TO, R (On the Application Of) v Secretary of State for the Home Department

There is before the court an application notice dated 6 June 2017 seeking permission to file replacement grounds for judicial review. In support of the application the solicitors for the claimant attach a witness statement from the claimant identified as “Amended witness statement of claimant” and a letter identified as “Amended letter from Surrelle Stephens.” The proposed “replacement grounds for judicial review” is a 28 page document consisting of 91 paragraphs. Save for one line, it does not identify by way of strike-through, underlining, colouring or otherwise the way in which it differs from the original grounds. It is accompanied by a “supplementary bundle” which is a lever arch file containing some 460 pages of documents. No reason is given in any of the places where it might be expected to be found -- in the application notice, the witness statement, the letter, nor in the proposed replacement grounds themselves, -- for the need for any replacement or amendment of the original grounds, still less for such a very lengthy document to be filed at so late a stage.

It is to be noted that the original grounds consist of 22 pages containing some 70 paragraphs. By contrast the original summary grounds of defence contain eight full pages and 24 paragraphs. There is an original “permission application” lever arch file containing almost 500 pages of documents.

The grounds for renewal of the application for permission, dated 25 May 2017, consisted of three paragraphs and a total of six lines. The first paragraph reads “the claimant continues to rely on the judicial review grounds as amended on 19 May 2017.” (Emphasis added.)

It therefore appears that the replacement grounds amount to re-amended grounds. No explanation of the way in which these grounds have been re-amended is given, nor why they need reamendment. No suggestion is made that the original grounds are defective. Both documents, in my view, are unnecessarily lengthy. For such a substantial last-minute change to be made, a good reason should be given, and none has been. I therefore refuse the application.

The claimant is a Nigerian national born on 21 July 1991 who arrived in the United Kingdom on 24 August 2010 on a Tier 4 student visa valid until 30 January 2012. Upon completion of his studies on 28 January 2012 he left the United Kingdom. On 24 April 2012, however, he returned to the United Kingdom with a Tier 4 student clearance valid until 30 August 2014. In May 2013 his leave to remain was curtailed and ordered to expire in July 2013. In January 2016 he applied for leave to remain in the United Kingdom on compassionate grounds outside the immigration rules. The application was refused by the defendant on 28 June 2016 with an out of country right of appeal. On 16 January 2017, by now having no leave to remain, the claimant was arrested by the police for an assault upon a woman named Grace. He was detained under Immigration Act powers the same day. His detention was twice reviewed and the decision to detain was maintained.

Removal directions were served by the defendant on 3 March 2017 for him to be returned to Nigeria on 7 March 2017. The claimant only then applied for asylum, on grounds of fear of persecution because of his claim to be homosexual, and on the ground of fears of persecution by members of the “Ogboni” cult in Nigeria. Removal directions were therefore deferred and a screening interview took place on 13 March 2017.

On 9 May 2017 a psychiatrist assessed the claimant and concluded that his mental state might deteriorate if detained longer in immigration detention. That psychiatric report was sent to the defendant on 17 May 2017 and the defendant released the claimant from detention on 19 May 2017.

The claimant’s application for permission to apply for judicial review was made in respect of the decision by the detained asylum case work team (“DAC”) and in respect of the decision to detain him from 16 February 2017.

Permission was refused on the papers by Mr Peter Marquand, sitting as a deputy High Court judge, on 18 May 2017, for the following reasons: (1) decisions of the High Court and Court of Appeal (in cases which are mentioned below) had concluded that any general challenge to the lawfulness of the DAC process failed, and so any such challenge in the instant case was not arguable; (2) nor was any challenge to the lawfulness of detention based on inadequate compliance with section 149 of the Equality Act arguable; (3) the defendant had taken into account the claimant’s assertions about his sexuality and had considered negative indicators of non-compliance; (4) a rule 35 report had been considered, as had EIG policy; (5) there was no breach of the Hardial Singh principle as removal could be carried out within a reasonable period: there did not have to be a definite date.

Counsel for the Claimant relied heavily upon the case of Z.A. [2017] EWHC 850 (Admin) in which Her Hon. Judge Coe, QC, sitting as a judge of the High Court, granted a renewed oral application for permission to apply for judicial review to a claimant in an asylum case who claimed to be homosexual and who could not therefore be safely returned to Pakistan. The basis of his claim for asylum was his sexual orientation. By his claim form he challenged the lawfulness of his original detention, and having subsequently been released maintained his challenge upon the basis of the following matters:--

Judge Coe found that the case of Hossain [2016] EWHC 1331 (Admin) was authority for the proposition that the Home Secretary could lawfully detain an asylum claimant whose application was based on his sexual orientation under the current policy. Other aspects of the claim were also rejected, but the judge granted permission in respect of the lawfulness of the claimant’s detention in the light of the failure under rules 34 and 35. The judge observed that “this is an entirely… individual case.”

