Javed, R (on the application of) v Secretary of State for the Home Department

THE DEPUTY JUDGE: In this claim for judicial review the claimant challenges the defendant's decision dated 2 March 2014 to refuse his representations and evidence as amounting to a fresh claim and also the legality of his detention from 21 November 2013 under what has been called the ‘Fast Track Scheme’ to his release on bail by the First-tier Tribunal on 26 March 2014. He seeks a quashing order, a mandatory order, a declaration that he is not suitable for the Detained Fast Track ("the DFT") process and a declaration that his detention was unlawful or in breach of Article 5 of the European Convention on Human Rights. He also seeks consequent damages and costs.

Chronology: The claimant was born in Pakistan on 12 September 1984. He is a member of the Sunni Islamic faith. He is married with a child. Before that marriage he eloped with his now wife, who is from the Wahhabi Islamic faith. It is the fallout in Pakistan of their elopement which forms the background to his claim for asylum in the United Kingdom. The claimant first entered the UK as a student on 29 December 2010. He returned to Pakistan in January 2012 for a short visit. He entered the United Kingdom again in February 2012 and then returned to Pakistan in October 2013 when he hoped to effect reconciliation with his wife's family, who had previously refused to accept the marriage.

Taking matters shortly, there was no reconciliation. He was beaten, as was an accompanying friend. He spent 3 days in hospital. It is of note that he made a complaint to the police. In due course his wife escaped from her family but they continued to pursue the claimant and his wife and child. The religious marriage they had already entered into was supplemented by a civic registration on 16 November 2013. The police, it appears, had not registered a First Information Report ("FIR") on the basis of the claimant's report to them. So a solicitor was instructed and an application was made to the Regional Magistrates' Office of Sialkot. The claimant was called to the court and he made a statement. Consequent upon that the magistrate ordered inquires to be made and a report to be compiled by 26 November 2013, after which a decision would be made whether or not to file an FIR.

Before that date arrived the claimant was travelling to see a doctor on 19 November 2013 when he was shot at. The police were called. The police arrived and they escorted the claimant to the police station where he filed a report. He was then taken out by the police to try and find the assailants. The next day, 20 November, the claimant was shot at again. He went to the police station with his solicitor and submitted a complaint which was apparently forwarded on to the relevant officer to take action. The claimant left Pakistan, being escorted to the outskirts of the town by the police, and he has since learnt that his wife and child have been abducted again by her family. In addition, in January 2014, whilst in detention, he received a telephone call making threats to him. What I have just recited is a brief outline of the facts, all accepted by the First-tier Tribunal judge in due course.

When the claimant arrived in the United Kingdom on 21 November 2013, after fleeing Pakistan, he sought protection. Although he would have been allowed to enter the country on the basis that his student leave was still valid, he claimed asylum at the airport. By way of a screening interview he was placed in the DFT process. He was interviewed and provided documentary evidence which he had plainly brought with him. However, his claim for asylum was refused on 20 December. He appealed against that refusal and his appeal was heard on 9 January 2014. The determination was promulgated on 13 January.

Two things to note in particular are that his account, of which I have given a brief summary only, was accepted, including the reference to a magistrates order in Pakistan that a report be compiled on his case by 26 November 2013. Secondly, the documents that he produced, including an affidavit from his solicitor in Pakistan, where accepted as genuine. His appeal against the Secretary of State's decision not to grant asylum, however, was dismissed, principally because there was no satisfactory evidence of individual circumstances such that the police or authorities generally do not have a capacity to address the threat that the claimant faces. In the judgment of the First-tier Tribunal judge the evidence showed, on the contrary, that the claimant had successfully engaged the attention of the police to provide actual escort and to make investigation, and the attention of a magistrate to issue appropriate orders for protection and investigation. Secondly, his appeal was refused on the basis that there was no evidence at all that relocation by the claimant would involve appreciable hardship.

On 22 January 2014 the claimant was refused leave to appeal further, so that he became appeal rights exhausted at that time. It is also right to note that the parties agree that his right to apply to the First-tier Tribunal for his case to be removed from the DFT process also ended on that date, but it was a remedy available to him up until then. This is a relevant feature in this case when I turn to consider the unlawful detention claim.

