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

This claim concerns a judicial review challenge by a Namibian national who entered the UK in 2006, overstayed her leave, thereafter committed several criminal offences and is subject to deportation.

The issues for determination in this case are:

I have concluded that the Defendant’s refusal to treat the Claimant’s submissions in relation to her relationship with her daughter as a fresh claim in light of the evidence submitted was irrational and should be quashed and re-taken. However, I have concluded that the Defendant’s refusal of the Claimant’s fresh protection claim was not unlawful. Further, I find that the Defendant has discharged the burden of proving that the Claimant’s detention after 11 February 2015 was lawful.

On 28 November 2017, I made an anonymity order, by consent, in order to protect the identity of the Claimant’s child and in light of the fact that she had brought a fresh claim for protection.

The relevant factual history is as follows.

The Claimant, a national of Namibia, arrived in the United Kingdom (“UK”) on 26 February 2006 and was granted leave to enter as a visitor for 6 months.

She then departed from the UK on an unspecified date.

On 2 April 2006, the Claimant returned to the UK and was granted leave to enter until 2 October 2006. She then overstayed.

On 7 August 2010, the Claimant was convicted at Highbury Corner Magistrates Court of being drunk and disorderly and assaulting a constable leading to a community order and unpaid work requirement of 40 hours. She was ordered to pay £50 in compensation and £85 in costs.

On 5 January 2011, the Claimant was convicted at Highbury Corner Magistrates Court of destruction or damage to property. She was sentenced to one day’s detention at court.

On 21 April 2011, the Claimant submitted an application for Leave to Remain which was rejected as invalid on 4 July 2011 because the relevant fee had not been paid.

On 2 August 2011, the Claimant was convicted at Highbury Corner Magistrates Court of theft/shoplifting. She received a conditional discharge of 6 months.

On 2 December 2011, the Claimant was convicted at Wood Green Crown Court of breach of a conditional discharge order and arson. She was sentenced to 15 months in custody. She did not appeal against the conviction or sentence.

On 12 January 2012, a liability for deportation letter was issued by the Defendant. The Claimant responded outlining family circumstances.

On 30 July 2012, the Claimant was served with a deportation order.

On 3 August 2012, the Claimant lodged an appeal against the deportation order.

On 15 January 2013, the Claimant’s appeal in the First-tier Tribunal was allowed.

On 13 February 2013, the Claimant’s deportation order was revoked and discretionary leave was granted to the Claimant until 3 January 2014. The Claimant again overstayed.

On 10 May 2014, the Claimant was arrested for breach of the peace whilst under the influence of alcohol.

On 11 May 2014, the Claimant was served with papers as an overstayer and entered immigration detention.

On 28 May 2014, the Claimant applied for the facilitated return scheme which was subsequently refused on 1 June 2014 as she had failed to sign the disclaimer.

On 14 August 2014, the Defendant served the Claimant with a further deportation letter with an out of country right of appeal.

On 10 September 2014, the Claimant appealed against the deportation decision and made an asylum claim.

On 13 October 2014, the Defendant sent a supplementary decision letter dismissing the asylum and human rights claims.

On 10 February 2015, a Rule 35 assessment was undertaken. The author of the report ticked the box which stated that the Claimant “may have been the victim of torture” and after recounting the Claimant’s account stated “Has nightmares and flashbacks and has been diagnosed with PTSD [Post-Traumatic Stress Disorder]. Feels cannot escape this as marks on her body remind her of her past”.

