin), where the judge considered the weight to be attached to medical reports. In agreement with earlier judgements of the court Cranston J emphasised the need for caution, particularly where the medical opinion is based on the account given by the patient. As doctors will rarely assess the credibility of the account given to them, a distinction needed to be made between an opinion that, for example, scarring is consistent with the account given and the credibility of that account in itself.[32]Under the Defendant’s Enforcement Instructions and Guidance 2014 (EIG) paragraph 55.10 provides criteria for detention, including the following:
‘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 mental illness which cannot be satisfactorily managed within detention. • those suffering from serious mental illness which cannot be satisfactorily managed within detention…. In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed or are awaiting transfer under the Mental Health Act. • those where there is independent evidence that they have been tortured ….’
[33]Against that background I will deal with each of the matters under challenge in turn.

Decision to detain on 11 July 2014

[34]As indicated above, the Defendant accepts that the decision to continue detention was unlawful because it was based on a mistake of fact in the decision letter that the body map showed that the Claimant had no physical scars. The issue is therefore whether the Claimant would be entitled to more than nominal damages on the grounds that the Claimant would have in any event continued to be lawfully detained even if account had been taken of the scarring to the right leg recorded in the rule 35 report.[35]In this respect I adopt the approach approved by Richards LJ in OM, applying the normal standard of the balance of probabilities rather than any higher test based on Lord Dyson’s reference to inevitability in Lumba. That was not contested by Ms Justine Fisher, who appears for the Claimant.[36]By the time of the decision to continue detention on 11th July 2014 the Claimant had been in detention since 20th April 2014. Bail had been refused because of the risk of absconding on 29th May 2014.[37]The Claimant’s appeal to the FTT had been dismissed on 12th June 2014, finding that claimant was Tanzanian. His application for permission to appeal to the Upper Tribunal was outstanding.[38]As I have noted earlier, the rule 35 report dated 9th July 2014 set out the Claimant’s account of his treatment in Somalia including being beaten with the butt of a gun and having lengths of wire inserted in his legs. It commented that ‘these have left some scars and indeed some persisting numbness.’ The body map showed an area with scars on the lower right leg. The report continued:
“He reports he feels safe in the UK but does get troubled by flash back, often with the episodes as he were actually there and causing significant concerns for others around him. His sleep is not good – with early morning waking but I am pleased to note that he is orientated and has no thoughts of self harm. He has started on medication here and we will augment this care with various talking therapies. I believe we can support his needs here but in my view he has been adversely affected by the experiences he has undergone.”
The doctor had ticked the box that the doctor had ‘concerns that this detainee may have been the victim of torture’.[39]Turning then to the decision letter dated 11th July 2014, to which I have also referred above, in paragraph 2 it set out an accurate summary of the narrative in the report including the fact that the Claimant had been left with some scars from his torture, as well as that he did not sleep well. The error arose in the last two sentences of paragraph 8 of the letter, where, having referred back again to the narrative in the report, it concluded ‘However you sleep well and have been started on medication. The body map indicates that you have no physical scars.’ That was directly contrary to the report which noted that the Claimant did not sleep well and had scarring as shown on the body map. There is no explanation how that error came to be made.

