Ashraf v Secretary of State for the Home Department

This case came to me as the out of hours judge on 19 November 2013. It was an application lodged earlier in the day for interim relief against the removal of the claimant to Pakistan. Because the Secretary of State had not responded to the most recent representations advanced on the claimant’s behalf, and given the character of the representations (a recent medical opinion that he may have been tortured), I granted interim relied but ordered that the parties appear at a hearing on 27 November so that the basis of the application, and the future of the judicial review, could be explored.

There was another reason for the hearing. The papers for the judicial review requesting interim relief were filed during the day in the Administrative Court. Yet with the transfer to the Upper Tribunal of much of the immigration/asylum judicial review work from 1 November, under a Direction of the Lord Chief Justice, the matter could have been lodged there. The apparent justification for proceeding in the Administrative Court was that one aspect of the claim alleged that the claimant had been unlawfully detained. Unlawful detention cases remain with the Administrative Court as one of the exceptions after the transfer of other judicial review immigration business to the Upper Tribunal. As I will explain there was never any basis for the unlawful detention claim in this case. Under established principle it could well be an abuse of process of the Administrative Court should judicial reviews be filed here, rather than in the Upper Tribunal, when there is no obvious distinct merit in the unlawful detention claim.

The claimant, almost 50 years old, is from Pakistan. He had been to the United Kingdom as a visitor on a number of occasions. He said he last entered the country in October 2010. He had been granted entry clearance as a family visitor. He overstayed. In May 2011 he was arrested while driving a friend’s car. The following day he claimed asylum, alleging a fear of persecution because he had refused to join Al Qaeda. He said that he had been kidnapped by members of Al Qaeda, ill-treated, but escaped. He stated that he had been hit on the head with a stick. He was physically harmed to the back of his head and to his backside. The following month he was seen by Freedom From Torture but no medical report was possible because he could not offer a clear and coherent account of his ill-treatment. The Secretary of State eventually refused his asylum application.

In September 2011 the claimant had been seen by a psychiatrist because he was depressed. He was prescribed anti-depressant medication. In February 2013 he was assessed by Dr Hajioff, a psychiatrist. Dr Hajioff recorded the claimant’s account of Al Qaeda mistreatment and that he was agitated on presentation. Dr Hajioff opined that the claimant had depression and PTSD. Dr Hajioff stated that the scars to the claimant’s head could have many causes. He did not believe that the fissures to his tongue were caused by having hot water poured in his mouth. However, Dr Hajioff said that his injuries were consistent with his account as to how he had been assaulted.

Meanwhile, the Secretary of State had refused the claimant’s asylum claim. He appealed and in March 2013 the matter came before Judge Sacks in the First tier Tribunal. The claimant was represented and gave evidence. The judge did not find his account of kidnap, torture and escape from Al Qaeda as credible. The judge noted at the outset of his findings that before him the claimant said that he could not remember things but just a few weeks before, and on previous occasions, he had gone into his ill-treatment in detail. In any event, the judge concluded that the claimant’s accounts were fraught with inconsistencies and anomalies. The judge examined these with thoroughness. For example, the claimant gave four different accounts of his detention and escape from Al Qaeda. He was inconsistent as to when he travelled to the United Kingdom. At the screening interview he had not even mentioned Al Qaeda; he told officials that he sought asylum because of a property dispute.

The judge also found that it was not credible when it came to the claimant’s account of having destroyed his passport, his ignorance of the procedure to claim asylum and his divorce (one account being that he divorced to minimise the risk to his wife). The judge did not accept that a number of the documents he relied upon were genuine. He had said he had no family in the United Kingdom but his family had been the basis of his application for entry clearance. The judge referred to the report the previous month of Dr Hajioff, who had rejected the account of some of the injuries. His account to Dr Hajioff of his torture was different from what he had said previously. The judge praised Dr Hajioff for his objective assessment but considered that other parts of the medical report had to be discounted because the account on which it was based were not credible. In any event, the judge concluded, the claimant could internally relocate in Pakistan.