On 11 February 2015, the Defendant’s response to the Rule 35 report was sent. It was drafted by a Mr. Turpin who stated that, “The issues in the report were fully considered and addressed in the ‘Supplementary Decision Letter’ dated 13 October 2014 after you claimed asylum.” He proceeded to record that on 10 September 2014 the Claimant “was interviewed regarding your claim and representations were submitted on 10, 11, 17, 18, 23 and 29 September 2014.” He continued, “The basis of your claim was outlined in the ‘Supplementary Decision Letter,’ notably at paragraph 31.” This was a reference to the specific consideration given to the Claimant’s claim to be a victim of torture, and the Defendant’s rejection of that claim on 13 October 2014. Mr Turpin further recorded that the decision of 13 October 2014 was subject to an appeal, and that the outcome of the appeal was pending. Mr Turpin then stated that:

“The medical practitioner also gave specific mention to you having nightmares and flashbacks and having been diagnosed with PTSD. Also, you feel you cannot escape this as marks on your body remind you of your past. However, the alleged incidents happened in the early 80’s, over 20 years ago.”

On 11 February 2015, an “Ad Hoc Detention Review – Rule 35” was carried out in relation to the Claimant. This stated as follows:

“This review has been completed in light of a Detention Centre Rule 35 report dated 10 February 2015… The information contained in the report has been fully considered and the decision to detain has been reviewed. Account has been taken of [the Claimant’s] claim to have been ill-treated in the early 80’s which resulted in the injuries as indicated in the information provided in the Rule 35 report dated 10 February 2015. It is noted however that the claim is the same as that considered in [the Claimant’s] previous asylum claim. It is the case that her asylum claim has been refused with the First Tier appeal outcome awaited… In light of this, and the fact that [the Claimant] has provided no new evidence to warrant fresh consideration of her asylum claim, it is considered that [the Claimant’s] detention should be maintained.” (sic)

On 12 February 2015, the Claimant’s appeal was dismissed by the First-tier Tribunal. The determination, as relevant to the issues herein, stated as follows:

“26.

The Appellant fears persecution if she were to return to Namibia because of her family, the lack of protection she might receive, the fact that she feels bitter and might attack her family and the fact that she cannot internally relocate. In her skeleton argument Ms Pall argues that the Appellant would face a well founded fear of persecution on grounds that she fears destitution on return to Namibia and that she will not receive adequate treatment in light if (sic) her serious medical conditions.

27.

I do accept that the Appellant may have suffered in the past at the hands of her family and neighbours. The reports that I have before me confirm that this has had a very damaging effect on her and may have lead (sic) to her alcohol abuse and subsequent behaviour.

28.

I cannot find that the Appellant’s fear of her family on return is well founded. As the Appellant has said in interview she is now grown up and they would not be able to hurt her anymore, she says that she will stand up for herself. She is in regular contact with her daughter and grandmother. She has also said that her family will not seek her out.

29.

She may feel very bitter but she has taken steps to control her behaviour as is reflected in the psychiatric report. She has also given up alcohol. There is no reason now why as a mature adult she should fear that she would destroy members of her family.

30.

There are two medical reports. Dr Naguib concludes that in September 2011 the Appellant did not show any evidence of formal mental illness and therefore was not in need of psychiatric treatment or further assessment in hospital. Dr Stamps’ report also found that she did not display symptoms consistent with a diagnosis of post traumatic stress disorder but to have enduring personality change after a catastrophic experience and should be referred for counselling.

…

33.

She is a grown-up woman who can live independently and make her own way in Namibia….

…

37.

The appellant showed me a few cards and photos and messages that she has sent her daughter in the UK. However, it is that (sic) difficult to see how much contact they have had since she was born in 2009. The relationship was turbulent with her daughter’s father and the appellant left permanently in 2010 when she was drinking heavily. I have not been given any further details of her relationship with her daughter.”

38.

In the circumstances I cannot be persuaded that the Appellant has a genuine and subsisting relationship with her daughter it is in the child’s interest to remain with her father (sic). The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits. Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.

39.

She has one daughter in Namibia with whom she could be reunited. Therefore I cannot find that there would be breaches of Article 8 were she to be removed.”

On 19 June 2015, the Claimant was refused bail.

On 24 June 2015, the Claimant made further representations which were refused on 9 July 2015.