Submissions

[40]In the light of those errors Ms Fisher submits that as a result the Defendant was not or may not have been alive to what was plainly independent and potentially significant corroborative evidence of torture in the form of the scarring, which the doctor had indicated was consistent with the Claimant’s account of having been tortured. That evidence had not been before the FTT as part of the previous appeals. In accordance with the Defendant’s EIG, where there was independent evidence of torture, detention could only continue in very exceptional circumstances. There was nothing here to support a finding of very exceptional circumstances. It was therefore not possible to conclude that the Claimant would have continued to be lawfully detained if the rule 35 report and the clear evidence of scarring consistent with the account of torture in Somalia had been properly considered. As I have indicated, that is rejected by Mr Bird who contends that the Claimant would in any event have continued to have been lawfully detained for the overall reasoning set out in the decision letter. Consideration[41]The determination whether there was independent evidence of torture was for the Defendant in the light of all the evidence before her at the time. The rule 35 report does not conclude that the Claimant had been tortured but only indicated a concern that he may have been tortured, based on his account and the presence of the scarring. The purpose of rule 35 is to alert the Defendant’s officers to that possibility so that it can be considered with a view as to whether or not detention should be continued.[42]That was done in the decision letter dated 11th July 2014. It is instructive to consider the effect of the mistake in the light of the reasoning for the decision set out in the letter.[43]Paragraphs 2-3 set out the context for the decision including the substance of the rule 35 report as set out above. In paragraphs 4 and 5 the letter summarised the Claimant’s earlier immigration history, including that he was Tanzanian and had entered this country in 1998 and had then overstayed.[44]In paragraph 6 the letter noted that the Claimant had made an asylum claim under a different name in 2009, which was rejected by the FTT in 2010. In paragraph 7 the letter recorded that after a further period of absence and following his detention on 20th April 2014 the Claimant’s humanitarian claim and his appeal against removal, which included his continuing claim to be Somalian, were rejected.[45]So far there is nothing in the reasoning or background which would be altered as a result of correcting the mistakes in paragraph 8 of the letter. In paragraph 9 it was noted that the claims in the rule 35 report were essentially a ‘reiteration of your asylum claim’, which had been previously rejected by the FTT. It set out the findings of the immigration judge in 2010 and in paragraph 10 reached a conclusion rejecting the claim in the rule 35 report that he was Somalian. On the evidence before her that conclusion was plainly open to the Defendant. It fundamentally undermined the Claimant’s account of torture in Somalia.[46]I set out paragraph 11 of the letter earlier in his judgement. On its own the scarring could not constitute independent evidence of torture. In any event there was no evidence before the Defendant that supported a claim of torture apart from the Claimant’s account that he had been tortured in Somalia. That was undermined by the Claimant’s recorded immigration history and the evidence accepted by the FTT and the Defendant that he was in fact Tanzanian. In those circumstances in my judgement it is wholly unlikely that the Defendant would have found that the scarring on its own constituted independent evidence of torture when the account given by the Claimant had been found to lack credibility.