Permission to appeal was refused by both the Designated Judge Digney and by the Upper Tribunal Judge O’Connor. Both judges considered that Judge Sacks had considered the matter carefully and in accordance with law. As Judge O’Connor put it, Judge Sacks had given clear reasons as to why he considered the claimant’s evidence to be untruthful. By the end of May 2013 the claimant’s appeal rights were exhausted.

On 18 June 2013 the claimant submitted further representations through his then solicitors. A week later the Secretary of State rejected them as a fresh claim since they were not sufficiently different from those lodged earlier. On 4 July the claimant was detained for the purposes of removal and served with the refusal of his further submissions. In mid July there was a short Rule 35 report by a medical examiner at the immigration removal centre. It recorded that the claimant may have been tortured and stated his claims that he had been cut on his tongue, beaten with sticks and electrocuted.

In late July the claimant was served with removal directions to take effect on 21 August 2013. He refused to attend an interview at the Pakistani High Commission to obtain an emergency travel document, resulting in the cancellation of the removal directions. On 20 August the claimant had started shouting at a staff member that he would not kill people in the United Kingdom or blast bombs. An employee of the contractor at the removal centre, Serco, noted that he was in a PTSD trance. He was sent to Hillingdon hospital and presented as being unresponsive and having twitches. Half an hour later, he was well again and returned to the centre. Then on 24 August he banged his head on a toilet seat.

On 13 August the claimant had instructed his current solicitors. The solicitors were granted investigative help funding by the Legal Aid Agency with regard to the issue of unlawful detention, relating to the claimant being detained and a victim of torture. Investigative help is one of the two forms of legal representation, the other being full representation. Investigative help is only available where the prospects of success are unclear and is a preparatory step before the grant of a full representation certificate. The solicitors sent the Secretary of State a pre-action letter on 22 August, in which they raised the issue of torture, drawing attention to the Rule 35 report and to the fact that he had been seen by Freedom From Torture in June. On that basis, the letter submitted, there was independent evidence of his torture and he should be released. On 7 October the Secretary of State responded to the solicitor’s letter. She rejected as a fresh claim the further submissions as a result of the Rule 35 report. She noted that there had been regular detention reviews during the claimant’s detention at the removal centre.

Removal directions were set for the end of October. On 25 October the claimant’s solicitors wrote that, because of concerns over his mental health, the claimant was unfit to fly. The solicitors had been seeking a full medical report. The claimant then filed a judicial review of his own volition. The application has been retrieved from storage. The grounds were that he faced serious threats from Al Qaeda in Pakistan, his family had been brutally murdered and his wife’s family had also been brutally murdered. This was new. The details of the remedy he sought included a stay on removal, leave to remain in the United Kingdom and a declaration that his detention was unlawful. Various death certificates were attached. Walker J refused the application on the ground that the claimant’s submissions had been considered and rejected.

Dr Charmaine Goldwyn prepared a medico legal report on the claimant on 14 November. Since her retirement from general practice in the early 2000s, Dr Goldwyn has written many reports as a volunteer doctor for Medical Justice. In the report Dr Goldwyn recounted the claimant’s account of having been tortured by Al Qaeda, noted that the claimant’s heumaturia was not necessarily attributable to his torture, and referred to the incident where he had been sent to Hillingdon hospital. Dr Goldwyn expressed the opinion that the claimant suffered from PTSD with psychotic features and depression, but did not possess the clinical picture of bipolar disorder or schizophrenia. His overall clinical picture was highly compatible with having experience severe trauma.

Dr Goldwyn stated that the discrepancies in the claimant’s accounts were, from a medical point of view, unsurprising in the context of someone who had been severely tortured, especially if the maltreatment included sexual torture such as rape. The claimant had had great difficulty in giving her an account of his experiences but, in her view, fragmented and discrepant accounts were common in those who had been severely tortured or badly traumatised, as the research evidence suggested. The overall pattern of scarring was typical of injuries caused by assault, including the assaults he had described, and its quality was compatible with the claimant’s account of being beaten. Scars to the head could have been caused either by assault or self harm, although the large number of cuts and the wide distribution over the head suggested assault as the cause. The marks to the groin were consistent with burns from a hot or corrosive liquid. The claimant was at a high risk of suicide and was unfit to fly.

