AA, R (on the application of) v Secretary of State for the Home Department & Anor

AA is an Afghani national. He has been in immigration detention since 10 August 2017. By an application made on 13 June 2018 he sought permission to apply for judicial review, and for interim relief, namely an order that he be released to an address approved by the Probation Service. On the same day Mr Justice Lewis ordered the Secretary of State to file and serve an acknowledgment of service and summary grounds by 4pm on 14 June. The Secretary of State did not comply, nor, apparently, attempt to comply, but instead applied for a 21 day extension. On 19 June 2018 Mrs Justice May listed the matter for an hour on 3 July for the purposes of determining interim relief, and, if the Judge hearing the matter so determined, permission. The matter came before me for hearing on 3 and 4 July.

For the reasons which follow I grant permission to apply for judicial review but decline interim relief. I will give directions for an expedited hearing of the challenge.

So far as appears from the available material (which is not complete), the relevant facts are as follows.

AA was born in Afghanistan in or around 1985, so he is now about 33 years old. He has a wife and children in Afghanistan. He has no close family in the UK though it seems he has a cousin here. He speaks Pashto, but is illiterate, and his English is rudimentary.

In May 2015 he claimed asylum in Hungary.

On 29 May 2015 he claimed asylum in Italy and was granted protected status. As a result he has a right to reside and work in Italy until 4 February 2021.

AA entered the UK clandestinely some time in the summer of 2016 (different dates are given in different documents). On 18 August 2016 he was encountered in the rear of a lorry with five other men and was arrested. He claimed asylum. He was detained and had a screening interview on 20 August 2016. In that interview he said that he could not return to Afghanistan because he feared the Taliban. He gave no account of having been tortured. He was released to initial accommodation on 22 August 2016.

By 26 August 2016 he had absconded. He had no further contact with UK authorities until June 2017.

On 16 February 2017 his UK asylum claim was deemed to have been withdrawn.

On 17 June 2017 he was seen on a bus with his trousers unzipped, touching the hair of a female passenger who was asleep. He was arrested and on 3 August 2017 at the Stratford Magistrates’ Court he was convicted of Sexual Assault contrary to section 3 of the Sexual Offences Act 2003. It is not clear whether he pleaded guilty or was convicted after a trial. He was sentenced to 16 weeks’ imprisonment and placed on the sex offenders’ register for seven years. No further information is available about the circumstances of the offence, nor the basis of the sentence, nor is there any contemporaneous analysis of the likelihood of reoffending. The length of the sentence suggests, when read with the Sexual Offences Definitive Sentencing Guidelines, that the sentencing judge is likely to have considered that the degree of harm done was in Category 3 (the lowest) and the culpability level was B, the less serious of the two categories.

Because he had spent 45 days remanded in custody, AA was released on licence on or about 11 August 2017. His period on licence expired on 8 October 2017 and he was then to be subject to post sentence supervision until 13 August 2018.

However, the Secretary of State had made a Stage 1 deportation decision on 9 August 2017 on the grounds that AA’s deportation would be conducive to the public good, and on 10 August 2017 it was decided to detain AA in immigration custody. The minute of the decision to detain contains the following observations

By 25 August 2017 AA had told the immigration authorities that he had an “Italian passport” and the case records say that by 12 September a copy of AA’s Italian ID card had been provided and scanned, and AA had asked to be returned to Italy.

According to the immigration records on 12 September 2017 AA asked to be returned to Italy as soon as possible; he again said that on 21 September; and on 27 September he said he wanted to purchase his own ticket. The records say that on 1 November 2017 AA again “stated that he wants to return to Italy ASAP and has not claimed asylum in the UK”.

It seems (although the position is not entirely clear) that on 4 November a deportation order was signed, the Secretary of State apparently at this stage assuming there was no live asylum claim.

On 9 November 2017 there was an internal request for Home Office Returns Logistics to liaise with the Italian authorities over AA’s status.

Again on 1 January 2018 AA is recorded as stating that he does not wish to claim asylum and that he does not remember ever having done so.

On 27 January 2018 AA told the immigration officer that he would like to know

Case notes made on 30 January 2018 recorded the thinking on continued detention as it was at that stage:

On 8 February 2018 AA applied, through his solicitors, for bail from the Secretary of State, saying he wished to return to Italy.

On 4 March 2018 a rule 35 report was submitted. The doctor recorded that AA claimed he had been tortured in 2013; that AA had scars consistent with his account, and that AA “is very upset about the length of time he has been in detention and the impact this is having on his health. He feels the mental torture of what happened to him is being exacerbated by this environment.” The Doctor concluded that AA had no acute physical disability in the detention centre but that he did have significant mental distress from “this episode” and he will be referred to the Mental Health Team as per protocol to be assessed by them.