[47]With the exclusion of the incorrect and inconsistent reference to the absence of physical scarring and the Claimant not sleeping well I consider that it is wholly improbable that the Defendant would have accepted the Claimant’s account that he was tortured in Somalia in the circumstances of this case. The conclusion would in any event have been that there was no independent evidence of torture for the purposes of the EIG. Given the background of absconding and the imminent removal of any evident obstacle to removal with the exhaustion of the Claimant’s rights of appeal, I conclude that the detention would have been highly likely to have been continued. In these circumstances damages would be nominal.

Decision to detain on 13 September 2014

[48]In the intervening period following the decision on 11th July 2014 the Claimant’s application for permission to appeal to the Upper Tribunal was refused on the 18th July 2014 so that he became appeal rights exhausted.[49]On 4th August 2014 bail was refused on the grounds that the detention was necessary to effect removal and that it was proportionate to the Claimant’s immigration history.[50]On 1st September 2014 the Defendant rejected further submissions made by the Claimant in August 2014 as a fresh claim. That decision has not been challenged.[51]As I have noted above, on 11th September 2014 the second rule 35 report was submitted by the Claimant to the Defendant. It was by a different doctor who also indicated that he had concerns that the Claimant may have been the victim of torture. The report contained a similar note of the Claimant’s account of his torture in Somalia. It recorded as the impact of his treatment that the Claimant suffered from PTSD with flashbacks. The attached body map indicated the scars on his right leg where he said he was hit by the rifle and where a wire was passed into the veins. The report noted that he was receiving counselling by the mental health nurses and that he would be ‘less affected’ if he was released.[52]The decision letter dated 13th September 2014 followed a similar form to the previous decision dated 11th July 2014. While it accurately summarised the contents of the rule 35 report in paragraph 3, it incorrectly stated in paragraph 9 that ‘The body map indicates that you have no physical scars’. Again there is no explanation how that error came to be made.[53]In these circumstances Ms Fisher accepts that the only distinguishing feature from the first decision in this respect is the additional length of detention. In my judgement, if the erroneous reference to the absence of physical scars had not been made, there is nothing in the circumstances of this case, bearing in mind the history of absconding and the absence of any apparent obstacle to removal, which would have made the continued detention of the Claimant unlawful in light of the Hardial Singh principles on account of the length of his detention. I conclude that in those circumstances it is again highly probable that the Defendant would have continued to detain the Claimant pending his removal and that that continued detention would have been lawful. In these circumstances damages would again be nominal.[54]I also note that on 15th September 2014 the Claimant had applied under the Trafficking Convention for a determination that he had been the victim of trafficking. The decision of the competent authority on that application was made on 26th September 2014, on the grounds that there were no reasonable grounds to believe that he had been the victim of trafficking. The basis of claim was similar to his asylum claim that he was Somalian and called Ramadhan Mohammed. The reasons in the decision rejected that account on the basis that his account was not internally consistent and lacked credibility. It was also contrary to his established immigration history. There is nothing in the decision which indicates a different overall view from the conclusion that I have reached that detention would in any event have been continued and would have been lawful.