Counsel for the claimant informed me that Jackson LJ on appeal granted permission on the ground challenging the decision based upon failure to have regard to a material policy in the decision to detain, but refused to grant permission on the ground challenging the lawfulness of detaining an LGBT asylum applicant under the DAC.

Some similar grounds to those in ZA were relied upon by the Claimant in the instant case. They may be summarised as follows.

At the outset of the hearing I asked for confirmation of the fact that the claimant had been released from detention on May 17, 2017. Having been given such confirmation by counsel, I asked whether it was not obvious, therefore, that the claims for declarations were academic, and that it was also obvious that there was an alternative remedy available in respect of any breach of duty under the Equality Act, or for false imprisonment, in the form of an action for damages in the County Court. Counsel for the Claimant submitted that there was an important point of principle or practice which required decision by the Administrative Court.

Counsel for the claimant developed his submissions at some length, and detailed quotations from the evidence and lengthy citations from various authorities are to be found in the 70 paragraphs of the original Statement of Facts and Grounds. I do not propose to address each and every one of the many points which were made, but will give my reasons in respect of the basic grounds which were argued.

At the conclusion of the hearing, which had exceeded its time estimate to a significant extent, I announced my conclusion that permission would be refused in respect of each of the grounds on the merits, and that I would give written reasons at a later stage. My reasons follow.

It was submitted on behalf of the claimant that, following the case of JM and others v The Secretary of State for the Home Department, the Defendant had accepted that the scheme known as the detained fast track (DFT) carried unacceptable risks of unfairness, and it was discontinued. As Cranston J explained in Hossain,

“34.

In response to the decision to suspend the detained fast-track, the Home Office formed a dedicated detained asylum casework team (“the DAC team”) for examining asylum claims by those in detention. It also published guidance entitled Detention: Interim Instruction for cases in detention who have claimed asylum, and for entering cases who have claimed asylum into detention on 16 July 2015 (“the Detention Interim Instruction” or “DII”). It states that the suspension of the DFT does not mean that asylum seekers cannot be detained. The instruction reads:

‘4. All cases in detention must be held in accordance with general detention criteria, as set out in Chapter 55 of the Enforcement Instructions and Guidance (EIG). When deciding to detain and/or whether to maintain detention, staff must always consider the provisions of EIG 55.10 ’.”

Despite all that, counsel submitted (in effect) that the DAC in this case was no different from the DFT, or that if there was a difference it was a difference without a distinction. However, as counsel for the defendant pointed out, in the case of Hossain Cranston J had analysed the DAC/DII process, dealing with it at paragraphs 140 - 156, and held that it was not inherently unfair. At 130 he had said, in terms,

“130 .… On their face the DFT and DII policies are fundamentally different. The DFT policy was to detain asylum seekers on the sole criterion that their claims for asylum could be determined speedily, even when there was no risk of absconding. Under the DII, Chapter 55 of the EIG governs detention and there is a presumption in favour of release unless, for example, there is the specified risk of absconding.”

The Court of Appeal refused permission to appeal the decision: see TH [2016] EWCA Civ 815.

So far as reference to the case of ZA is concerned, as noted above, both the permission granted by the judge at first instance and the permission granted on appeal, were restricted in scope and were concerned with a case which turned on its own facts. In my view there is no merit in Ground 1, and ZA provides the Claimant with no assistance in his attempt to show that there was, for the reasons given by Cranston J referred to above.

The basis of this ground, it seemed to me, could be summarised by the submission of counsel for the claimant that the claimant’s fear of persecution because of his sexuality was a claim which inherently required external corroborative evidence in order to be established, and that the inherent complexity of claims brought by LGBT claimants such as T.O. created a timescale which defied any possibility of removal within a reasonable time. In the case relied upon on this point J.B.(Jamaica) [2014] 1 WLR 836, the Claimant was detained pursuant to the Home Secretary's policy at that time of detaining those whose asylum claims could be determined within a period of about two weeks. On the facts of that case it was held that the exercise of the power to detain the claimant had not complied with the Home Secretary's policy in that the appeal had not been capable of determination within a period of about two weeks and the claimant had not been allowed sufficient time to present his evidence. This case is plainly distinguishable on the facts.

