IO (Nigeria), R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 2940 (Admin)

[2018] EWHC 2940 (Admin)Case No CO/455/2017
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/11/2018
Before
Andrew Thomas QC, sitting as a Deputy High Court Judge
Between
THE QUEENClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Catherine Jaquiss (instructed by Duncan Lewis) for ClaimantCarine Patry (instructed by Government Legal Department) for DefendantHearing Hearing dates: 09 and 10 October 2018

Judgment Approved by the court for handing down

[1]The Claimant is 43 years of age and a national of Nigeria. He came to the UK in September 2012 on a 3 month visitor visa and overstayed. He avoided any contact with the border authorities or police until he was encountered and detained in London in July 2016. He was placed in immigration detention pending removal back to Nigeria.[2]In September 2016, five weeks after his detention, the Claimant made asylum and human rights claims alleging that he would be persecuted if returned. His claims were rejected by the Defendant on 14th October 2016 and certified as clearly unfounded. A challenge by way of Judicial Review was dismissed by the Upper Tribunal on 29th November 2016.[3]In these proceedings, the Claimant advances two separate claims, namely: i) a challenge to the Defendant’s decision that the Claimant’s further submissions in January 2017 did not amount to a fresh claim for the purposes of Paragraph 353 of the Immigration Rules; and ii) a challenge to the Defendant’s decision to detain him from 28th July 2016 until his release on 22nd February 2017. Background[4]The Claimant comes from Lagos State, Nigeria. His first language is Yoruba but he also speaks English. There is evidence that he had a difficult and deprived childhood and that he suffered significant physical abuse. He received limited schooling. He later obtained work, first as a bus conductor and then as a shop assistant. In his late 20s he opened a shop of his own and by his own account his business was a modest success. He ran the shop for about 10 years. His younger brother worked for him.[5]The Claimant’s case is that he left Nigeria in 2012 as a result of a violent attack by a gang who were looking for his brother. The Claimant says that the gang attacked him with severe violence and that they destroyed his shop. He went into hiding for several days then flew to the UK at the end of September 2012.[6]The Claimant was 37 years old when he came to the UK. Immigration records show that he landed at Heathrow on 28th September 2012. He was spoken to by an immigration officer. He said that he was the owner of a successful shop business in Lagos and that he was coming to the UK in order to rest. He was granted entry on 29th September 2012.[7]The Claimant’s visa expired on 7th December 2012. He overstayed and made no attempt to contact UK immigration authorities.[8]In 2014 the Claimant had a brief relationship with a woman named MA, also Nigerian. They cohabited for about 5 weeks and she became pregnant by him. The Claimant left her suddenly in September 2014. According to his own witness statement, the Claimant fled because he had seen police officers in the area and he feared that they had come to return him to Nigeria. He lost contact with MA for about two years. She has since moved to live in Birmingham. They had met each other again shortly before his detention in July 2016. He had seen his son on two occasions shortly prior to his detention.[9]On the morning of 28th July 2016, the Claimant was encountered by border force officials at a house in London. He gave a false name but fingerprint checks revealed his true identity. The Claimant was detained with a view to his removal.[10]I will deal separately with the facts relevant respectively to the Para 353 issue and to the lawfulness of detention. Although there is obvious overlap, it is more convenient to set out the relevant material within the judgment in this way. In reaching my judgment on both issues I have taken into account the whole of the evidence. The asylum and human rights claims[11]The Claimant was detained initially at the Verne IRC and later at Harmondsworth IRC. He had no lawful right to remain in the UK after his visa expired in December 2012. He had been issued with a Nigerian passport but said that he had lost it shortly after his arrival. The only barrier to his removal was the need to obtain an Emergency Travel Document (‘ETD’). On 23rd August 2016, the Nigerian High Commission confirmed in principle that they would issue the ETD.[12]On 2nd September 2016, five weeks after his initial detention, the Claimant said that he wanted to make a claim of asylum. The screening interview took place on 23rd September 2016 (conducted in English) and the full interview took place on 5th October 2016 (conducted in Yoruba). The Claimant has since produced a witness statement prepared by his Solicitors and given various accounts to his doctors.[13]There are significant factual discrepancies between the accounts which at different times the Claimant has given about the events which took place in Nigeria prior to his departure. However, nothing turns on that for the purposes of these proceedings. The Defendant’s case is that the claims for asylum and humanitarian protection fail even if the Claimant’s factual account is accepted at its highest.[14]In outline, the Claimant’s case is as follows. As well as working in his shop, his brother was a student at a local university. He had become involved with a gang or cult (also referred to as a ‘co-fraternity’) but had ended up in dispute with them. The Claimant himself had no involvement with this group.[15]The Claimant has given differing explanations for his brother’s falling out with the group. He has said that his brother had been targeted because he had joined a rival gang. Another account is that his brother had been given some money by a local politician; he was supposed to distribute it amongst members of the gang but he had kept it for himself. The Claimant has also said that his brother had killed someone and the gang were looking for revenge. Taking his case at its highest, the essential facts are that his brother had become a target of an organised gang or cult who wanted to kill him, and that the gang had links to a political party.[16]According to the Claimant, on a day in August 2012 members of the gang came to the shop looking for his brother. They were armed with weapons including wooden bats, a gun and a cutlass or machete. When they found that the brother was not there, they demanded that the Claimant tell them where to find him. They remained in the shop for several hours, threatening him, vandalising the shop and eventually beating him. The Claimant lost consciousness but when he later woke up he had multiple injuries including wounds to his arm and leg. The shop was burned down. The Claimant was helped to escape by a local pastor. The gang came looking for him again but he remained hidden at the pastor’s house for 5 days. After that, he says that he lived rough in garages.[17]The Claimant says that his mother’s house was attacked as well and she was injured. He has stated that she died as a result of her injuries. He has produced two documents: a death certificate showing that his mother died on 30th August 2012; and an obituary notice in the name of the Claimant and his brother which states that their mother died on 30th August 2012 “after a brief illness”.[18]The Claimant says that the pastor’s relatives tried to report these crimes to the police at two local stations. They told him that the police had said that they could not help because they do not get involved with ‘cult matters’. They advised him to leave. The Claimant says that he eventually went to a travel agent and bought a ticket to fly to the UK. The Detailed Reasons for rejecting the claims[19]The claims for asylum, humanitarian protection and human rights claims were rejected by the Defendant on 14th October 2016. The decision letter contains 21 pages of detailed reasons. The present claim for judicial review relates to the decision some months later rejecting further submissions from the Claimant. However, as Miss Patry rightly submits, it is important to give close scrutiny to the original decision to understand the Defendant’s full reasons for rejecting the claims both initially and following the further submissions.[20]The Defendant’s approach was, for the purposes of the decision, to accept the Claimant’s assertions about the factual background at their highest. The Detailed Reasons state:
“Although your claim has been considered at face value this is not a concession that your claim has been accepted.”