For some reason Dr Goldwyn’s report did not reach the claimant’s solicitors until 18 November. Her report was forwarded to the Secretary of State that day with further representations. These majored on the support which the report gave to the solicitors’ assertion that the claimant was unable to put forward a consistent or complete account of events due to the torture and trauma he had suffered. That, it was asserted, cast new light on the findings of Judge Sacks. The claimant had not embellished his account and had continued to state the same facts throughout. Following on Dr Goldwyn’s findings about his suicide risk and fitness to fly, the letter submitted that the claimant should not be removed without further notice.

The following day, 19 November, the claimant’s solicitors filed an application for urgent interim relief in the Administrative Court and served it on the Secretary of State. The claimant’s removal had been fixed for 21.50 that evening. The grounds quite properly disclosed the previous application for interim relief and its refusal by Walker J. Ground 1 was that the decision to remove the claimant when there were outstanding further representations, i.e. those based on Dr Goldwyn’s report, had not been addressed. Ground 2 was that the decision to remove the claimant at that time was unlawful because he was not fit to fly. Reference was made to the Rule 35 report, the claimant’s behaviour in detention (the flashback, the shouting and the banging of his head) and to Dr Goldwyn’s report about his fitness to fly and his suicide risk.

There was also a Ground 3, that the claimant was subject to unlawful detention. The allegation here was that detention had become unlawful from 16 July following the Rule 35 report. Dr Goldwyn had opined that the claimant was a victim of torture. Reference was made to R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 and that the burden shifted to the Secretary of State to show that there was a lawful justification for detaining the claimant. The claimant was mentally unwell and presented as a victim of torture. Since he was unfit to fly and a victim of torture he should not be detained.

Late in the afternoon the matter came to me as the out of hours judge since no reply had been received from the Secretary of State to the solicitors’ representations of the previous day. Partly on that basis, but partly also because of the issues raised in Ground 3, I granted interim relief but ordered a hearing on 27 November. At the hearing there was some argument about why matters needed to be placed before an out of hours judge. There is no doubt that if the solicitors had received Dr Goldwyn’s report on 14 November, or the following day, there would have been no need for that course. The solicitors could give no explanation as to the delay. As to the delay on 18 and 19 November, the evidence is that the solicitors served one arm of the Secretary of State at 19.05 on 18 November. In the absence of further evidence about whether this was or was not appropriate I cannot conclude that the course they adopted was wrong.

There is one matter I should deal with at this point. The application for interim relief before me did not contain Judge Sacks’ decision. This was a serious breach of the duty of disclosure owed to the court since, in this case, the findings of the judge were central to consideration of the application. At the hearing it was accepted that this was an unintentional omission and arose because of the urgency with which the application had to be filed. On this occasion, because of the apology proffered at the hearing, the matter need go no further.

On 25 November 2013 the Secretary of State replied at length to the fresh representations advanced by the claimant’s solicitors on 18 November. The letter analyses the reports of both Drs Hajioff and Goldwyn. The letter explains how the details of the alleged torture provided to the two doctors varied and how those accounts varied also from what the claimant had told the Home Office and Judge Sacks. Thus it could not be asserted, as the solicitors had done, that the claimant had not sought to change or elaborate his account. Moreover, despite her statement to the contrary, Dr Goldwyn appeared to have taken the claimant’s account at face value. The letter said that her opinion that the inconsistencies between his accounts were attributable to his post traumatic stress disorder had to be set alongside the fact that a significant number of the credibility issues identified by Judge Sacks were present, irrespective of those inconsistencies.

The Secretary of State’s letter then noted that while the claimant had told Dr Goldwyn that he had self-harmed by way of banging his head on a wall with his hands and cutting his scalp with razor blades, he had not mentioned that to Dr Hajioff. There was a possibility that the injuries which both doctors had attributed to external causes had been a result of his own actions. The letter noted that neither doctor had referred to the possible age of the injuries they had observed. The Secretary of State accepted that the claimant had mental health problems. However, she did not accept for the reasons previously given that the claimant had ever been subjected to torture. There were no substantial grounds for believing that there was a real risk that the claimant would be harmed on return to Pakistan. The claimant’s further representations did not constitute a fresh claim.