The Rule 35 report was considered and an Immigration Enforcement officer wrote to AA on 8 March 2018. It was accepted that the claim of ill-treatment met the Level 2 threshold and AA was an Adult at Risk, but detention was maintained, it being considered that removal could be arranged within 4 months, and that there was risk of absconding and risk to the public. The letter makes no mention of the repeatedly expressed desire of AA to be returned to Italy.

On 13 March 2018 AA’s asylum claim was referred to the Detained Asylum Casework Team. It is unclear what prompted this. On 14 March there was a hearing of the bail application at which the application was withdrawn.

On 3 April 2018 he was interviewed for his asylum claim. He explained his immigration history. He said he had been given a 5 years stay in Italy and said it was a mistake to leave Italy. He explained that in Afghanistan he had been part of the local Arbikian militia, and that the Taliban had come searching for him. He said he had been detained and beaten by the Taliban (see Answer 87). He said he was released by the Taliban but they threatened that if they found him again they would kill him. The local Arbikian leader in his village said they could not protect him.

Despite the 30 January 2018 note there is no clear indication in the available documents that the risk assessment was in fact reviewed. In contrast, on 3 April 2018 a note on the file says this

On 6 April 2018 his solicitors made asylum representations on behalf of AA. They noted that their review of the subject access files apparently contained no take-back request to the Italian authorities. They said that AA wished to be returned to Italy, but that if he could not be returned to Italy he should be granted asylum status in the UK. AA’s solicitors said that AA had said in his interview that he had been tortured by the Taliban, but that the interview notes had not adequately recorded that. The letter enclosed a copy of AA’s Italian ID card and concluded

On 18 April 2018 AA’s solicitors wrote seeking permission for AA to attend for a Medical Foundation report, but AA was not released.

The authoriser’s comments on a 1 May 2018 detention review said this:

I interpose to explain the reference to MAPPA. MAPPA stands for Multi-Agency Public Protection Arrangements. All those convicted of a sexual offence will be subject to MAPPA. Category 1 is the least serious category of offender and Level 1 the lowest level of management.

On 15 May 2018 the Claimant’s solicitors wrote a detailed pre-action protocol (“PAP”) letter.

On 29 May 2018 the Home Office sought additional time, to 12 June 2018, to reply to the pre-action letter. AA’s solicitors agreed.

On 6 June 2018 AA was seen at Colnbrook IRC. According to the note AA was asked to sign a form so that his asylum claim could be withdrawn and the removal process could be started, as he had been frustrated on the previous day and had asked to go back either to Italy or Afghanistan. AA called his solicitor and his solicitor spoke to the case officer. AA’s solicitor explained that AA could not go back to Afghanistan as his life would be in danger, and AA had mental health issues.

The Home Office had not replied to the pre-action protocol letter by 12 June and so, unsurprisingly, this Claim was commenced on 13 June 2018.

On 13 June Lewis J directed the Home Office to respond the following day but, as I noted above, the Home Office’s response was to seek an extension of time.

In the three weeks since proceedings were commenced there have been some notable developments and changes in the position. In a flurry of recent activity the Home Office has responded to the claim, accommodation has been found which is acceptable to the Probation Service, the Italian authorities have confirmed their willingness to take AA, AA has produced a full medical report, and, finally and most recently, AA has decided that he does not, after all, wish to be returned to Italy and then, even more recently, decided that he does want to be returned to Italy, and has withdrawn his asylum claim. It is against those shifting sands that I must decide the interim relief application, and so I need to explain how these developments have arisen.

On 19 June 2018 the Home Office responded to the 15 May PAP letter. I will set out its closing paragraphs:

I read that letter as saying that (as of 19 June) detention is maintained because, but only because, approved accommodation has not yet been identified. It is important to note, however, that as at that date the UK asylum claim was live, and was likely to take some time to resolve, especially if a negative finding was challenged by AA.

On 20 June 2018 the Italian authorities confirmed to the Home Office that AA has protected status in Italy. A letter to that effect has been provided, in Italian. It has not been translated, but the parties agree that that is its meaning. It is unclear what prompted that letter, but its timing is obviously noteworthy. It might be coincidence that the Italian authorities happened to respond on 20 June to long outstanding requests, or it might be that the Home Office took active steps to chase or press the requests which they had first made as long ago as November 2017, and it was that that caused the Italian authorities to respond. Mr Tankel, who appeared for the Home Office, was not able to assist the court with detail of exactly what steps had been taken, and when, to approach and/or to chase the Italian authorities. The existence of the Italian letter was not communicated to AA or his advisers until late on 29 June.