[21]On the Defendant’s case, the reasons given for rejecting the claims can be divided into four separate grounds, each of which independently would be a bar to the claims succeeding. Miss Patry sets them out as follows. i) The factual account which the Claimant gave did not amount to persecution within the definitions provided by Articles 9 and 10 of the Qualification Directive 2004/83/EC and/or the Refugee Convention. (see Paras 40 to 47 of the Detailed Reasons). The Claimant himself had never been a target of the gang or cult. At all times the objective of the gang was to force him to help them find his brother. ii) In any event, the Defendant says, there is no basis for suggesting that there is a well-founded fear of persecution on return (see Paras 48 and 49 of the Detailed Reasons). Again, the point is made that there is nothing to suggest that the Claimant himself would be a target. iii) The Defendant says that there was a sufficiency of protection in Nigeria (see Paras 49 to 65 of the Detailed Reasons). The Defendant relies on guidance which states that Nigeria has a large police force and a criminal justice system which is usually effective. The Defendant recognised that there are deficiencies in the system but concluded that protection was sufficient in the present case. iv) Internal relocation within Nigeria was available to the Claimant (see Paras 66 to 80 of the Detailed Reasons). If he feared repetition of the violence in his home area, there was no reason why he could not relocate elsewhere within Nigeria. His medical condition was noted and taken into account, but it was not considered a barrier to relocation. It was noted that he had spent most of his life in Nigeria, he spoke both English and Yoruba, he had demonstrated that he has significant work skills, and his conduct after coming to the UK was evidence of his resilience and resourcefulness.[22]Having dismissed the asylum claim on these four separate grounds, the letter went on to consider and dismiss his claim for humanitarian protection. The letter also dismissed any claims relating to private and family life arising under Art 8 ECHR, both within and outside the rules. Nothing turns on those for the purpose of these proceedings.[23]The letter concluded by way of summary:140. In addition, your asylum claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify your claim is clearly unfounded unless satisfied that it is not clearly unfounded. After consideration of all of the available evidence, it has been decided that your claim is clearly unfounded. Therefore it is certified under section 94(1) of the Nationality Immigration and Asylum Act 2002 that your claim is clearly unfounded.141. Your claim for asylum is considered to be one which is bound to fail because, barring speculation, you have not shown a reasonable degree of likelihood of being exposed to persecution on return. As reasoned above, there is no evidence to show that the claimed agent of persecution has any influence over the authorities in your country or that the authorities are otherwise unable or unwilling to provide domestic redress. On the facts of your case, it is cojsidered that there is adequate protection available, to the Horvath standard, to mitigate any subjective fears you might have.142. Furthermore you have not shown that you are unable to safely relocate within your country to avoid any localised problems as a result of the historic events, and these only directed against your father. As noted above, it is considered that you can relocate safely and that in your particular circumstances relocation is not considered to be unduly harsh.”[24]The Claimant challenged this decision by way of Judicial Review to the Upper Tribunal. His application for permission was refused by Upper Tribunal Judge Pitt on 29th November 2016, who observed: “The respondent’s decision shows that she applied the correct law to the evidence before her and reached a rational and lawful conclusion that the claims were not made out. The medical conditions he refers to do not come close to meeting the high threshold for an Article 3 medical case. It is difficult to see how there could have been any other outcome to the asylum and human rights claim here or that an appeal could succeed on any legitimate basis. … This was a case which was truly ‘bound to fail’”.[25]Following the dismissal of this challenge, removal directions were set for 30th December 2016. An application for an interim order restraining removal was dismissed but removal did not take place due apparently to the Claimant’s distruptive conduct. On 11th January 2017 removal directions were again set, this time for 31st January 2017. The Claimant’s further submissions[26]On 23rd January 2017, the Claimant’s Solicitors provided further submissions in support of the claims for asylum and humanitarian protection, inviting reconsideration pursuant to paragraph 353 of the Immigration Rules.[27]The evidence relied upon for the purposes of the further submissions was as follows: a) A medical report from Dr Abbas Lohawala dated 23rd January 2017. b) A witness statement from the Claimant himself dated 23rd January 2017. c) A witness statement from MA (the mother of the Claimant’s child) dated 16th January 2017. d) The Claimant’s detainee medical records. e) Rule 35 reports dated 4th October 2016 and 9th December 2016 recording the Claimant’s allegation of torture.[28]The covering letter from the Claimant’s solicitors also contained factual content, including reference to a 2016 Canadian report on the activities of cults and co-fraternities in Nigeria. This report stated that the Nigerian police had made various attempts to curtail their criminal activities, including the arrest and prosecution of both the leaders and individual members. It noted that “in some cases” these investigations had been frustrated, sometimes as a result of political interference. In respect of internal relocation, the Solicitor’s letter asserted that the Claimant could not return to Nigeria at all because he would eventually be found by the cult. No evidence was submitted to support this assertion.[29]Dr Lohawala’s report was based on an interview and examination of the Claimant which had taken place at the beginning of January 2017. Although his primary expertise is psychiatry, Dr Lohawala also has considerable experience of assessing alleged victims of torture including the assessment of scarring. As well as obtaining a general clinical history and assessment, he took a detailed record of the Claimant’s account of the violence which was perpetrated on him in the attack on his shop.