The claimant submitted amended grounds on 26 November. Ground 1 is now that the Secretary of State erred in law in her approach to considering the fresh representations in the light of Dr Goldwyn’s report. No reasonable consideration had been given to the impact of the claimant’s PTSD and depression upon his ability to present a consistent account. Ground 2 is that the claimant is subject to unlawful detention. As a victim of torture the victim should not be detained. The ground in the original claim about fitness to fly was abandoned. That followed the Secretary of State’s assurance in the 25
November letter that the claimant will not be removed unless assessed as well enough to undergo the flight to Pakistan.

On behalf of the claimant Mr O’Callaghan submitted that ground 1 of the amended claim was advanced on the basis that the Secretary of State had failed to engage with Dr Goldwyn’s medical report. Independently of her report there is no dispute that the claimant did experience the flashback related to PTSD in August. The issue raised is what may be the cause of the trauma underlying that PTSD. Dr Goldwyn has expressed the view that because severe trauma can follow a “dissociative episode”, and because it resulted in a flashback when recounting the history of torture, the medical evidence is at least persuasive that severe trauma had occurred. The Secretary of State had not given reasonable consideration to the impact of the claimant’s PTSD and depression upon his ability to present evidence. Consequently, she had failed properly to consider whether the fresh representations constituted a fresh claim.

In my view this ground is unarguable. The Secretary of State’s letter of 25 November is a careful and considered response to the representations advanced by the claimant’s solicitors. Perhaps its character reflects the fact that it was to be considered at the hearing before me on 27 November. In any event, there is simply no basis on which I can conclude, in accordance with the established jurisprudence, that it was Wednesbury unreasonable for the Secretary of State to conclude that the further submissions, taken together with the previously considered material, did not create a realistic prospect of the claimant succeeding before an Immigration judge, bearing in mind the need for anxious scrutiny: R (on the application of WM(DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495; R (TK) v Secretary of State for the Home Department [2010] EWCA Civ 1550; MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193.

In particular, the Secretary of State considered Dr Goldwyn’s report but concluded that it was based upon matters in respect of which the claimant’s account has been rejected. The letter exposed the numerous inconsistencies in his account but also made the important point that it was not just these which went to his credibility. His account was untruthful in other ways as well. The letter also considers the PTSD. The letter did not dispute that the claimant has a mental illness but concludes that his depression and anxiety arose from an account of torture which was not credible. In particular the Secretary of State did consider the PTSD and depression. The test for fresh claims was considered in the letter; it was correctly set out and applied.

At the hearing Ms Bretherton characterised Dr Goldwyn’s report as medical advocacy. In this regard it is helpful to recall the wise words of Collins J (sitting with Mr GMG Ockleton and Mr Drabu) in the Immigration Appeal Tribunal in AE FE (PTSD-Internal Relocation) Sri Lanka [2002] UKIAT 05237.

“[The doctor’s] expertise and qualifications do not necessarily mean that his views must be accepted without question. The [Tribunal] is accustomed to receiving reports from psychiatrists which indicate that the asylum seeker in question is suffering from depression or PTSD or both. That there should be a large incidence of PTSD in asylum seekers may not perhaps be altogether surprising, although we are bound to comment that what used to be considered a relatively rare condition seems to have become remarkably common. Asylum seekers may be found not to be refugees and in many cases account when tested before adjudicators are found to lack credibility. But many who try to come to this country have suffered at least deprivation and poverty and may well have suffered ill-treatment or discrimination which does not amount to persecution or persecution for a Convention reason. They are all desperately anxious not to have to return to their country of origin and may well have spent large sums of money they and their relations can ill afford to get here. It is hardly surprising that they should suffer at least depression so long as their situation is not settled and there is a real chance that they may be refused entry and returned.”

Later Collins J said:

“Doctors generally accept the account given by a patient unless there are good reasons for rejecting it or any material part of it. That is not and is not intended to be a criticism. There is no reason why a doctor should necessarily probe the history or approach his patient’s account in a spirit of scepticism. But this does not mean that the doctor’s conclusions will sometimes be seen to be flawed if it transpires that the account is not credible.”