On 30 June 2018 AA received a medical report from Dr Victoria Lilford, which was served on the Home Office on 2 July. Although the parties are agreed that the Home Office has not yet had a reasonable time to reconsider and respond to it, and it is therefore irrelevant to the extant judicial review challenges, I need to summarise its contents because I consider that it is important material to which I must have regard in deciding the interim relief application.

Dr Lilford’s key conclusions were

AA currently meets the DSM-5 criteria for major depression and would benefit from treatment for his depression; it is possible he is also suffering from PTSD;

If he is further detained it is possible his mental state will further deteriorate;

His symptoms of depression are likely to improve if he is released from detention and effective treatment is more likely to be achieved in the community than in detention;

When seen AA was not actively suicidal but was at risk;

AA has scars which overall are consistent with his account of torture.

There are two points to note. First, in relation to continued detention, the report does not go beyond suggesting a possibility that his condition will worsen. Second, “consistent”, in relation to the scarring, is used as a term of art by reference to the Istanbul Protocol terminology and means “the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes”.

On 2 July 2018 GLD wrote on behalf of the National Probation Service to report that the NPS had identified a Home Office approved hostel housing foreign male nationals in the Huddersfield area, and had deemed it suitable.

Immediately prior to the hearing AA produced a witness statement. AA said that:

He had been told that the Home Office would now like to send him to Italy, but he no longer wanted to go to Italy.

He had said in the past that he wanted to return to Italy as he thought it was the only way he was going to be released from detention. He did not know anyone in Italy and he thought he would be homeless if sent there, and the only good option for him was to be released in the UK and have his asylum claim dealt with here.

Detention had made him lose his mind:

He promised, if released, not to abscond.

If he had the choice of challenging his removal to Italy from outside of detention, then that is something he would do because in Italy he would be homeless without any support.

That summarises the evidence as it stood during the hearing. But there has been one further – highly relevant – development since the end of the hearing

On 5 July, whilst this judgment was in preparation, I received an email from AA’s Counsel Mr Denholm that that he was instructed that AA had agreed to return to Italy, and that AA had signed a disclaimer to that effect on 4 July in the presence of an Immigration Officer.

I will begin with the permission application.

I do so because in my judgment, unless there is an arguable challenge to the lawfulness of the present detention of AA, the question of whether I ought to direct AA’s release on an interim basis would not arise. Permission to challenge his ongoing detention is a necessary, but not a sufficient, condition for the grant of interim relief.

I remind myself of the law relating to the Hardial Singh principles.

The power to detain may only be exercised for such period as is reasonably necessary to fulfil the purpose for which it exists: R v Governor of Durham Prison, ex parte Hardial Singh[1984] WLR 704 at 706D, per Woolf J. In R (I) v SSHD[2003] INLR 196 (at [46]) Dyson LJ identified four principles governing the legality of Immigration Act 1971 detention derived from Woolf LJ’s judgment in Hardial Singh:

That formulation of the law was approved by the majority of the Supreme Court in R (Lumba) v Secretary of State for the Home Department[2011] 2 WLR 671, per Lord Dyson JSC at paragraphs [22] to [25]. He held with regard to the first two principles derived from Hardial Singh:

It is for the Court to determine in a given case whether those principles have been complied with: R (A) v SSHD[2007] EWCA Civ 804, per Toulson LJ at [62]. The burden of proof is on the Defendant.

In R (Mahfoud) v SSHD[2010] EWHC 2057 (Admin) Hickinbottom J gave a helpful explanation of the Hardial Singh principles in seven propositions of which propositions (iii) to (v) are particularly pertinent here:

In Lumba Lord Dyson JSC held at [121] that:

There must in any given case be a “sufficient prospect” of deportation to justify detention: see per Richards LJ in R (MH) v SSHD [2010] EWCA Civ 1112 at 67:

Permission to seek judicial review is sought on 5 grounds:

The parties agreed that grounds 1 and 2 stood or fell together, and Mr Denholm’s oral submission focussed on grounds 1 and 3.

Mr Tankel for the Secretary of State submitted that none of the grounds were arguable.

As to Grounds 1 and 2 Mr Tankel contended that at every point in time removal to Italy was, unarguably, sufficiently within prospect within a reasonable time that continued detention was justified, given the Secretary of State’s views as to the risk of reoffending and the risk of absconding.

I disagree. I am satisfied that it is arguable that there came a time when continued detention became unjustified given in particular the apparent lack of progress in arranging a return to Italy and given the very limited information available as to AA’s offence. Although the initial decision to detain seems to me to be unlikely to be capable of successful challenge I do not limit the start time for the challenge in relation to grounds 1 and 2 because I do not have sufficient material to allow me to be confident in identifying any date before which the challenge is clearly unarguable.