After this position had been reached he tried to make a fresh claim with supporting evidence and a statement. On 30 January the defendant refused the fresh claim and set a removal direction. On 27 February, however, further representations were submitted by his present solicitors, whom he had engaged on 4 February this year. This included a First Information Report with an English translation. That showed on its face that in December the claimant's father-in-law had reported offences allegedly committed by the claimant, which the claimant says are fabricated accusations.

It is necessary to refer briefly to this First Information Report in its translated form. The date and time of the report is recorded as 19 December 2013. Within the body of the report, which was made to the SHO Sahib Police Station Kotli Syed Ameer, Sialkot, included are these words:

The claimant relied in his current submissions on this First Information Report as evidence that he was now clearly at risk from the authorities and evidence that his father-in-law continued to have an interest in tracking him down to do him harm. Amongst the material submitted was DHL packaging which showed that the First Information Report had been sent to the claimant on 23 January, so after the appeal hearing in the First-tier Tribunal. The solicitor’s evidence also included an expert report. The expert is Mrs Uzma Moeen. She describes herself in a report dated 27 February 2014 as follows:

In a lengthy report totalling 32 pages she deals with the FIR and has been asked to consider the authenticity of that document. She also deals with the cultural background to the threats that the claimant had described, and has been describing, as accepted by the First-tier Tribunal. She deals with the occurrence of honour killings in Pakistan and she also deals with the two matters that concerned the First-tier Tribunal judge and caused him to reject the appeal, namely the cogency of the protection likely to be available to the claimant from the Pakistani authorities and, secondly, the possibility of relocation elsewhere in Pakistan.

It will be sufficient for me to simply summarise her conclusions, which are on page 31 and 32 of her report. She concludes that in her opinion the police document, the FIR, adduced by the claimant is "reasonably likely a genuine document originated in Pakistan based on my vast experience and opinion." Secondly, she concludes that the view taken of the concept of honour and the persistence of honour crimes in Pakistan are such that it is "reasonably likely that Mr Javed would suffer serious physical harm or even killing" for (as it would be seen) dishonouring his wife's family and bringing shame upon them. Thirdly, she concludes that is there is no realistic possibility that the authorities in Pakistan would be of any meaningful assistance to the claimant if he were to return to Pakistan. Fourthly, the incidents that she had quoted in her report of unlawful killings in Pakistan in circumstances similar to those the claimant is in meant that he and others in his position would have to live like criminals on the run and be threatened by the police. Then, finally, she says that in her opinion it is highly likely that the claimant's wife's family would be able to, and motivated to, track him down and do him harm.

In addition there was a witness statement from the claimant himself and it is plain from the witness statement, in which the claimant set out how he came into possession of the FIR, that by time of the witness statement, which is dated 27 February 2014, the claimant was aware, taking the contents of the FIR on its face value, that his father-in-law was still engaged in trying to find him. Furthermore, he explains that a politician, who he had referred to previously, Mr Armughan Subhani, was related to the claimant's father-in-law and would be able to use his position to find the claimant and his wife anywhere in Pakistan. In addition, amongst the material submitted by the claimant's solicitors in February 2014 was a news article to show that that gentlemen, Mr Subhani, was in fact a former provincial minister.

So much for the background and the material that was provided.

The SSHD’s Decision: The material and the evidence provided was rejected by the Secretary of State, who refused to accept the totality of the material as amounting to a fresh claim. I will turn to deal with the decision letter briefly. Dated 2 March 2014, addressed to the claimant's solicitors, it summarises the material provided to the Secretary of State, it deals with the background and then from paragraphs 6 to 17 sets out the reasoning of the Secretary of State in considering all the material provided. In essence, the Secretary of State rejected the FIR as a genuine document. However, she also considered the alternative position, namely, if the FIR was genuine what would the position be? She also deliberated on the evidence provided by Uzma Moeen, the expert witness, and expressed herself as having given anxious scrutiny to the question of whether these further submissions would create a realistic prospect of success before an immigration judge. They, to her satisfaction, amounted to material that had not been considered before. Her conclusion was that they should not be accepted as a fresh claim.