Another experienced judge, Ouseley J, returned to the issue in HE (DRC – credibility and psychiatric reports) DRC [2004] UKIAT 00321. It is worth quoting what he said at some length:

“17.

A particular difficulty arises in the contention that a report should be seen as corroborating the evidence of an applicant for protection. A doctor does not usually assess the credibility of an applicant; it is not usually appropriate for him to do so in respect of a patient or client. That is in any event the task of the fact- finder who will have often more material than the doctor, and will have heard the evidence tested. So for very good and understandable reasons the medical report will nearly always accept at face value what the patient or client says about his history. The report may be able to offer a description of physical conditions and an opinion as to the degree of consistency of what has been observed with what has been said by the applicant. But for those conditions, eg scarring, to be merely consistent with what has been said by the applicant, does no more than state that it is consistent with other causes also. It is not common for the phrases which indicate a higher probative value in the observed conditions to be used. That limits the weight which can be afforded to such a report when judging the credibility of the claim. Rather than offering significant separate support for the claim, a conclusion as to mere consistency generally only has the effect of not negating the claim.

18.

Where the report is a psychiatric report, often diagnosing PTSD or some form of depression, there are often observations of behaviour at the interview, and a recounting of the answers given to questions about relevant conditions eg dreams and sleep patterns. Sometimes these answers are said to be consistent with what has been set out as the relevant history of the applicant. It is more difficult for the psychiatrist to treat what he observes as objectively verified, than it is for the description of physical conditions, because they are the more readily feigned; it is rare for a psychiatrist's report to be able to indicate that any part of the observations were undertaken in a way which makes them more objectively verifiable. It is the more difficult for there to be any verification of conditions which the psychiatrist cannot observe and for which he is wholly dependant on the applicant. The further major problem with the contention that a psychiatric report can be used to support an applicant's claim to have told the truth about the history, is that there are usually other obvious potential causes for the signs of anxiety, stress and depression. These include the fact that the applicant may be facing return to the country which he has left, at some expense to himself and family, and it may well not be a pleasant place to which to return. He may face the loss of friendships and lifestyle which he has enjoyed in the United Kingdom. There may be a loss of family contacts and of medical treatment. He may anyway suffer from some depression, without having been ill-treated in a way requiring international protection. He may have experienced difficulties other than those which he relies on for his claim. But it is very rare, and it will usually be very difficult, for a psychiatrist to assess such other factors without engaging in the process of testing the truth of what the applicant says. This is not his task and if there is a therapeutic side to the interview, it may run counter to those aims as seen properly by the doctor.

19.

Accordingly, the part which a psychiatric report can play in assisting the assessment of credibility is usually very limited indeed. It will be even rarer for the report to be or contain a factor which is of real significance in the assessment. Where the report merely recounts a history which the Adjudicator is minded to reject, and contains nothing which does not depend upon the truthfulness of the applicant, the part which it can play is negligible. In any event, and importantly, the report is unlikely to have considered other causes for what has been observed, or the possible diagnosis, if any, if the history is untrue. We must illustrate that in this case.”

In this case Judge Sacks had reached clear and comprehensive findings about the claimant’s lack of credibility, not just on one or two points but on a range of different matters. Importantly, some of these had nothing to do with the inconsistent accounts which Dr Goldwyn attributed to his illness, such as the destruction of his passport, what family was in the United Kingdom and his knowledge of how to claim asylum. There was also the remarkable fact that while the claimant had given detailed (if varying) accounts of his torture at the asylum interviews, and to Dr Hajioff just weeks before the hearing, when he appeared before Judge Sacks to give evidence he claimed he had a memory loss. Judge Sacks had made devastating findings, upheld by two other judges. We now have the further untruths told to Walker J. Yet Dr Goldwyn largely accepted an account of events which Judge Sacks found to be untrue. Specifically her opinion about suicide risk was based on what the claimant told her, yet Judge Sacks found effectively him to be a practised liar. In my regretful view her medical report must be considerably discounted.