I am also satisfied that those challenges are arguable as to the present detention. If removal to Italy is (now) imminent, it may be that detention now is more readily justifiable than it has been in the past, so that it is not unreasonable that AA be kept in detention for a short further period. But even if that is the case, it might be that, had AA been released some months ago, it would not now be reasonable to bring him into detention. Those points are arguable.

Ground 3 asserts that the Secretary of State breached her policy on adults at risk in detention in the light of the Rule 35(3) report dated 4 March 2018. Insofar as this ground depends on a contention that the level of risk ought to have been assessed at Level 3 rather than Level 2 it is unarguable, and Mr Denholm did not seriously contend to the contrary. However the wider basis on which this point is put is that, given the Rule 35(3) report the Secretary of State breached her policy by unlawfully concluding that the immigration control factors outweighed the clear presumption against detention. I consider that part of Ground 3 to be arguable and in in any event it may be difficult to disentangle Ground 3 from Grounds 1 and 2.

Ground 4 is academic because a medical report has been procured, and Ground 5 is academic because accommodation is now, in principle, available. I decline permission on these grounds but that should not be taken to prevent these matters being relied on as part and parcel of the challenge to the lawfulness of detention.

I therefore grant permission on Grounds 1 and 2, and Ground 3 save in relation to the challenge to the Level 2 categorisation.

At the hearing I asked Mr Tankel how long it would be before AA could be removed to Italy, assuming that he wanted to be removed to Italy. He was unable to give me a precise timescale, but noted that the necessary arrangements would include an EU letter, the possible need for escorts, and the arrangement of flights.

Mr Denholm realistically accepted that if his client were to withdraw his asylum claim time to removal was likely to be short given that an EU travel document ought to be capable of being issued quickly.

On the application for release from custody there are obviously competing considerations at play, and, having decided that it is arguable that the present detention is unlawful, I must form my own view on each of the factors as to how it weighs in the balance and whether I ought to direct AA’s release into the accommodation that has now been identified, pending finalisation of the arrangements for his removal to Italy.

Doing the best I can on the limited information presently available as to some of them, the five factors which I consider to be most relevant, and my assessment of each of them, is as follows.

AA has not, over the last week, maintained a settled intention as to whether he wants to return to Italy. Earlier this week his strongly expressed preference was to be released from detention in the UK and to pursue his asylum claim. Before that he had repeatedly said that he want to be returned to Italy. He has now returned to his original position. But it is difficult to be certain that he will maintain a fixed position – or intention - over the next few weeks.

AA has no settled connections in the UK, and would not be able lawfully to work here were he released. AA arrived clandestinely and did not claim asylum before his arrest; after he claimed asylum he absconded within a few days and did nothing to pursue his asylum claim.

I assess the risk of absconding as high, notwithstanding AA’s promise that he will not abscond.

I accept the medical evidence adduced on AA’s behalf and accept that he was on 30 June 2018, and is likely still to be, suffering severe depression, and that continued detention might cause that condition to worsen.

I find this almost impossible to assess in any reliable way on the exiguous material available but I am not satisfied that there is a high risk of reoffending and I am not satisfied that if he were to offend the harm done would be likely to be serious.

Doing the best I can I assess that this is likely to be relatively short, measured in weeks rather than months. Because of the order I propose to make for expedition of the substantive judicial review, this matter should in any event come back before the Court within a month so that the question of continued detention can, if needs be, be reconsidered.

The provisional view I have formed is that the Secretary of State’s attempts to contact the Italian authorities have been dilatory, rather than diligent, but it may be that not all the relevant material is before the Court and I attach little weight to this factor.

Achieving the right balance is difficult. I bear in mind that if I decline to grant interim relief AA’s already lengthy period of detention will continue yet further and his mental condition may deteriorate further. On the other hand if I were to grant interim relief and AA were to abscond, something which I consider to be a high risk, the lengthy process will potentially be back to square one and the fundamental aim, of removing AA from a jurisdiction in which, as things stand, he has no right to be, will be frustrated. I remind myself of Lord Dyson’s observation in Lumba that risk of absconding is of paramount importance, but I should make clear that I do not read that as meaning that absconding (or indeed risk of offending) are factors which trump all others.

Remembering that this is an interim relief application and that it is reasonable to assume that continued detention will be for only a short period, I have decided that the balance comes down against granting interim relief.

I will hear Counsel on directions for the judicial review challenge.

It is now incumbent on the Secretary of State to proceed with haste with the removal to Italy, given that there is no longer any identifiable hindrance to that happening. The Secretary of State will need to keep continued detention under careful and very regular review. Subject to hearing Counsel I propose to direct that, if within 2 weeks of today a removal date within 4 weeks of today (Friday 6 July) has not been set, AA may renew his application for interim relief, and he may in any event renew his application on material change of circumstance being shown.

I am particularly grateful for the helpful and measured submissions of both Counsel.