[30]Dr Lohawala identified 24 scars to the Claimant’s body. Some of these are relatively minor but there were two linear scars which were consistent with being caused by a bladed weapon. Looking at the overall pattern, Dr Lohawala’s conclusion was that the scarring was “typical” of the type of physical assaults which the Claimant had alleged. Dr Lohawala commented that in his opinion the Claimant presented as a ‘clear victim of torture’.[31]Dr Lohawala also considered the Claimant’s mental health. His diagnosis is that the Claimant is suffering from moderate depression. He did not consider him to be a suicide risk at present. He is not suffering from PTSD although his past experiences have contributed to his depression. He also considered that there were somatic symptoms (complaints of pain which were in fact psychological rather than physical in origin). Dr Lohawala’s view was that a return to Nigeria would cause the Claimant’s mental health to deteriorate because of his fear of return, because he may not access treatment himself and because of difficulties accessing psychological therapy in Nigeria.[32]Within the papers there are two different versions of Dr Lohawala’s report. The second version includes additional conclusions based on questions put by the Claimant’s Solicitors. He was asked “Would any period of further detention (days, a few weeks or a few months) increase exacerbate the client’s mental health?” In reply, he referred to the existing condition, the uncertainties of the asylum process and the fear of return and stated that ongoing detention could therefore worsen his condition. In answer to a further direct question as to whether there was any link between detention and his current mental state, Dr Lohawala gave multi-factoral explanations for the depression but accepted that detention may play a part.[33]As to the other evidence, the statement from MA dealt with her relationship with the Claimant in the UK and had no bearing on the asylum claim. The Claimant’s own statement set out a detailed account of the incident in August 2016 and the Claimant’s fears about return. It contained the assertion that the Claimant had heard that two people had been killed just because they were connected with his brother. The other medical evidence had no bearing on the decision. The response to the further submissions[34]The Defendant responded to the further submissions in a letter dated 29th January 2017. The letter ran to 6 pages. It contained an assessment of the further evidence, but also referred repeatedly back to the original asylum decision. It repeated the four key findings. The Defendant concluded that the further submissions did not alter the conclusion on any of these four grounds.[35]The letter went on to conclude that the representations did not amount to a “fresh claim” for the purposes of Para 353 of the Immigration Rules. It noted that some of the material submitted was material which had already been considered when the earlier claim was dismissed, and therefore was not significantly different. It concluded:
“The remaining points, taken together with the material previously considered in the refusal decision, would not have created a realistic prospect of success before an immigration judge.”
The current proceedings[36]The Claimant issued the present claim for judicial review, initially with a view to preventing his removal on 31st January 2017. At the time the claim was issued, the Claimant was unaware that a decision had already been taken on the further submissions.[37]The Claimant was granted an interim order by Mr Justice Jay on 31st January 2017. By that stage, the decision letter of 29th January 2017 was before the Court, but it had not yet been addressed by amended grounds for judicial review. Mr Justice Jay granted interim relief, commenting on the conclusion of the decision letter:
“It is too short, and does not (at least arguably) adequately explain why the remaining points in the Claimant’s further subs do not have a realistic prospect of success taken individually or cumulatively. I recommend that the Defendant address these concerns before proceeding further.”
[38]A second decision letter was subsequently provided on 11th March 2017. This was a longer letter (13 pages). It included detailed quotations from the October 2016 decision to show that matters had already been addressed in detail. The final conclusion now read:
“Anxious scrutiny has been applied to the remaining points in your submissions and, for the reasons stated above, it is considered that when taken together with the material previously considered in the refusal decision of 14th October 2016 they would not have created a realistic prospect of success before an immigration judge.”
Fresh Claims: The legal framework[39]The effect of the Defendant’s decision that the further submissions do not amount to a fresh claim is that there is no further right of appeal. Para 353 of the Immigration Rules states as follows:
“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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 the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
[40]The parties are agreed as to the relevant legal principles. It is common ground that the decision whether or not to accept the further submissions is distinct from the decision (if the submissions are rejected) whether or not to accept that they amount to a fresh claim for the purposes of Para 353.[41]The Para 353 decision requires the Defendant to determine first whether the material is significantly different from the material already considered. If it is not, the Defendant does not need to go any further. However, if it is significantly different the Defendant then has to consider whether (taken together with the material previously considered) the asylum claim has a realistic prospect of success. That involves judging the potential outcome of tribunal proceedings. It is a low threshold, amounting to the existence of a ‘more than fanciful’ chance of success. As it relates to a risk of persecution, the decision-maker must apply anxious scrutiny. (See: WM (DRC) v SSHD (2006) EWCA Civ 1495; R (Rahimi) v SSHD (2005) EWHC 2838; R (TK) v SSHD (2009) EWCA Civ 1550).[42]In WM, the Court of Appeal confirmed that such decisions are challengeable only on Wednesbury grounds, but that a decision will be irrational if it is not taken on the basis of anxious scrutiny. Buxton LJ held that a court reviewing a decision as to whether a fresh claim exists must address the following matters:
“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 … . The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.”