Ground 2 of the original claim, and ground 2 of the amended claim, have alleged unlawful detention. Ongoing detention must be reasonable and in accordance with law and policy: Lumba [2011] UKSC 12; [2012] 1 AC 245, [102]-[110], per Lord Dyson. Chapter 55.10 of the Enforcement Guidance and Instructions provides that unless there are exceptional circumstances among persons considered unsuitable for detention are “those suffering from serious mental illness which cannot be satisfactorily managed within detention [and] those where there is independent evidence that they have been tortured.”

Mr O’Callaghan does not challenge the initial detention in early July. In his submission, however, there was sufficient independent evidence that the claimant was a victim of torture. Absent exceptional circumstances he should not have been detained: R (on the application of D & K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin). In this case concern was raised in July in the Rule 35 report. The Secretary of State rejected that but was under an ongoing duty to consider whether evidence had become available that the detainee was a victim of torture. In Mr O’Callaghan’s submission the events of mid August, where the claimant experienced a flashback sufficient to require the hospital visit, put the Secretary of State again on notice that the claimant may be a victim of torture. From that date the claimant’s detention was unlawful since the Secretary of State failed to act in accordance with her policy and assess whether he was and, therefore, whether there were exceptional circumstances for his continued detention. Despite the claimant’s solicitors making several requests of the immigration centre, no evidence has been provided as to any subsequent Rule 35 consideration, as to any diagnosis as to what caused the trance in mid August, or as to any mental health plan beyond treatment for PTSD and depression. Dr Goldwyn’s evidence about the claimant being a victim of torture highlights the Secretary of State’s failures since that date.

In my view the claimant never had any basis for alleging unlawful detention. In this regard it must be remembered that on two occasions after his lawful detention he frustrated his lawful removal, one in late August when he refused to attend an interview at the Pakistani High Commission, the other in late October, when he filed a hopeless urgent claim which Walker J very properly rejected. There was the Rule 35 report in mid July – that he may have been tortured – and the trance the following month, when he was sent to Hillingdon hospital for examination. But neither event went anywhere near justifying his release, nor did Dr Goldwyn’s report. I accept Ms Bretherton’s submission that the claimant’s case on detention rather misses the point that his account, not only of his torture, had been rejected by the Immigration judge as lacking credibility. There simply were not exceptional circumstances within chapter 55.10 of the Secretary of State’s policy.

At the outset I said that it could well be an abuse of process to file a judicial review in the Administrative Court, on the ground that it falls within the detention exception in the Lord Chief Justice’s Direction on transfer of asylum/immigration judicial reviews to the Upper Tribunal, when there is no obvious distinct merit to that aspect of the claim.

On 21 August 2013, the Lord Chief Justice gave a Direction in accordance with the power to make designated rules under Schedule 2, Part 1 of the Constitutional Reform Act 2005 and section 18 of the Tribunals, Courts and Enforcement Act 2007. With effect from 1 November 2013, the Direction specifies classes of case for the purpose of s 18(6) of the 2007 Act, in other words, cases which the Upper Tribunal can hear. Important among the cases specified is any application for permission to apply for judicial review or for judicial review which challenged a decision made under the Immigration Acts or otherwise relating to leave to enter or remain in the UK outside the immigration rules. This applies to a case in which permission to apply for judicial review was issued in the Administrative Court on or after 9 September 2013; a renewed oral permission application in relation to a case which had been refused on the papers on or after 9 September 2013; and an application issued in the Upper Tribunal after 1 November 2013. In Paragraph 3 of the Direction are exclusions in respect of any application which comprises or includes:

“i a challenge to the validity of primary or subordinate legislation (or of immigration rules);

ii a challenge to the lawfulness of detention (but an application does not do so by reason only of the fact that it challenges a decision in relation to bail)

iii a challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the United Kingdom Border Agency, or any authorisation of such Sponsors;

iv a challenge to a decision as to citizenship under the British Nationality Act 1981 or any other provision of the law for the time being in force which determines British citizenship, the status of a British national (Overseas), British Overseas citizenship or the status of a British subject;

v a challenge to a decision made under or by virtue of section 4 (accommodation centres) or Part VI (support for asylum seekers) of the Immigration and Asylum Act 2002

vi a challenge to a decision made under Part II (accommodation centres) or Part III (other support and assistance) of the Nationality, Immigration and Asylum Act 2002

vii a challenge to a decision of the Upper Tribunal

viii a challenge to a decision of the Special Immigration Appeals Commission; or

ix an application for a declaration of incompatibility under section 4 of the Human Rights Act 1998.”