Decision dated 14th November 2014

[55]As I have noted above, on 5th November 2014 the Defendant gave directions for the Claimant’s removal to Tanzania by a flight leaving at 19.00 hours on 14th November 2014.[56]On 11th November 2014 the Claimant’s solicitors sent the PAP letter to the Defendant. The letter maintained the Claimant’s claim that he was Somalian and that he had been tortured in Somalia. The letter enclosed the medical report from Dr Iona Steen. The report set out in section 2 the Claimant’s account that he entered this country illegally in 2008 on a Tanzanian passport with the name Jesse Christopher Gathurah. Subsequently he was taken to Leeds where he made his asylum claim. In section 9 the report dealt with the scarring. Her overall conclusion in accordance with the Istanbul Protocol was that the overall pattern of scarring was highly consistent with his account of torture. In section 10 the report reviewed the Claimant’s mental state, concluding that that was again consistent with his account of torture.[57]In section 12 she concluded that he was at low risk of self harm or suicide but that given the deterioration in his mental health he was at risk of further deterioration. ‘…the deterioration in his sleep, the development of psychotic symptoms and the continued uncertainty about his future puts him at risk of significant further deterioration.’[58]In section 13 the report referred to the Claimant’s account of psychotic experiences and concluded that he did not meet the CAA and IATA guidelines for psychiatric fitness to fly and that he required further assessment, treatment and stabilization of his psychiatric symptoms before he would be fit to fly.[59]In section 14 the report considered his fitness to be detained. It concluded:
“In my opinion (the Claimant) is not mentally fit to be detained due to his mental health and history of torture and would greatly benefit from being treated in a community setting. Any continued detention is likely to have a further detrimental effect on his short-term and long term health as it may worsen his psychotic symptoms making the treatment for PTSD more difficult and his recovery time longer. A community setting would also enable him to be referred for specialist trauma-focused therapy for PTSD …. As far as I am aware this treatment is not available in detention”
The report set out forms of possible therapy which could be suitable.[60]On the basis of the report the PAP letter requested that the removal directions be cancelled and that the Claimant should be immediately released from detention.[61]The PAP letter also raised concerns about the Sprakab report in the light of the guidance in MN and KY. It specifically pointed out the erroneous use of ‘she’ in referring to the Claimant and the fact that it was based on listening to a tape of the interview rather than a face to face interview. It requested that removal was deferred while the Claimant obtained a further linguistic report.[62]The letter renewed the Claimant’s claim for humanitarian protection. However, contrary to the account in the medical report, the letter asserted that the Claimant had lived in the UK since 1998. The letter enclosed additional documentation in support including what purported to be a copy birth certificate for Ramadhan Mohamed dated 20th November 1980 issued in Mogadishu. This had been previously provided to the Defendant as part of the Claimant’s representations on 30th April 2014, to which I have referred above.[63]On 14th November 2014 the Defendant responded to the PAP letter and further representations by letter dated 14th November 2014. The letter summarised the claims in the PAP letter in paragraphs 2 and 3. It then summarised the Claimant’s recorded immigration history, pointing out that no plausible explanation had been given for the discrepancies, concluding that no weight could be placed on the Claimant’s claims. In paragraph 6 the letter dealt with the copy birth certificate. It commented that it was inconceivable that this certificate was not presented at the earlier appeal hearings and noted the absence of any explanation as to how it came into the Claimant’s possession or had not been earlier produced. It was rejected as evidence of his Somalian nationality.[64]The letter then dealt with the report from Dr Steen. In paragraph 11 it concluded that there was nothing in the report which suggested that there would be a breach of the Claimant’s article 3 rights if he was removed to Tanzania, although the treatment there may not be of the same standard as in this country. In paragraph 17 the letter confirmed that with regard to his fitness to fly the Claimant’s health was under regular review while in detention and that a doctor would decide if he was fit to fly before he was removed. In the Claimant’s case he had been assessed and there were no doubts as to his fitness to fly.[65]The letter considered the fresh claim on humanitarian grounds, which was rejected, and concluded that the new material did not meet the requirements for constituting a fresh claim for the reasons set out in the letter. In the circumstances there was no barrier to the removal of the Claimant. Submissions[66]Ms Fisher submits that the decision to reject the new material comprising the report from Dr Steen and the copy birth certificate as at least creating a realistic prospect of a successful appeal to the FTT was irrational. It was not possible to dismiss Dr Steen’s expert opinion on the high consistency of the scarring with the Claimant’s account of torture as of no material weight. This material was not before either of the earlier FTT hearings and needed to be considered afresh. Moreover her opinion as to his fitness to be detained and to fly was also new and was at the very least capable of being accepted by another tribunal. There were also the criticisms of the Sprakab report, which had not been previously made.[67]She further submits that the period since the original detention on 20th April 2014 was now in excess of six months. Given the actual or imminent commencement of the judicial review proceedings, there was no real prospect that the Claimant would be able to be removed in the foreseeable future. In these circumstances in accordance with the Hardial Singh principles the Claimant should have been released forthwith.[68]In this respect Mr Bird refers to Ashraf and in particular that medical reports should not be accepted without question and that they often depended on the credibility of the patient. He submits that this is particularly the case with Dr Steen’s report, which very largely reflected what she was apparently told by the Claimant, although in this respect it was fundamentally at odds with the PAP letter, which accepted that he had entered this country in 1998. In particular the report from Dr Steen contained an account that the Claimant had been in Kenya until 2008 when he entered the UK. That was totally inconsistent with the fact that he had obtained a student visa in 1998 from Tanzania and attended college in the UK as a student visitor. His son was born in UK in March 2008.[69]The criticisms of the Sprakab report did not address the Claimant’s lack of knowledge of Somalia and its currency. The error in the report in on occasion using ‘she’ for ‘he’ was not capable of realistically undermining its credibility. The reliance on a tape of the interview was made clear in the report and did not detract from any of its findings.