The parties’ submissions[43]On the Claimant’s behalf, Miss Jaquiss submits that the decision of the Defendant was irrational and/or unlawful for the following reasons: i) failure to apply anxious scrutiny; ii) failure to apply the correct test under Para 353; and iii) irrational conclusions on the issues of internal relocation and sufficiency of protection.[44]The following arguments were advanced. i) Dr Lohawala’s report was was independent evidence to support the claim of torture and therefore the well founded fear of persecution. The decision letters made only brief reference to the report. ii) There is evidence that such cults have political connections and therefore may have the ability to locate and persecute the Claimant further. Even though the Claimant himself is not politically active, he may be persecuted for reasons of family membership (see: K v SSHD; Fornah v SSHD (2006) 3 WLR 733). iii) The defendant did not apply the correct test on Para 353. Miss Jaquiss relied upon the comments made by Mr Justice Jay when granting interim relief. She accepted that the Defendant correctly articulated the test in the decision letter but argued that the decision which followed did not demonstrate its correct application. iv) The Defendant had failed to give proper reasons for concluding that the prospects of success before the Tribunal were no more than fanciful. He had simply adopted his own reasons for dismissing the further submissions (using the formula “for the reasons stated above”). Miss Jaquiss relied upon a passage from the judgment of Laws LJ in R (TK) v SSHD in which he said: “In this case it seems to me that the Secretary of State has not given reasons why in her view the appellant would enjoy no realistic prospect of success before the AIT. If realistic prospect of success means only a prospect of success which is more than fanciful, the Secretary of State has not made it clear that she has adopted that approach. But in relation to reasons Mr Kovats sought to defend the letter by submitting in effect that proper reasoning on the realistic prospect issue may be supplied by paragraphs in the letter earlier than the critical passage at paragraph 21. That, I think, will not do. The Secretary of State's earlier reasoning goes to her overview of the new representations, and it is as it happens to be noted that the decision letter omits express reference to the detention and ill treatment of which complaint was made. In my judgment the standard of reasoning on the second but critical issue arising under Rule 353 was not supplied in the Secretary of State's decision letter in this case.” v) The Claimant’s case is that the decision on internal relocation was irrational. It is not fanciful to suggest that relocation would be infeasible or unduly harsh for this Claimant. Miss Jaquiss drew comparison with the decision in R (FR (Albania)) v SSHD (2016) EWCA Civ 605 where the Secretary of State had failed to consider the reach and political connections of the clans involved in blood feuds in Albania. vi) The diagnosis of moderate depression showed that the Claimant was particularly vulnerable. Relocation would be unduly harsh or unreasonable because mental health difficulties would make it more difficult for him to relocate within Nigeria and/or to obtain access to treatment. vii) The Claimant also relies upon country guidance regarding the deficiencies of the police and legal systems in Nigeria.[45]On behalf of the Defendant, Miss Patry relied upon the following matters. i) The Claimant’s further submissions had failed to address the four separate grounds already given for rejecting the asylum and humanitarian protection claims. ii) Neither the medical evidence nor the witness statements advanced the Claimant’s case on those four issues. iii) The Defendant had already indicated that the decision was taken on the assumption that the claim of torture was true. The medical evidence and the Claimant’s witness statement were addressing issues which were not in dispute. iv) The further submissions contained little if anything which addressed the questions of sufficiency of protection or internal relocation. v) As to the adequacy of reasons, the Defendant relied upon the decision of the Court of Appeal in R (HN (Afghanistan)) v SSHD (2016) EWCA Civ 123 where a similar argument based on Laws LJ’s comments in TK had been advanced. As in the present case, the decision letter had given reasons for rejecting the submissions then in relation to Para 353 had concluded that “for the reasons given” the claims would not create a reasonable prospect of success before an Immigration Judge. The Court (which again included Laws LJ) rejected the submission that this failed to demonstrate adequate consideration. McCombe LJ said: “ I consider that Mr Blundell [Counsel for the Defendant] was right in his submission that it is difficult to see what more the writers could have said. It could hardly have been right to say, after each point had been considered, that the specific point would not present a realistic prospect before a judge. It was not the individual points that mattered but the amalgam of them. I agree with Mr Blundell's submission that the decision-makers' assessment of the appellants' points should properly be read as their assessment of the hypothetical judge's likely reaction to those points in the round, leading to an overall conclusion that the material as a whole did not present a realistic prospect of success before such a judge. Conclusions on the ‘Fresh Claim’ issue[46]Applying anxious scrutiny to these claims, I am satisfied that the complaints both as to the substance of the decision and as to the adequacy of reasons are unfounded.[47]The fundamental weakness of the further submissions was that little (if any) new material was provided to address the four separate grounds on which the claims for asylum and humanitarian protection had already been rejected. As Miss Patry observed, the Defendant only had to be right about one of those four matters for the claims to fail.[48]The Defendant had made it clear in the original decision letter that the decision was being made on the assumption that the Claimant’s factual account was true. Most of the Claimant’s further evidence was therefore incapable of having any impact on the decision. The statement of MA was of no relevance. There was no credible evidence that the Claimant himself had ever been a target of persecution by the gang, nor that he would be likely to be a target should he return.[49]I am satisfied that the evidence of the Canadian report was incapable of demonstrating that there was insufficient protection. In fact, it demonstrated that the Nigerian state was taking action against the criminal activities of cult organisations, albeit that the action was sometimes frustrated.[50]Most importantly, in my judgment, the fresh material did not materially address the issue of internal relocation. The Claimant had done nothing more than make a bare assertion that agents of the group would identify and persecute him should he re-locate to another part of Nigeria. I am satisfied that there is no credible evidence whatsoever that this particular gang have continued to look for him, that they would be motivated to do so in the future, or that they are capable of locating him within other parts of Nigeria. I am satisfied that in the circumstances of the present case the claims are entirely fanciful. I am satisfied that the Claimant’s mental health, which amounts to a diagnosis of moderate depression, does not give rise to a credible claim that it would be unduly harsh to expect him to re-locate in Nigeria. The Claimant is 43 years old and has a good work record. He has demonstrated throughout his adult life that he is resourceful and capable of caring for himself, as he did both in Lagos State and after his arrival in the UK.[51]I am satisfied that the Defendant has demonstrated that anxious scrutiny was given to this decision and that the correct test was in fact applied. The Defendant’s decisions relating to the further submissions, and to the claim as a whole, had been in clear and emphatic terms. For example, paragraphs 15 to 21 shows that the claims were rejected because no evidence had been submitted to support the Claimant’s case.