Just to return to the chronology, that decision is challenged and a claim for judicial review was issued on 3 March 2014. An application for a stay on removal was also lodged with the detailed grounds. On that same day, Lang J refused the application for a stay on removal. The following day, 4 March, Irwin J ordered the claimant's removal be stayed. Therefore, the claimant was successful on his oral hearing. The removal was stayed pending the resolution of this judicial review and Irwin J granted permission. I have been provided with a transcript of his order. That day, the claimant's representatives sent the defendant a fax enclosing Irwin J's order, requesting confirmation that the claimant's removal directions had been cancelled and requested that he be granted temporary admission in light of the fact that he had been granted permission to apply for judicial review. On 12 March, the claimant's representatives wrote to the defendant telling her that they had made a bail application on his behalf and submitting that his case was now "clearly outside of the DFT process" and requesting again that he be granted temporary admission. However, it was not until a bail hearing on 26 March in front of the First-tier Tribunal that the claimant was grant bail and he is now currently on bail.

The Claim: So let me turn to the first ground of claim: the contention by the claimant that the Secretary of State made an irrational and unlawful decision in failing to treat the claimant's fresh evidence and submissions as amounting to a fresh claim. Paragraph 353 of the Immigration Rules provides:

There is, of course, a need to distinguish between those two questions. In this case, of course, the defendant did not accept the further submissions. When she comes to consider the fresh claim question there is plain authority that the test is not a very high test and it is accepted on behalf of the defendant that it is a modest test. It is also agreed that the court will interfere with the defendant's decision only if it offends traditional public law principles such as: the failure to take account of relevant matters, a failure to provide adequate reasons, irrationality per se, if she simply failed to ask herself the correct question, or in doing all of that has failed to exercise anxious scrutiny.

So has the Secretary of State in this case failed to ask herself the correct question? Secondly, if she has asked the correct question, has her conclusion on both of the questions she has to consider the element of rationality and anxious scrutiny? It is also agreed that the starting point for her assessment of a fresh claim case will be the findings of the previous judge of the First-tier Tribunal. Those findings provide a baseline from which the Secretary of State can move. It is also accepted that anxious scrutiny means that every factor that might be in favour of a claim is taken into account specifically.

With those matters briefly in mind let me return to the decision letter itself, the letter of 2 March 2014. Was it clear in this letter that the Secretary of State's considerations were based on the findings of the First-tier judge? The claimant says they plainly were not and it has been submitted to me that there are no references to those First-tier findings until we get to paragraph 12 of the letter, where the last sentence reads:

It is also submitted that the Secretary of State failed to consider the First Information Report in the context of the findings of Judge Gillespie. But if I continue reading from the paragraph that is quoted in the decision letter it is quite plain that that is also not correct:

A further matter that is raised in respect of the quality of the decision made by the Secretary of State, is what Irwin J concluded appeared to be a mistake of fact. I am referring to the hearing on 4 March 2014, which was the oral application for an injunction preventing the claimant's deportation. I read from paragraph 11 of the transcript of that hearing:

Let me examine the mistake of fact that is alleged. In paragraph 6 of the decision letter the following is found:

Moving onto the second concern on this topic raised by the claimant that the Secretary of State has misunderstood the significance of the father-in-law's First Information Report. In paragraph 8, where I have just recorded that the Secretary of State refers to the fact that the claimant was not arrested by the police despite his father-in-law having reported in 2010 that his daughter had been forcefully kidnapped by the claimant, the claimant says this demonstrates that although the father-in-law has said in December 2013 that he had made a report in 2010, that may well be false. I have to say that for my part, whilst that is an arguable point, it does not strike me as detracting from the internal logic of the Secretary of State's decision. It is of note that on the face of the document that the claimant relies on the attitude of the police in assisting and helping him in 2013 rather than arresting him appears to demonstrate that the police are taking an objective and an independent view rather than simply reacting to what the father-in-law has said or may have done. Rather than contradicting the findings of the First-tier Tribunal judge, in my view close analysis of the impact of the First Information Report by the Secretary of State confirms the view of the First-tier Tribunal judge that the claimant was not able to demonstrate that the police would not assist him were he to return to Pakistan.

