Mohammed, R (On the Application Of) v Secretary of State for the Home Department [2016] EWHC 447 (Admin)

[2016] EWHC 447 (Admin)Case No CO/665/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/03/2016
Before
MR JUSTICE HAYDEN
Between
THE QUEEN on the application of ABDULRAHMAN MOHAMMEDClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Buttler (instructed by Leigh Day) for ClaimantMr Ostrowski (instructed by the Government Legal Department) for DefendantHearing Hearing dates: 24 th February 2016
JudgmentMr Justice Hayden :
[1]The Claimant issued an application for Judicial Review and filed Particulars of Claim for false imprisonment on the 8th February 2016. In addition, interim relief was applied for with a request that it be considered at a hearing, to be listed in the week commencing the 22nd February 2016. Wyn Williams J gave directions on the 11th February 2016 for the matter to be listed this week to consider whether the Claimant should be released pending further order.[2]The Claimant is a national of Somalia who is the subject of a Deportation Order, on the grounds that his deportation would be conducive to the public good. It is not difficult to see how those grounds could be made out. He has a disturbing history of offending characterised by violence or the threat of it. Most recently he was convicted, on the 5th December 2013, of an offence of robbery and sentenced to 4 years imprisonment. I do not propose to burden this judgment with the Claimant’s full antecedent criminal history but I note that on the 3rd September 1999 he was convicted of an offence of wounding with intent, contrary to s.18 Offences Against the Person Act 1861 and sentenced to 4 years imprisonment. 10 months after release from that sentence he was sentenced to a further 4 years imprisonment for an offence of robbery. With ironic understatement Mr Buttler, counsel on behalf of the Claimant recognises in his Grounds for Judicial Review that Claimant ‘might not be considered an asset to society’.[3]He acknowledges, on his client’s behalf that it is ‘understandable’ why the Secretary of State might, for what he identifies as ‘political reasons’, be reluctant to release the Claimant. In a letter to the Claimant from the Home Office, dated 1st October 2015, the following analysis is set out:
“Your criminal behaviour undermines the good order of society and renders you a threat to it. The United Kingdom is not required to keep here someone whose conduct strikes so deeply at it social values that it strains the tolerance of even a broad minded society. If you are released from detention, our actions can lead to an negative view of the Home Office by the general public who may see the Department in failing in its duty to protect them from criminals and thereforethere is a high risk of harm to the public”
[4]These are, says Mr Buttler, political factors which he submits should ‘hold no sway in these proceedings’. The Court must, in the performance of its own duties, ensure that powers of detention are exercised only in accordance with the law and, where demonstrably unlawful, the Court should not flinch in holding the executive strictly to account. In his admirably succinct and focused Skeleton Argument prepared for this hearing Mr Buttler submits this is a ‘stark case’ for reasons which he summarises thus: “There is independent evidence that the Claimant has been tortured, which means that the threshold for justifying detention is far higher than in other cases: there must be very exceptional circumstances. The Defendant has erroneously failed to apply this very high threshold. The Claimant has an outstanding asylum claim and, allowing for the Claimant’s appeal rights, there is no realistic prospect of removal in 2016. It is very doubtful that the Claimant will ever be removed: he is from Somalia where there is a risk of Art 3 harm unless an individual has the support of family or a majority clan; the Claimant left aged 12, is from a minority clan and has no surviving family in Somalia. The Claimant has already been detained under administrative powers for a very long time, during which the Defendant has been guilty of extraordinary inaction.[5]The statutory power to detain immigrants for the purposes of deportation is circumscribed by the Defendant’s policies. This, as a principle, is not controversial. A material breach of the policy on torture vitiates any authority to detain an immigrant. Again as Mr Ostrowski, who appears on behalf of the Defendant, accepts, this is well established by case law, see in particular: Lumba v SSHD [2012] AC 245 andKambadzi v SSHD [2011] 4 All ER 975.[6]Paragraph 55.10 of the Defendant’s Enforcement Instructions and Guidance imposes strict limits on the power to detain particular categories of individuals:
“The following are normally considered suitable for detention in only very exceptional circumstances… Those where there is independent evidence that they have been tortured”
. Those where there is independent evidence that they have been tortured”.[7]The reasoning underlying this policy was identified succinctly by Burnett J (as he then was) in R (EO & Others v SSHD [2013] EWHC 1236 (Admin), para 59):
“There is no doubt about the underlying rationale of the policy. Those who have suffered torture in the past are disproportionately adversely affected by detention. That is why the Secretary of State will normally detain those in respect of whom there is independent evidence of torture only in very exceptional circumstances. However, in my judgment it is a mistake to conflate what is desirable with what is required by the policy operated by the Secretary of State in this area.”