[52]I am satisfied that when the Defendant came to apply the second part of the Para 353 test there was (as in HN) nothing more to say. The letter shows that the Defendant had correctly understood the threshold test. It had already been made clear that the Defendant had decided that the Claimant’s case on the four key issues was totally meritless. In the circumstances of this case, it was therefore acceptable to say that the decision on Para 353 was being taken “for the reasons stated above”. In a case where the detailed reasons already given for the decision were clear and emphatic, already showing that the claims were bound to fail, there was no duty or need to re-state the same points again in relation to the Para 353 decision. The lawfulness of the Claimant’s detention[53]This is a case where the Claimant challenges the lawfulness of detention applying the ‘Hardial Singh principles’ (R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 All ER 983 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12). The Claimant also submits that the Defendant failed to follow his own guidelines on Adults at Risk in Immigration Detention (‘the AAR policy’) and Chapter 55b of the Defendant’s Enforcement Instructions and Guidance (‘EIG’). The legal framework will be discussed in more detail below. To place the Defendant’s decisions in context it is necessary at this stage to consider the AAR policy. The AAR policy[54]The history behind the 2016 guidance on Adults at Risk in Detention is discussed in detail in Medical Justice and others v Secretary of State for the Home Department [2017] EWHC 2461 (Admin). The policy has statutory force pursuant to Section 59 of the Immigration Act 2016. The first version of the policy came into force in August 2016. A revised version came into force on 6th December 2016.[55]In many cases, the trigger for identifying a person as at risk in detention arises from a medical assessment. The ordinary rules of medical confidentiality normally apply, but there are circumstances where a doctor will be under a duty to report concerns to managers. Rule 35 of the Detention Cenre Rules 2001 provides as follows:
“Special illnesses and conditions (including torture claims) 35. —(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention. (2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State. (3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture. (4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay. … .”
[56]The stated purpose of the AAR policy is to reduce the number of vulnerable persons detained in immigration custody, or (for those who are detained) to reduce the duration of their detention pending removal. There is a clear presumption that persons who are identified as ‘at risk’ will not be detained. That does not amount to an absolute prohibition. Detention may still be appropriate if immigration control considerations outweigh the presumption of release and the concerns as to vulnerability. The policy therefore balances the risk of harm against the legitimate objectives of immigration control.[57]Under paragraph 7 of the AAR guidance, a person is recognised as ‘at risk’ if they are suffering from a condition or have experienced a traumatic event “such as trafficking, torture or sexual abuse.”[58]Once a person has been identified as ‘at risk’, the policy goes on to identify the level of that risk. This provides the starting point for the determination of whether the immigration considerations outweigh the risk factors. An important principle is that “… the greater the weight of evidence in support of the contention that the individual is at risk, the weightier the immigration factors need to be in order to justify detention.”[59]Paragraph 9 of the policy sets out the three levels of risk and the basis of assessment. It states as follows: “9. Once an individual has been identified as being at risk, consideration should be given to the level of evidence available in support and the weight that should be afforded to the evidence in order to assess the likely risk of harm to the individual if detained for the period identified as necessary to effect their removal:• a self-declaration of being an adult at risk – should be afforded limited weight, even if the issues raised cannot be readily confirmed. Individuals in these circumstances will be regarded as being at evidence level 1• professional evidence (e.g. from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is an adult at risk – should be afforded greater weight. Individuals in these circumstances will be regarded as being at evidence level 2• professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm – for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk – should be afforded significant weight. Individuals in these circumstances will be regarded as being at evidence level 3."• a self-declaration of being an adult at risk – should be afforded limited weight, even if the issues raised cannot be readily confirmed. Individuals in these circumstances will be regarded as being at evidence level 1• professional evidence (e.g. from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is an adult at risk – should be afforded greater weight. Individuals in these circumstances will be regarded as being at evidence level 2• professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm – for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk – should be afforded significant weight. Individuals in these circumstances will be regarded as being at evidence level 3."[60]The Defendant has also provided guidance on when detention of an ‘at risk’ person would be justified at each of the three levels. In outline the guidance as to the requirements to be met is as follows: i) Level 1 cases• the date of removal can be forecast with some certainty and if this date is within a reasonable timescale given the logistics involved• any public protection issues are identified, for example, someone whose presence in the UK is not conducive to the public good• there are indicators of non-compliance with immigration law which suggest that the individual will not be removable unless detained ii) Level 2 cases• the date of removal is fixed, or can be fixed quickly, and is within a reasonable timescale and the individual has failed to comply with reasonable voluntary return opportunities, or if the individual is being detained at the border pending removal having been refused entry to the UK• they present a level of public protection concerns that would justify detention, for example, if they meet the criteria of foreign criminal as defined in the Immigration Act 2014 or there is a relevant national security or other public protection concern• there are negative indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained iii) Level 3 cases• removal has been set for a date in the immediate future, there are no barriers to removal, and escorts and any other appropriate arrangements are (or will be) in place to ensure the safe management of the individual’s return and the individual has not complied with voluntary or ensured return• the individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence, or there is a serious relevant national security issue or the individual presents a current public protection concern It is very unlikely that compliance issues, on their own, would warrant detention of individuals falling into this category. Non-compliance should be taken into account if there are also public protection issues or if the individual can be removed quickly. The decision to detain[61]The Claimant was detained on the grounds of his poor immigration history. Other than breach of immigration control, there is not (and never has been) any suggestion of a public protection risk in this case. He was assessed at the outset as a high risk of absconding. Miss Jaquiss concedes that the initial decision is not open to challenge.[62]The Claimant was initially held at the Verne Immigration Removal Centre. He was assessed by a nurse on reception. The notes state:
“No current indication/evidence of risk. Suitable for multi-cell location … Engaged well, good eye contact, seemed quite frustrated but polite; no suicidal thoughts, no thoughts of self harm.”