The next complaint made about this decision and its reasoning is that there is no, or insufficient, consideration of the expert's report. The expert's report is considered in the decision letter, albeit briefly. At paragraph 12, the Secretary of State says:

In responding to this first ground of claim, Mr Malik, for the defendant, has made the follow submission, which I accept. The assessment of the evidence of the claimant by the First-tier Tribunal judge, which he was prepared to accept, does not mean the Secretary of State is thereafter bound, absent irrationality, to accept everything that the claimant says thereafter. It is plain that the evidence produced to the Secretary of State and the statement provided by the claimant himself, all put together, fail to engage with the two matters that actually lead the First-tier Tribunal judge to reject the claimant's appeal, that is no evidence that the authorities would not assist the claimant were he to return to Pakistan and, secondly, no evidence that it would not be possible for him to relocate without undue harshness. In particular, in respect of the evidence from the expert, I have been provided with the Country Guidance case of KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC). In this Country Guidance case particular attention was paid to the honour crime position. Evidence was received from a Dr Lau, who was an expert witness, a barrister and Reader in Law at the School of Law of the School of Oriental and African Studies and his areas of expertise included Islamic law. At paragraph 40 of the report, Dr Lau's oral evidence included an assessment of what a First Information Report is in Pakistan:

In addition to that evidence, Dr Lau made plain that the object of an FIR, such as this claimant, had the capacity to challenge its contents in court, that being one of the topics that the expert relied on by the claimant dealt with, the Country Guidance case also provides assistance to this court on the corruption aspect of the claimant's expert's report. Paragraph 193 of the decision reads:

Then on the third topic the expert witness relied on by the claimant dealt with, namely the issue of honour crime, paragraph 212 of the Country Guidance case assists by concluding that the deplorable incidents of honour killings are predominantly located in rural areas of Pakistan, not in urban areas, and the view that honour crime was prevalent and entrenched was rejected by the court.

So, as far as the expert witness' evidence was concerned, given that the First-tier Tribunal judge was looking specifically at the circumstances and the evidence in this claimant's case, not generally, it seem to me that there is no irrationality in the conclusion at paragraph 12 of the decision letter which deals specifically with the expert report: "The fresh evidence you have provided does not challenge the findings made by Judge Gillespie, that remain sound".

Conclusion on the first ground: Bringing all of this together then in respect of the first ground of claim, in my judgment there is no merit in the claimant's contentions. There was simply before the Secretary of State no new sufficiently reliable and cogent evidence that the two matters that caused the First-tier Tribunal judge to reject the appeal were, or could reasonably, even on the very modest test that she had to apply, be considered to have been impugned, namely internal relocation bringing undue hardship and unlikelihood or inability of the State of Pakistan for police and courts to protect a claimant.

In the circumstances, the claim under this ground is dismissed.

Article 5: I turn to consider briefly the claim that detention of the claimant was unlawful or in breach of Article 5 of the ECHR.

The argument has been very broad, in effect that this claimant was never someone who could properly be included in the DFT process and so he was unlawfully detained throughout his detention from November 2013 until his release on bail.

I reject that submission without difficulty and I make the followings observations. Until 22 January 2104 he had an alternative remedy in any event, and that was accepted by the claimant during the course of this hearing. The claimant says that, at least by the time the further fresh claim was submitted by his solicitors in February, it was clear that he was no longer within the DFT timescales and, given the injunction that was then granted by Irwin J, removal was not imminent, and he invites attention to the detention record review dated 13 March 2014. The recommendation for his condition detention includes the following sentence:

My attention has been draw to the recent reconciliation of authorities in this field in the case of R (Irfan Ahmed) v Secretary of State for the Home Department [2013] EWHC 1536 (Admin). During the course of that case, in which a claimant was detained under the DFT provisions, at paragraph 8 it is noted that he did not avail himself of the opportunities to apply to the First-tier Tribunal for removal of his case from the DFT under Rule 30 of the Tribunal Fast Track Procedure Rules 2005 nor did he apply for bail. It is worth noting that this claimant did not apply for bail until after the injunction had been granted by Irwin J.

Also within the case of Irfan Ahmed, at paragraph 18 consideration is given to that claimant's complaint about the way that his claim for asylum was processed through the DFT. There is reference in that judgment to the judgment of Latham LJ in HK (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 1357 at paragraphs 26 & 27.