Consideration

[70]In my judgement the Defendant was fully entitled to conclude on the evidence before her that there was no realistic prospect of the new matters taken together with the earlier material succeeding in the FTT. The conclusions in Dr Steen’s report on torture were critically dependent on the Claimant’s account as given to the doctor and was on the findings of the Defendant demonstrably false. It was true that the previous consideration by the FTT had been without direct reference to medical evidence and in particular consideration of the scarring. However a medical opinion that establishes that scars are consistent with an account of torture which demonstrably lacks credibility is unlikely to support the case for humanitarian protection in any material way. It is pure speculation how the scars were caused in the absence of a credible explanation from the Claimant.[71]So far as fitness to fly and to be detained is concerned, the Defendant was entitled to take her own advice. It was clear that the Claimant was receiving treatment in detention. There was nothing in the report of Dr Steen which meant that it was irrational for the Defendant to conclude that the Claimant was not suffering from a serious mental illness which could not be satisfactorily managed within detention or that there was no realistic prospect of an appeal to the FTT succeeding in that respect.[72]The Defendant was in my judgement entitled to conclude that in the absence of any explanation from the Claimant it was not credible that the copy birth certificate would not have been produced before, if it was genuine. In any event it was not new in this respect as it had been previously considered and rejected. I should make clear that in my judgement the birth certificate to which the immigration judge refers in paragraph 21 of his decision dated 12th June 2014 was plainly the certificate relating to the Claimant’s son. This certificate was one of the documents also enclosed with the PAP letter dated 11th November 2014 and specifically records the Claimant as having a place of birth in Tanzania. I reject the submission that it related to the copy birth certificate relating to the Claimant’s alleged birth in Somalia.[73]The limited specific criticisms of the Sprakab report, which related to what appeared to be typographical errors and the fact that it was based on listening to a tape of the interview rather than a face to face interview, were not of material weight, particularly when judged against other evidence of the Claimant’s nationality.[74]So far as article 8 is concerned, he was estranged from his wife and had no established family life with his son. In any event this material was not new and had been previously considered and rejected by the FTT as well as the Defendant.[75]In my judgement accordingly the Defendant’s decision to reject the new material as a fresh claim was open to her on the evidence before her and was well within the range of rational decision-making in this respect. This ground of challenge accordingly fails.[76]On the Hardial Singh principles it is not clear that this formed part of the representations made on 11th November 2014 and it is not therefore surprising that the Defendant’s response dated 14th November 2014 did not expressly address that aspect. In any event, whether or not the proceedings had actually been issued, it is clear that the letter was written in anticipation of the proceedings being commenced. Paragraph 28 of the letter expressly deals with the deferral of removal on the issuing of proceedings or an injunction being obtained. However, in the particular circumstances of this claim and the immigration history there was nothing in my judgement which made the overall period of six months detention unreasonable. Moreover, at that stage there was nothing in the PAP letter or otherwise that indicated that removal would be bound to be deferred for a period such that it would in any event become unreasonable. In these circumstances in my judgement the Defendant was entitled to continue detention for the reasons set out in the letter dated 14th November 2014 and as set out above.

Removal of the Claimant on 14 November 2014

[77]I have set out the relevant background earlier in this judgement. The breach was not intentional and an apology was made to the court for the breach. No action for contempt has been taken by the court on its own motion or otherwise. The questions that therefore arise for determination are:a. Whether the breach of the injunction made the administrative decision to remove the Claimant and his removal unlawful and/or whether it was otherwise unlawful;b. Whether the Claimant has a claim for damages for his removal; andc. if so, whether the damages would be nominal?