[63]On 23rd August 2016, the Nigerian High Commission confirmed that they would issue an ETD. At that stage, there were no barriers to removal.[64]On 26th August 2016, the Claimant was seen by a General Practitioner. He said that he was depressed and worried. He was prescribed anti-depressants. The GP did not issue a Rule 35 report.[65]As noted already, the asylum claim was first made on 2nd September 2016. At the conclusion of the screening interview on 23rd September 2016 the Claimant was asked directly if he felt safe in his accommodation at the IRC. He said he felt safe and had no issues. He was asked about his mental health and he said “Everything is ok at the moment”.[66]In the meantime, the Detention Reviews show that assessments were made of the ongoing risk of absconding. These documents follow a standard format: the first part sets out the assessments made by the reviewing officer and their recommendation; the second part sets out the decision of the authorising officer and the reasons for it. Ultimately the decision to detain is made by the authorising officer, who may or may not agree with the reviewing officer’s assessments and/or recommendation.[67]In this case, the earlier Detention Reviews show that the reviewing officers assessed the Claimant to be a ‘high risk’ of absconding. However, from 20th September 2016 onwards the assessments of risk of absconding changed (at least for a time) to ‘medium’. There was no explanation for this change and on the face of it there had not been any new evidence or material change in circumstances. Miss Jaquiss relies upon this as important evidence as to whether or not it was appropriate to maintain detention.[68]However, in stating the reasons for their decisions, the authorising officers used more forceful language to describe the risk of absconding. The following are examples of the authorising officers’ comments from the reviews: 20.09.2016:
“The applicant has a poor immigration history which includes overstaying thereby demonstrating a propensity to breach the Immigration Rules and encounter by chance at which point he attempted to employ deception by providing false details. It is not considered the applicant would have brought himself to the attention of the authorities of his own volition. The applicant only claimed asylum after being detained. The asylum claim is considered to be late and opportunistic to frustrate removal. Given the circumstances the applicant is considered to be a significant absconder risk.” 22.09.2016: “I have little doubt that the detainee constitutes a significant absconder risk … his adverse immigration history means removal is unlikely to proceed without the use of detention” 05.10.2016: “… highly unlikely to maintain contact with the Home Office were he to be released. …A substantial risk of absconding”. 14.10.2016: “Unlikely to be removed unless detained. … There are negative conditions of non-compliance … which suggest that he is highly unlikely to be removable unless detained.”
On behalf of the Defendant, Miss Patry emphasises (a) the underlying evidence (b) the determinations of the authorising officers, which suggest a conclusion of ‘high risk’; and (c) the absence of a change in circumstances.[69]On 4th October 2016, the Claimant underwent a further medical assessment. This time a Rule 35 report was issued. The doctor recorded the Claimant’s account that he had been attacked by a gang with weapons. A scar was noted to the back of the Claimant’s head. The doctor’s assessment was that this injury was consistent with a history of abuse.[70]The significance of the Rule 35 report is that it triggered consideration of the AAR policy. The guidance in force at that time was the original August 2016 version.[71]Under the AAR policy, one of the factors which may indicate that a detainee is particularly vulnerable in detention is a history of torture. The August 2016 version of the AAR policy adopted a definition of torture derived from Article 1 of the United Nations Convention against Torture (‘UNCAT’). However, this definition (which focussed in particular on the circumstances in which the torture was infliced, and the involvement of ‘public officials’) was later found unlawful because it was insufficiently broad (see: Medical Justice at paras 146 to 177, applying EO and others v Secretary of State for the Home Department [2013] EWHC 1236 (Admin)).[72]In this case, when the Rule 35 report was first considered by the Defendant in October 2016, it was decided that the Claimant’s case fell only within Level 1 of the policy. Although the Rule 35 report provided professional support for the Claimant’s allegation it was determined that it did not amount to a case of torture within the UNCAT definition.[73]In the light of the decision of Ouseley J in the Medical Justice case, it is common ground that this determination was incorrect and that consequentially the Claimant was at that point unlawfully detained. However, the Defendant’s case is that in reality no detriment resulted because, had the policy been correctly applied, the Defendant could and would have lawfully detained the Claimant in any event. The Defendant therefore submits that only nominal damages are appropriate.[74]Returning to the chronology, on 19th November 2016, the Defendant conducted an “assurance review” in respect of the Rule 35 report. It is unclear what triggered this review but the consequence was that the decision was revisited. The assessment under the AAR guidelines was changed to Level 2. The letter of that date which communicated the decision said as follows:
“An assurance review was completed on 19/11/2016. It is noted that the doctor raised a concern, noted physical trauma and sleep problems and stated that your injuries are consistent with your history of abuse. Therefore Adults at Risk level 2 is engaged. Consideration is given to your immigration history: there are negative indicators of non-compliance (overstayer, false identity given when encountered, late opportunisitc claim for asylum) which suggest that you are highly unlikely to be removeable unless detained. The decision to maintain detention is upheld.”