In light of authority, it seems to me that until the point where the claimant had lodged his application for judicial review, which was 3 March 2014, no proper complaint can be made about his detention under the DFT process. However, from the time that he issued that application or claim for judicial review, whether or not he was suitably detained under the published policy became a question that the Secretary of State had to consider with care.

As I have just quoted from the review note of detention in March 2014, and I have made clear the same language is used on that occasion as had been used in ones before, it seems clear to me that at that stage the Secretary of State did fail to make a decision that was properly cognisant of the situation that was changing. I do not need to go through a further analysis of the position because it seem to me that thereafter, this being a case where within a few days a stay on deportation had been ordered by Irwin J, the detention under the DFT process was not justified. I then have to consider whether in fact detention would have been lawful in any event. It seems to me that there was, beyond the DFT process, no specific basis for detention of this claimant.

So in the circumstances the claimant succeeds in his claim for judicial review as far as the second ground is concerned partially. That means that his detention between the lodging of the judicial review claim on 3 March and his release on bail on 26 March was a period that was unlawful.

I do not therefore consider Article 5 specifically.

It seem to me that this is a case in which more than nominal damages are appropriate for that unlawful detention. It seem to me that I ought to pause at this stage and invite the parties to make representations as to the appropriate damages for the period of unlawful detention that I have concluded was the case.

Do you wish to do that in writing or are you able to deal with that now?

MS LOUGHRAN: My Lady, I would have thought it should be transferred to the Queen's Bench Division.

THE DEPUTY JUDGE: For an assessment?

MS LOUGHRAN: Yes, my Lady.

MR MALIK: My Lady, that appears to be right. As my Lady has held that detention was unlawful, then the matter should be transferred to the Queen's Bench Division.

THE DEPUTY JUDGE: Then that is what I will do. What shall I do as far as costs are concerned? It seems to me, plainly, that the claimant has succeeded in part of his claim but not in the entirety of it.

MR MALIK: My Lady, I certainly seek the Secretary of State's costs. I recognise that the claimant has succeeded to a limited extent and that my Lady may feel it appropriate that it should be reflected in any order. I wonder if my Lady has seen the statement of costs.

THE DEPUTY JUDGE: I have. I have also seen the submission on behalf of the claimant as far as costs for this hearing are concerned. Is it appropriate for me to deal with costs at this stage even though the matter is being remitted for an assessment of damages?

MR MALIK: Yes. My Lady has dismissed the fresh claim aspect of the judicial review and I invite my Lady to make an order requiring the claimant to pay half the Secretary of State's costs.

THE DEPUTY JUDGE: Do you have any observations?

MS LOUGHRAN: My Lady, I would simply state that, given that the claimant has been partially successful, perhaps the most appropriate course, given that this matter is ongoing, that it is a matter for written submissions. But obviously the claimant does not accept that we should pay half of the defendant's costs. My Lady, the reason for that is, given obviously the partial success, it might be appropriate to put our minds to that.

THE DEPUTY JUDGE: If there is no reason why I should not make a decision as to costs now apart from the fact that the claim for damages is being remitted for assessment to the Queen's Bench Division, it seems to me appropriate that I should, if I can, make a decision. The claimant has not succeeded on the major ground, which was his application for judicial review in respect of the fresh claim. So I make a costs order against the claimant for half the costs incurred by the defendant. The costs incurred by the defendant, according to the note I have been provided with are £6,608. So the order is in the sum of £3,304. But the claimant himself, who is a party who is in receipt of services funded by the Legal Aid Agency, will not be required to pay anything himself. Is that in a sufficient form? Any other matters I need to deal with?

MR MALIK: My Lady, Irwin J of course stayed removal of the claimant pending the resolution of the judicial review, so may I respectfully ask my Lady to lift that stay and say that there is no bar to the claimant's removal.

THE DEPUTY JUDGE: In the circumstances that seems to me to be an appropriate order in light of the decision that I have made.

MS LOUGHRAN: My Lady, I would ask that it is maintained until the damages issue has been dealt with, just in case he needs to participate in those proceedings.

THE DEPUTY JUDGE: He is able to participate having been removed. I certainly have had experience of cases where that has happened. So I do lift the injunction and I say there is no bar to the claimant's removal despite the remission of the damages claim that I have already expressed. Any other matter I need to deal with? No. Thank you.