[8]Mr Ostrowski told me and I accept without reservation, that despite endeavours on his part, he had received only the most general instructions for this hearing. He did not file a Skeleton Argument on behalf of the Defendant but sought individually to traverse each of the Claimant’s arguments in oral submissions. Initially, he contended that the Claimant had not established evidence of torture. The meaning of ‘independent evidence of torture’ was considered by the Court of Appeal in R (AM) v SSHD [2012] EWCA Civ 521, where the Court contrasted ‘independent evidence of torture with actual proof that torture had occurred’. This distinction resonates in the Secretary of State’s own policy documents. In EO & Ors Burnett J observed at para 68:
“There is a clear difference between something that amounts to independent evidence of a fact and proof of that fact. In making any finding of fact, the fact-finder will weigh all of the evidence according different weight to different pieces. The credibility of a witness will be critical in determining the answer to any factual question; and when a witness is making a claim his credibility will be crucial. But that does not mean that a piece of evidence which supports his central claim is any less ‘independent evidence’ even if, in the end, the claim is rejected. The underlying credibility of a detainee does not, in my judgment, go to the question whether something amounts to independent evidence of torture. Such evidence is necessarily something beyond the say so of the person concerned”
[9]On 6 October 2015, Dr Margit Szel (a doctor at The Verne Immigration Removal Centre, where the Claimant is detained) made a r 35 report to the Defendant. I take the summary below from the Claimant’s Grounds: “The Claimant had related the following account to the doctor: in 1992, members of the Abgal Tribe of the Hawiye Clan came to his family’s house. They killed his uncle with a gunshot to the back of the head with a Kalashnikov and stripped and attempted to rape his 14 year old cousin. “This was witnessed by Mr Mohammed who was then lifted to a chair and held by the back of neck and could not move – his attacker stated ‘remember us by this’ then took the knife from the bayonet and attempted to take Mr Mohammed’s tongue out – but he resisted this attack. As a result of this Mr Mohammed says he sustained cuts to both sides of his mouth. At the time he bled a lot. He reports his cousins then stitched the wounds with a veterinary suture to the right wound. The wound on the left was glued with herbal remedies. He was also branded with a cattle prod on the right lower back which he states represents the Abgal Tribe of the Hawiye Clan”.[10]Crucially, the doctor examined the Claimant and described scars on his cheeks and right lower back. He expressed the following opinions: i) “I have concerns that this detainee may have been the victim of torture”. ii) “The scars on both sides of the face appear to be consistent with the story heard from Mr Mohammed”. iii) “The branding also appears consistent with a scar from a burn”. iv) “In summary the history and examination is likely to suggest Mr Mohammed was a victim of torture”.[11]This, says Mr Buttler, is independent evidence of torture. I agree. On the 8th October 2015 the report was considered by the Defendant’s case worker who, in so far as he can truly be said to have engaged with the issue, rejected the conclusions of the report. On 22nd September 2015 the Claimant’s solicitors submitted a new report, prepared by a Dr Jonathan Orrell. I identify the following paragraphs as relevant:
“4.2. Scars A and B are both on the face. This history given by Mr. Mohammed is plausible as the scars have the straight edges typical of a knife wound. The initial cut during the incident according to Mr. Mohammed was on the left cheek (Scar B): he said that this one was ‘too high’ and missed the mouth being above the upper teeth and running under the cheek bone. The second cut according to Mr Mohammed was scar B, which Mr. Mohammed said was a determined effort to prise open his teeth using a bayonet. This scar is the full thickness of the cheek on the right and would have opened the mouth cavity from the side. There are other possible explanations such as those Mr. Mohammed reports having proffered over the years, namely an attack by an animal or a car crash. The scars are however quite precise and linear without any signs of associated tissue damage that might be expected from the teeth or claws of an animal. They are also not the injury sites that would be expected from a car crash injury, where a common pattern of injury is that the forehead and front of the face is subject to multiple irregular cuts. These two scars both spare the midline at the front and the most prominent parts of the face and appear more like deliberate injuries. 4.3. Scars A and B are not likely to be caused by self-injury. Injury by the person themselves is possible mechanism for scar causation in general, though sites for this tend to be sites where implements can be directed more easily such as the forearms. Self-injury cuts are usually tentative multiple superficial wounds with rather than one or two deep cuts. It would be highly unusual to self-injure to the extent of cutting into both cheeks deeply, since this would be particularly painful, and because generally people do not like to cause lasting damage to their facial appearance or to impair their ability to eat. 4.4. Scars A and B are therefore highly consistent with being caused by deliberate and forceful cuts from a sharp weapon, including the use of a bayonet in the attack described by Mr Mohammed… 5.5. It not possible to completely exclude the possibility of a patient feigning or exaggerating their symptoms, but were this the case with Mr Mohammed, I would have expected him to claim more of his scars (C,D,E,F,G,H,I,K) were due to torture and to manipulate his answers when using the structured questionnaires on anxiety and depression to score maximal points. He did neither.”