Part 4 of The Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008 No 2698 (as amended) concerns judicial review in the Upper Tribunal. The Practice Directions, Immigration Judicial Review in the Immigration and Asylum Chamber of the Upper Tribunal (“the Practice Directions”), were made in the exercise of powers conferred by the Tribunals, Courts and Enforcement Act 2007. These were amended on 1 November 2013. Part 5 concerns applications which challenge removal and is to be read together with Part 4, which relates to urgent applications. The Practice Directions are supplemented by a Practice Statement, dated 1 November 2013. Paragraph 2.1 records that an application for permission to bring proceedings may be made direct to the Upper Tribunal where the application is designated as an immigration matter in the Lord Chief Justice’s Direction. Where an application is made to the High Court, on a matter which falls within the Lord Chief Justice’s Direction, it will be transferred to the Upper Tribunal to be dealt with by that Tribunal. The High Court may decide in the exercise of its discretion under section 31A(3) of the Senior Courts Act 1981 to transfer certain judicial reviews to the Upper Tribunal. Those, too, will follow this procedure for transfer.

The underlying purpose of the changes is to reduce pressure on the Administrative Court so that it can properly consider the most serious cases, and to ensure that the more routine immigration cases, including challenges to removal directions, are determined by the specialist judges in the Upper Tribunal. Since most of the cases in which there is a removal direction involve detention, there must be a concern that if applications are lodged in the Administrative Court, and routinely include a claim that detention is unlawful, the changes introduced from 1 November 2013 will have little practical effect. By inclusion of a challenge to detention the High Court will be seized of the matter, regardless of how weak that claim for detention may be. I accept Ms Bretherton’s submissions that it should not be possible to circumvent the rules requiring challenges to removal directions to be issued in or transferred to the Upper Tribunal by the inclusion of an unmeritorious unlawful detention claim.

It seems to me that to lodge a challenge to removal in the Administrative Court, including a ground going to the lawfulness of detention, when there is no obvious distinct merit in that aspect, could well constitute an abuse of process by the lawyers engaged in the case. The case can be transferred to the Upper Tribunal under section 31A(3) of the Senior Courts Act 1981 and, when possible within the time constraints, this will generally be done. The abuse of process itself can be addressed within the framework established in R (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin); [2013] CPR 6 and the cases following it. Cost penalties are another possibility: e.g., CPR 44.3(4)(a).

In this case Ms Bretherton submitted that the detention aspect of this case was hopeless. There was no proper claim for unlawful detention. The reality of this case is that it is a challenge to the removal directions and has nothing to do with a challenge to detention. That, in her submission, was demonstrated by the letter sent by the claimant’s representatives on 18 November 2013, in which no reference was made to unlawful detention. What in my view just saves the detention challenge from being without obvious distinct merit is Dr Goldwyn’s report, or at least the circumstances in which it arrived with the claimant’s representatives on 18 November, when he was to be removed the following day. As I have said Dr Goldwyn’s report must be considerably discounted in light of the reliance upon the discredited accounts of the claimant. However, she did raise concerns about the effect on the claimant of detention. Putting those concerns alongside Judge Sacks’ findings, and the claimant’s immigration factual summary, should have rung alarm bells that there was no obvious distinct merit to an unlawful detention claim. However, the report arrived late in the day and the grounds had to be hurriedly drafted. On this occasion I do not find that the unlawful detention aspect of the claim constitutes an abuse of process. Some may consider this to be unduly generous.

Permission to apply for judicial review is refused. The stay on removal is lifted and any further application is to be no bar to removal. The claimant should pay the costs of the Acknowledgment of Service.