[75]The consequence was that from this point onwards the Defendant was considering the Claimant’s case within Level 2.[76]As already noted, removal directions were originally set for 30th December 2016 but the Claimant’s disruptive conduct frustrated his removal. Removal directions were then set for 31st January 2017. The Claimant’s further submissions, which included Dr Lohawala’s report, were received on 23rd January 2017. The Order of Mr Justice Jay prevented the Claimant’s removal on 31st January 2017. The amended grounds for Judicial Review were served on 7th February 2017.[77]The Defendant’s evidence (through the statement of Mr Jagpal) is that steps were taken to consider whether it would be possible to expedite the hearing of the Judicial Review. When it became apparent that this was not feasible, the Defendant decided to release the Claimant on 22nd February 2017. The Law[78]The Claimant was detained pursuant to Section 4(2) and Schedule 3, Paragraph 2 of the Immigration Act 1971. The burden of proving that detention was justified falls on the Secretary of State. In reviewing that decision, it is for the Court to decide whether the legal boundaries of detention have been exceeded albeit attaching weight to any determinations of fact which the Secretary of State has made (see: R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at para 62).[79]The power to detain is subject to the ‘Hardial Singh’ principles (R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 All ER 983 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12). The four key principles are as follows: i) the Secretary of State must intend to remove or deport the detainee and can only use the power to detain for that purpose; ii) the detainee 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 removal or deportation within a reasonable period, he should not seek to continue to exercise the power of detention; and iv) the Secretary of State should act with reasonable diligence and expedition to effect removal. In the present case, the Claimant alleges that the second, third and fourth principles were breached.[80]What amounts to a reasonable period depends on all the circumstances of the case. Relevant factors may include: the length of the period of detention; the nature of the obstacles to removal; 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 the detainee; the risk of absconding; and any risk of offending. It has long been recognised that mental illness can be a significant factor in determining whether detention is appropriate, and if so for how long (see for example R (Das) v SSHD (2014) EWCA Civ 45).[81]This is a case where the Defendant has relied in particular on the risk that the Claimant would abscond unless he was detained. That is an issue which has been considered by the Court of Appeal in a number of cases (for example R(I) v SSHD (2002) EWCA Civ 888 at paras 27 to 29 and 49)). In Fardous v SSHD (2015) EWCA Civ 931, Lord Thomas CJ said:
“44. It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case. … 45. Although the risk of absconding will therefore always be of paramount importance, a very careful assessment of that risk must be made in each case, as the magnitude of that risk will vary according to the circumstances. It may be very great, for example, where the person has, as in this case, a clear track record of dishonesty and a knowledge of how to “work” the controls imposed to regulate immigration in the European Union. Another example where the risk may be high is where the person refuses voluntary repatriation that is immediately available to him. It is important to emphasise that the risk of absconding is distinct from the risk of committing further offences and not dependent on that further risk. The risk of re-offending requires its own distinct assessment. 46. However, as is accepted on behalf of the Secretary of State, the risk of absconding cannot justify detention of any length, as that would sanction indefinite detention. It is therefore not a factor that invariably “trumps” other factors, particularly the length of detention. It is nonetheless a factor that can, depending on the circumstances, be a factor of the highest or paramount importance that may justify a very long period of detention.”
[82]Where (as in this case) the Defendant contends that a public law error did not lead to any compensatable loss because the Claimant would have been detained anyway, it is for the Defendant to prove on the balance of probabilities that he both could and would have lawfully detained the Claimant in any event (see: R(EO) v SSHD (2013) EWHC 1236 (Admin) at paras 70 to 74). The parties’ submissions[83]Both parties submitted that the lawfulness of detention should be analysed by reference to three periods: Period(1) 28th July 2016 to 5th October 2016 (from initial detention to the issue of the first Rule 35 report); Period(2) 6th October 2016 to 9th December 2016 (from then until the issue of the second Rule 35 report); and Period(3) 10th December 2016 until 22nd February 2017 (from then until the date of actual release). It is common ground that the Claimant’s detention during the second period above was unlawful on the grounds that the Defendant had wrongly failed to identify the Claimant as a potential victim of torture, having applied the UNCAT definition contained in the August 2016 policy (found unlawful in Medical Justice). The Defendant’s case is that no material detriment was suffered because the Defendant could and would have lawfully detained the Claimant in any event. The Defendant therefore submits that nominal damages only are appropriate.[84]The Claimant’s case is as follows: i) In respect of Period (1) it is conceded that the initial detention was lawful. However, the medical assessment on 26th August 2016 should have triggered a Rule 35 assessment and/or consideration of whether the Claimant was an ‘adult at risk’. It is also submitted that there was a pre-judgment of the merits of the asylum claim, which in itself identified the Claimant as a potential victim of torture. ii) In respect of Period (2), it is argued that the failures were material. The Claimant submits that detention could no longer be justified under the AAR policy and/or that there is a real possibility that the Claimant would have been released had the Defendant correctly applied the policy. On risk of harm from detention, the Claimant invites me to consider whether a proper reading of the Rule 35 report should have led to the conclusion that the case should have been assessed at Level 3 (ie. professional evidence that he was in fact at risk). In assessing the negative indicators, the Claimant points to assessments made at that time that he was only a medium risk of absconding, and also to the principle that risk of absconding is not a ‘trump card’. iii) In respect of Period (3), the Claimant’s case is that the second Rule 35 report showed that the Claimant’s mental health was deteriorating. In any event, by the time of Dr Lohawala’s report (submitted on 23rd January 2017) there was clear professional evidence that ongoing detention could worsen his mental health. The Claimant should have been assessed at Level 3 of the AAR policy. Applying the guidance, a risk of absconding was not sufficient grounds for detention. Removal could not be said to be imminent in the light of the Order of 31st January 2017. iv) The overall period of detention (6 months and 25 days) was unreasonable in all the circumstances.