[12]Though Mr Ostrowski endeavoured to deconstruct this report, pointing out that Dr. Orrell had formed the inaccurate impression that the Claimant had never before given an account of his torture, and had relied on that fact to support a view that the Claimant may be suffering Post Traumatic Stress Disorder, this does not address the central issue as to whether there is ‘independent evidence of torture’. To my mind, it is difficult, logically, to resist. Mr Buttler submits that Dr Orrell’s report provides ‘unusually strong evidence of torture’. It is perhaps also important to emphasise that in this situation there is an onerous burden on the Defendants to show that ‘every factor which might tell in favour of an applicant has been properly taken into account’: R (YH) v SSHD [2010] 4 All ER 448, para 24 per Carnwath LJ.[13]It is then necessary to consider the scope and ambit of ‘very exceptional circumstances’ required to justify continuing detention. Burnett J in EO & Ors (supra) provides the following helpful analysis:
“It follows that in considering the question whether something constitutes independent evidence of torture, and also the question whether there are very exceptional circumstances justifying continued detention, the court’s role is to ask whether the Secretary of State was entitled on the information before her to come to the conclusion or conclusions that she did. The second aspect, whether there exist very exceptional circumstances, is one that might lead to legitimate differences of view between different people considering the same material. The first aspect, even though governed by public law principles, is in reality fairly hard-edged. Whether something is, or is not, independent evidence of torture, will less often be capable of two different answers.”
[14]Later at paragraph 69:
“The policy gives some help with what may inform whether there are very exceptional circumstances. It refers to the need to weigh risks to the public of releasing convicted offenders with particular care. A very high, rather than routine, risk that the detainee will abscond might well also provide a proper basis for maintaining detention. The rubric is such that a host of factors may come into play. It was not suggested by the claimants in these cases that credibility is an irrelevant consideration in determining this question. In my judgment, the credibility of a detainee may be a factor which informs the question whether there are very exceptional circumstances for maintaining detention. Doubts about the credibility of the detainee would not be sufficient – that is commonplace. Acting on doubts would be tantamount to requiring the detainee to prove that the allegation of torture was true. The policy does not require that. However, there may be cases in which information available to the decision maker leads him to the firm conclusion that the torture claim is untrue, that is to say incredible or very unlikely to be true. It would be a perverse application of the policy to require the Secretary of State to release from custody someone in respect of whom there exists independent evidence of torture but also where it is clear that the claim is untrue. The policy does not require that. However, it should not be overlooked that the fact that a person is in detention in the first place will often have followed, or be associated with, a conclusion that an underlying claim has little or no substance. The fact that a person is in detention with usually suggest that an assessment has been made that there is a risk of absconding, or a risk of offending or some threat to the public. The policy assumes that these facts, presenting in a way which would ordinarily justify detention, are not without more sufficient to do so when there is independent evidence of torture”
[15]Certainly the history of the case establishes a ‘routine’ risk that the detainee would abscond (in the sense that this must be a risk in most cases) but it does not establish a ‘very high risk’. Ultimately, Mr Ostrowski accepts this. The real question is whether the history of offending itself establishes ‘exceptional circumstances’. In this respect Mr Buttler notes that a serious conviction for rape and indecency with a minor leading to a sentence of 8 years imprisonment did not displace the ‘default position’ of ‘release’ (as Burnett J termed it) in R (Abdi) v SSHD [2014] EWHC 2641 (Admin). In R (Sino) v SSHD [2105] EWHC 1831 (Admin) I observed: “However, the powers of the Secretary of State do not extend generally to permitting her to curtail an individual's liberty on these broad behavioural grounds. Hers is an administrative power of detention, circumscribed by the requirement that there be some prospect of achieving deportation. This fundamental premise is rooted in the respect for liberty and personal autonomy and traceable to Magna Carta: In A (Somalia) v SSHD [2007] EWCA Civ 804, Keene LJ summarised it: "The power given by Parliament to the Secretary of State, by means of Schedule 3, paragraph 2(3) of the Immigration Act 1971, to detain a person "pending his removal or departure from the United Kingdom" only exists when and for so long as there is some prospect of achieving that removal or departure. That is clear from paragraph 32 of Lord Brown of Eaton-under-Heywood's speech in Khadir." "The power given by Parliament to the Secretary of State, by means of Schedule 3, paragraph 2(3) of the Immigration Act 1971, to detain a person "pending his removal or departure from the United Kingdom" only exists when and for so long as there is some prospect of achieving that removal or departure. That is clear from paragraph 32 of Lord Brown of Eaton-under-Heywood's speech in Khadir."[16]The importance of the principle is uncompromisingly stated by Baroness Hale in R (Kambadzi) v SSHD [2011] 4 All ER 975 at para 61:
"[61] Mr Shepherd Kambadzi may not be a very nice person. He is certainly not a very good person. He has overstayed his welcome in this country for many years. He has abused our hospitality by committing assaults and sexual assault. It is not surprising that the Home Secretary wishes to deport him. But in Roberts v Parole Board [2005] UKHL 45 at [84], [2006] 1 All ER 39 at [84]; sub nom R (Roberts) v Parole Board [2005] 2 AC 738, Lord Steyn quoted the well known remark of Justice Frankfurter in United States v Rabinowitz (1950) 339 US 56 at 69, that 'It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.' Lord Steyn continued: 'Even the most wicked of men are entitled to justice at the hands of the State.' And I doubt whether Mr Kambadzi is the most wicked of men."
[17]This situation is, of course, also contemplated by the third statutory limit to the power to detain, summarised in R v Governor of Durham Prison, ex p Hardial Singh 1984 1WLR 704 (the Hardial Singh principles). They require to be set out: i) Limit 1: the Secretary of State must intend to deport the person and can only use the power to detain for that purpose. ii) Limit 2: the deportee may only be detained for a period that is reasonable in all the circumstances. iii) Limit 3: 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, she must not seek to exercise the power of detention. iv) Limit 4: the Secretary of State must act with reasonable diligence and expedition to effect removal.[18]As to limit 3, if it “becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period” the detainee must be released whether or not a reasonable period has expired: R (I) v Secretary of State for the Home Department [2003] INLR 196, para 47. Mr Buttler puts his argument on this point thus: i) The Claimant’s detention is in breach of the implied statutory limits on the Defendant’s powers and has been since 12 September 2012 (or some other date between then and the present) for each of the following reasons (and, to be clear, the Claimant need only succeed on one of these arguments): ii) Hardial Singh 3: since before 12 September 2012 (the beginning of the period under challenge), the Government has known that the Claimant’s case would need to be re-examined. Since at least 8 April 2013, the Defendant has recognised that she must make a fresh asylum decision on the Claimant’s case and that, even if that was negative, he would have an in-country right of appeal. In light of the tiny numbers of returns to Somalia and the length of time that the Claimant had previously been detained, the Defendant should have realised by 12 September 2012 that the Claimant could not be removed within a reasonable period: following Abdi and AG. Even if this was not sufficient clear by 12 September 2012, it became increasingly evident as time passed. As to the present situation, the Defendant has stated that an asylum decision will (finally) be taken by 21 April 2016. If that is negative, there is an in country right of appeal. Accordingly, it is impossible to see the Claimant being removed within 6 months, even if his claim and subsequent appeal fail. However, it is very unlikely that the claim and the appeal will fail because conditions in Somalia have not improved since Sufi and Elmi v UK (2012) 54 EHRR 9. There is a strong suspicion that, in delaying the determination of the Claimant’s asylum claim, the Defendant is simply putting off the fateful day when she will have to grant this individual the right to remain in the UK.[19]Mr Buttler foreshadowed his submission on this point in his prefacing comments to his Grounds for Judicial Review, submitting that, since the decision of the European Court of Human Rights (“ECtHR”) in Sufi and Elmi v UK (supra), it has been all but impossible to remove individuals to Mogadishu because of the high risk that a returnee will suffer serious harm. The argument is developed that since at least 8 April 2013, the Defendant must have recognised that she needed to make a fresh asylum decision on the Claimant’s case and that, even if that was negative, the Claimant would have an in-country right of appeal and so (2 years and 10 months later), the Defendant has still not decided the Claimant’s asylum appeal. This, it is argued, is a ‘flagrant’ breach of the fourth Hardial Singh limit on the power to detain, viz. that the Defendant must demonstrate that she has acted with reasonable diligence and expedition.