Instead, counsel for the defendant’s contention was that on a true analysis the basis for ground 2 appear to be a repetition of ground 1, namely that the claimant should not be dealt with under the DAC process as it was unsuitable: in my view there is indeed little difference between the reasoning underlying this ground from the reasoning underlying Ground 1. I do not consider the point to be any more arguable than Ground 1.

It is submitted on behalf of the claimant that there had been a failure to have regard to a material policy in the decision to detain, in that, for example, the defendant had failed to have regard to a written policy at Ch. 55.5.1.3, that an outstanding asylum application might provide the Claimant with an incentive to comply with restrictions on release, which was a material factor the defendant had failed to consider when assessing the risk of the claimant absconding. However, as counsel for the defendant pointed out, there were significant “negative indicators of compliance” in existence in the Claimant’s case, in respect of his having made his claim only after having been served with a number of negative immigration decisions, when he had had no good reason to delay the making of the claim, and following his having been in the UK illegally for a protracted period of time without having come into contact with the authorities.

In my view there is no basis for the submission that the defendant failed to have regard to the possibility of release as an incentive to comply with restrictions. There were compelling reasons to detain the Claimant, including the risk of absconding, which counsel for the Claimant did not deal with. The “outstanding asylum claim” in this case was one which had been made only at the last minute and, after the following significant adverse immigration decisions:--

It was submitted that detention of the Claimant as an LGBT individual was unlawful, because, following the case of Hossain, the defendant has acknowledged that such individuals in detention form a “vulnerable cohort of detainees and asylum applicants” and the Claimant’s detention policy failed to ensure substantive equality between the Claimant and heterosexual detainees, in that the detention policy failed to treat LGBT detainees differently, resulting in harassment and discrimination.

It was submitted on behalf of the defendant that everyone who is detained is subject equally to the Home Office policy on detention. The Home Office recognises that detention may not be appropriate for certain adults at risk. In the Claimant’s case there was no evidence of his having been subject to any significant harm, still less any injury or mistreatment, whilst he was in detention. The defendant had made a conscientious and proper assessment of the Claimant’s claim to be homosexual or bisexual. That assessment gave reasons for its conclusions based upon the inconsistencies of statements made by the Claimant.

The single point which might have amounted to harassment or mistreatment was an allegation by the claimant in his witness statement that he had suffered from homophobic verbal abuse from other detainees. There did not seem to be any independent record of a report of it at the time. Taking the allegation at its highest, however, it does not seem to me to be a foundation for a submission that the defendant failed to ensure substantive equality between the Claimant and heterosexual detainees, in that the detention policy failed to treat LGBT detainees differently, resulting in harassment and discrimination. I do not regard this ground as arguable.

The rule 35 report in this case amounted to Level 2 evidence that the Claimant was an adult at risk, the report writer having concerns that the Claimant may have been a victim of torture. The response to the rule 35 report highlighted that the Claimant was an adult at risk. The defendant submits that where Level 2 evidence is available but no indication that detention is likely to lead to a significant risk of harm to the individual, he may be considered for detention if there are negative indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained. Such negative indicators existed in the instant case, as already detailed at paragraph 23 above.

The response to the rule 35 report took account of the fact that the Claimant was an adult at risk, but stated that he could not be relied upon to comply with any immigration requirements, as the asylum claim was only made opportunistically, as set out above.

Upon the receipt some time later of the report from the psychiatrist, it may be seen that the defendant complied completely with the policy. The Claimant’s case was reviewed so far as detention was concerned, and the Claimant was released.

For those reasons, I also consider this ground to be unarguable.

If I am wrong in rejecting the Claimant’s arguments on the grounds above, I would nevertheless have refused permission upon the basis of an exercise of discretion: academic questions where no principle of wider public importance is involved should not be matters which should occupy the time of the Administrative Court.

The relief which the Claimant seeks consists of (1) declarations that his detention has been unlawful; that the defendant has unlawfully failed to have due regard to her duties under the Equality Act; that the Defendant’s DAC detention policy adversely discriminated against the Claimant, and (2) damages, including aggravated and exemplary damages.

In view of the fact that the Claimant has been released, the case in respect of the various declarations has become academic, and so far as the claim for damages is concerned in my view it would not have been appropriate to grant permission in this case as the Claimant has an obvious alternative remedy in the form of an action in the County Court for damages, whether for breach of duty under the Equality Act or for false imprisonment.

For that reason as a matter of discretion I would have declined to grant permission in any event.