[85]The Defendant’s case is as follows. i) The Defendant was entitled to conclude that the Claimant was a high risk of absconding. Even on the Claimant’s own case he had lied to immigration officers at the time of arrival, he had failed to raise any claim of asylum until nearly three years after his arrival and five weeks after his detention, he had overstayed, he had failed to contact immigration services, he had run away from the police to avoid being returned to Nigeria and he had given false details when encountered to avoid his detention. Detention was therefore justified because it was highly likely that the Claimant would otherwise abscond to frustrate his removal to Nigeria. ii) The August 2016 medical assessment did not give rise to any concern that the Claimant’s mental health was likely to be deteriorate because of his detention. iii) In Period (2), detention was justified both on the grounds that the Claimant’s removal was going to take place within a reasonable timescale and also because the Claimant was highly unlikely to be removable unless detained. The references to the Claimant being a medium risk of absconding were not definitive. The Court should have regard to the clear evidence that the authorising officers regarded the Claimant as highly likely to abscond. iv) The fact that Defendant maintained the Claimant’s detention even after his case had been re-assessed at Level 2 is clear evidence that he could and would have done so had the issue been properly addressed on 6th October 2016. v) In respect of Period (3), the Defendant submits that the second Rule 35 report supported an assessment at Level 2. By the time of Dr Lohawala’s report, removal was imminent in any event. Miss Patry submits that Dr Lohawala did not suggest that a short period of detention was likely to cause significant harm, therefore the report did not justify an assessment at Level 3 of the policy. vi) The Order of 31st January 2017 did no more than prevent his removal that night. The Defendant acted with reasonable diligence and expedition. At that stage, the Defendant was awaiting receipt of the amended grounds for judicial review, and thereafter acted reasonably in taking advice on whether the judicial review could be expedited. The Claimant was released as soon as it became clear that the Claimant was not going to be quickly removed. Conclusions on the lawfulness of detention[86]In my judgment, the decision to detain the Claimant in Period (1) was wholly justified. Miss Jaquiss argues that the decision should have been reviewed following the GP appointment on 26th August 2016. However, the Defendant cannot be imputed with knowledge of what took place at a confidential medical appointment. I am satisfied that the proper inference from the fact that a Rule 35 report was not issued is that the GP was not concerned that the Claimant would be injuriously affected by detention. I also reject the submission that the Defendant pre-judged the outcome of the asylum claim: once the asylum claim had been made, the Defendant was in fact under a duty to assess the impact which it might have on the likely duration of detention.[87]In respect of Period (2), detention was unlawful because of the failure to recognise that the Claimant was a victim of torture. It was not a Level 3 case at this stage. I am satisfied that, had the AAR policy been correctly applied, the decision to detain the Claimant could and would have been lawfully made. Notwithstanding the references by reviewing officers to moderate risk, when the Detention Reviews are read as a whole it is clear that the authorising officers consistently determined that the Claimant was highly likely to abscond if released.[88]The decision letter of 19th November 2016 provides clear evidence that the Claimant would have been detained in any event, and this was confirmed again by the determination on 9th December 2016. In my judgment, the Claimant is entitled to no more than nominal damages in respect of this period.[89]In respect of Period (3), I am satisfied that detention was reasonable and lawful. At the time the reviews took place, the Defendant was entitled to conclude not only that the Claimant was highly likely to abscond but also that removal was going to take place quickly. Removal would in fact have taken place on 30th December 2016 had it not been frustrated by the Claimant.[90]Dr Lohawala’s report does not clearly place the Claimant’s case within Level 3. He did not explicitly address the question of whether a short period of further detention would have a significant effect on the Claimant’s health. Even if it did place him within Level 3, it is relevant then to look at the substance of his findings. The diagnosis was moderate depression, which was already being treated, and there was no suicide risk. Dr Lohawala concluded that detention had some effect but it was not (of itself) the cause, or main cause, of the ongoing illness. In my judgment, the Defendant was entitled at that stage to maintain detention within the terms of the AAR policy even at Level 3 on the grounds that the Claimant could be removed quickly and there were strong concerns about compliance. It was reasonable to maintain that position until it became clear that the Claimant’s removal could not be expedited.[91]I am satisfied that the overall period of detention was reasonable in the circumstances and that it did not breach any of the Hardial Singh principles. Overall Conclusions[92]For the reasons stated, my conclusions are as follows: i) the claim for judicial review in relation to the ‘fresh claims’ decision is dismissed; ii) in respect of Period (1), I find that the Claimant’s detention was lawful throughout; iii) in respect of Period (2), it is common ground that the Claimant’s detention was unlawful but I find that he is entitled to no more than nominal damages; and iv) in respect of Period (3), I find that the Claimant’s detention was lawful throughout.