[20]Further, it is contended that it is (and has long been) apparent that it would not be possible to effect deportation within a reasonable period, contrary to the third Hardial Singh limit on the power to detain. In response to the Claimant’s pre-action protocol letter before this claim, the Defendant stated that an asylum decision will be taken by 21 April 2016. If that is negative there is an in country right of appeal. Accordingly, it is impossible to see the Claimant being removed within 6 months, even if his claim and subsequent appeal fail. Further, Mr Buttler submits, it is very unlikely that the claim and the appeal will fail because conditions in Somalia have not improved since Sufi and Elmi.[21]In his Skeleton Argument Mr Buttler addresses the question as to the prospects of the SSHD being able to establish deportation to Somalia within a reasonable period, or indeed at all, in these terms:
“The situation has in fact changed since Sufi & Elmi (not as set out in the grounds for judicial review): see MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). As a result, the Defendant (and, on appeal, the tribunal) will need carefully to assess the support available, if any, to the Claimant in Mogadishu: see paras 407(f), (h) and 408. It has previously been found that: the Claimant is a minority clan member; he left Mogadishu at the age of 12; and he has no family in Somalia [3-211]. He therefore appears to have a very strong claim that there is insufficient protection available to him in Mogadishu and that his removal is prohibited by Art 15C Qualification Directive / Art 3 ECHR. In any event, whatever the strength of the Claimant’s claim, the reality is that miniscule numbers of appeals rights exhausted Somalians are being returned. In AG v SSHD [2015] EWHC 1309 (Admin), Richard Clayton QC (sitting as a Deputy Judge of the High Court) held that “the material shows that the numbers removed are tiny relative to the numbers who are liable to be returned and that the Secretary of State has failed to discharge the burden upon her to show that, before the expiry of a reasonable period, it became apparent that the Secretary of State will be able to effect deportation within a reasonable period” (para 141). The Deputy Judge was referring to the number of enforced removals to Somalia in 2012. According to published Home Office data, the numbers of enforced removals to Somalia in 2015 were not materially higher than in 2012 (about 0.05% of appeal rights exhausted Somalis).”
[22]Mr Ostrowski was not able to offer any alternative analysis to this. I am bound to say that I do not consider any exists. The prospect of deportation for this Claimant to Mogadishu / Somalia within a reasonable period is, on all the available evidence, remote. As such and within her own guidance, the Home Secretary is required to facilitate the Claimant’s release. That this has been the position now for some time is obvious. One is left with the sense that the decision has indeed been deferred, as the Claimant suggests, for reasons of expediency. Though the MOJ & Orsguidance, following the Al-Shabaab withdrawal from Mogadishu, contemplates fewer obstacles to return, the position plainly remains that set out in R (AG) v SSHD [2015] EWHC 1309 (Admin) and tells its own voluble story. Within the guidance there is identified a particular vulnerability within members of minority clans. Long before this guidance was published and therefore with no understanding of its potential future significance, the Claimant had identified himself as a member of such a minority clan. There is therefore a strong argument that each of the principles in Hardial Singh has been breached.[23]Mr Ostrowski had been able to take very clear instructions as to the range of any bail conditions, should I conclude that the strength of the claim and concomitant risk of injustice justified interim relief to include bail. The following conditions have been agreed between the parties: i) The Claimant must live and sleep each night at [a specified address]. ii) The Claimant shall be electronically tagged. iii) The Claimant must be present at [a specified address] between the hours of 10pm to 8am every day. iv) The Claimant shall report at Hounslow police station every Tuesday between 10am and 12pm. v) The Defendant must notify the Hounslow Borough Police Commander of the terms of this order and of the need to strictly monitor the Claimant’s compliance with the bail conditions no later than 24 hours before the Claimant’s release. vi) The Defendant shall make arrangements for electronic monitoring within 48 hours of Mr Justice Hayden signing this order. vii) Once the Defendant has complied with paragraphs 2 and 3 of this order, she shall forthwith release the Claimant.[24]For the reasons set out in my analysis above I am satisfied that this is a case where interim relief of the kind set out in paragraph 23 above is required, in the light of the strength of the claim for unlawful deprivation of liberty.

Cited in 2 later judgments