Submissions

[78]On the first question Mr Bird accepts that the removal was unlawful in so far as it was a breach of the court order, but he contends that it was otherwise lawful, removal being within the powers of the Defendant under sched 2 to the 1971 Act. He submits that there is no statutory provision for a contempt of court to be actionable in a private suit for damages. He referred to De Smith’s Judicial Review 7th ed para 19-005 in support of the proposition that ‘there is no right to damages for unlawful administration per se’.[79]He referred to the Court of Appeal decision in Chapman v Honig 1963 2 QB 502, where the Court held that there was no civil action for damages where the landlord had served a notice to quit which would otherwise have been lawful but was in contempt of court because it sought to intimidate a witness. That is supported by the opinion of Lord Bingham in CCE v Barclays Bank 2007 1 AC 181 at paras 17 and 20.[80]In the recent judgement of Teare J in JSC BTA Bank v Ablyazov 2016 EWHC 230 Comm the judge set out an illuminating and comprehensive analysis of the relevant authorities and concluded at paragraph 21 that there was no power to order the payment of damages for contempt. The judge went on to make clear that that did not preclude an action based on another tort such as conspiracy supporting a claim for damages. The principle only applied where reliance is placed on the contempt alone.[81]Ms Fisher does not challenge the proposition that there is no action for damages for a contempt in itself. However, she submits that the existence of the power to remove the Claimant cannot make his unlawful removal in breach of the court order lawful. She draws attention to the power of the court under section 31(4) of the Senior Courts Act 1981, which provides:
‘On an application for judicial review the High Court may award to the applicant damages … if (a) The application includes a claim for such an award arising from any matter to which the application relates; and (b) The Court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.’
[82]She also draws attention to part 54.3(2) of the CPR, which provides:
‘A claim for judicial review may include a claim for damages … but may not seek such a remedy alone. (Section 31(4) of the Senior Courts Act 1981 sets out the circumstances in which the court may award damages… on a claim for judicial review.’
[83]She accordingly submits that in this case the application for judicial review is in respect of the Defendant’s decisions to detain the Claimant and his unlawful removal. The Claimant would have an action for false imprisonment, for which he would have been entitled to damages. The unlawful removal to Tanzania was all part of that claim and it is accordingly within the power of the Court to grant damages under the 1981 Act and the CPR.[84]She submits that the act of removal itself involved imprisonment for the purposes of the tort of false imprisonment. Hence, if the removal was unlawful, the Claimant would be entitled to damages for the consequent false imprisonment.[85]She also submits that the removal was in breach of article 3 and 5 of the Convention with reference to the judgement of Black J in R (oao E) v SSHD 2006 EWHC 3208 (Admin). However, in my view that case does not go to the issues with which I am here concerned, as opposed to the overall merit of a decision to remove, which has been addressed separately in this judgement. In any event, as Mr Bird pointed out in his response, it has not been pleaded in support of the damages claim for the unlawful removal.

Consideration

[86]In my judgement, in the light of the authorities to which I have referred above, it is clear that there is no private action for damages arising solely out of a contempt of court. The contempt is a matter for the court to enforce as part of its statutory and inherent jurisdiction. For the purposes of this particular issue the illegality relied upon is the breach of the court order. If the detention was otherwise unlawful, there would be a private action in tort for false imprisonment or otherwise.[87]In this case however I have concluded that the Defendant could have lawfully detained the Claimant and had acted lawfully in rejecting the further submissions on behalf of the Claimant that she should cancel the removal directions and release him from detention. In those circumstances it does not seem to me that the Claimant would have an action for private law damages in respect of the breach of the court order through the exercise of what was otherwise a lawful power to remove the Claimant. The same would apply to the element of detention or restraint involved in that removal. In these circumstances in my judgement the second limb of section 31(4) of the 1981 Act is not met and there is no power to award damages for the effect of the removal in breach of the order. No other tortious basis for damages has been pleaded by the Claimant.[88]As a result the second and third issues do not fall for determination. However, it may be helpful if I indicate my view as to whether damages would in any event have been nominal, even if there was a valid basis for the award of damages for the removal in breach of the order.[89]It was submitted by Ms Fisher that the Claimant sustained injury in the form of the haematoma through use of the restraining belt and that this was therefore a direct consequence of the unlawful removal.[90]However, I am not satisfied that this would be a reasonable consequence of the removal as such. There is no evidence that the use of a restraining belt is not a normal part of the removal process, still less that its use would reasonably be expected to result in chest injury of the kind sustained by the Claimant. In my judgement any claim for damages in this respect would depend on establishing that there had been some other tortious basis for recovery. That would be a separate action and not one that could be joined as part of this claim for judicial review, at least without an order to that effect.[91]However, it would remain the case that the Claimant was exposed to the distress and discomfort of removal as far as Nairobi on 14th November 2014 and the return, arriving early on 16th November 2014. In my judgement in that respect he would be entitled to more than nominal damages if there was a relevant power to award damages in that respect.

Overall Conclusion

[92]In conclusion for the reasons set out earlier in this judgement I have decided that:a. the decisions to continue detention of the Claimant on 11th July 2014 and 13th September 2014 were unlawful but the damages in each case should be nominal;b. that the decision of the Defendant on 14 November 2014 to reject the Claimant’s further representations as a fresh claim and to refuse to cancel the removal directions and release the Claimant was lawful; andc. that the Claimant has no relevant claim for damages in respect of his removal in breach of the order of the court made on 14th November 2014.