On 3 August 2015, the Claimant was refused permission to appeal to the Upper Tribunal. She was then appeal rights exhausted.

On 26 August 2015, the Claimant was again refused bail.

On 16 September 2015, the Claimant made further representations which were refused on 5 October 2015.

On 26 October 2015, the Claimant made a trafficking claim.

On 12 November 2015, the Claimant submitted representations under paragraph 353 relating to the risk of re-trafficking in Namibia and enclosed two medical reports, one from Professor Katona dated 2 November 2015 and the other from Dr Arnold dated 8 November 2015.

On 3 December 2015, the Claimant was again refused bail.

On 11 December 2015, the Claimant’s trafficking claim was rejected by the Competent Authority. That negative reasonable grounds decision expressly considered the report of Professor Katona.

On 16 December 2015, the Claimant was again refused bail.

On 3 March 2016, the Defendant refused the further submissions dated 12 November 2015 under paragraph 353, stating, as relevant:

“Your client’s claim to be a victim of modern slavery

On 11 December 2015, a decision was made to make a negative decision, in regards to your client’s claim to be a victim of modern slavery.

In support of your client’s claim, you provided a psychiatric report, from Dr Cornelius Katona, dated 2 November 2015. This report summarises an assessment, conducted by Mr Katona at Yarl’s Wood Immigration Removal Centre (IRC), on 22 October 2015. In this report, Dr Katona concludes that your client suffers from Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder (BPD). However, it is noted that you refused, on two occasions, to provide the un-redacted notes from the assessment; a satisfactory explanation for these refusals has not been forthcoming.

As your client has failed to provide any new or compelling evidence, there are no reasons to suggest that we should depart from the findings in our letter of 11 December 2015.

Your client’s mental and physical health needs

….

Your client’s medical records, which covers the period January 2015 to 5 February 2016, supplied by Healthcare at Yarl’s Wood IRC, shows that, at present, your client is not prescribed any anti-depressants. However, it is noted that your client regularly attends well-being sessions within the IRC. It is also noted that on 3 December 2015, your client attended an appointment within Healthcare, where a mental health care review was conducted. Your client’s medical records state that they were unclear why your client had been referred to the Mental Health team. The conclusion from this review was that your client should continue to attend well-being sessions.

These medical records further show that your client has attended four psychological well being assessments, on 24 December 2015, 30 December 2015, 13 January 2016 and 25 January 2016. On each occasion, the conclusion was that your client should continue attending well-being sessions. Your client’s mental and physical health is regularly monitored, and treatment is provided when deemed necessary.

…

Whilst your client has provided a psychological report, which claims that she has PTSD and BPD, her medical records indicate that she is not currently receiving any treatment for these conditions. As such, any claim that she will require treatment in the future is purely speculative; therefore, the Tribunal findings remain relevant.

It the absence of evidence to the contrary, there are no reasons to suggest that we should depart from our previous findings.”

On 7 and 8 March 2016, the Claimant submitted further representations under paragraph 353.

On 10 March 2016, the Defendant refused those representations stating:

“Your claims regarding your mental health were fully considered in our letters of 13 October 2014, 5 October 2015 and 3 March 2016, and by the Tribunal on 13 February 2015.

You claim to suffer from Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder (BPD), and have provided a medical report from Dr Katona (sic), dated 2 November 2015, which supports this claim. However, as detailed in our letter of 3 March 2016, you are not currently receiving any treatment for either condition, despite your attendance at regular psychological well-being sessions, within Healthcare at Yarl’s Wood IRC. As such, any suggestion that you will require treatment in the future is purely speculative.

Nevertheless, should you require it, as detailed in our letter of 13 October 2014, psychological treatment is available in Namibia.

You have provided no new, or compelling information, which would suggest that we should depart from our, or the Tribunal’s, findings.”

On 24 March 2016 and 29 March 2016, the Claimant submitted further representations under paragraph 353.

On 31 March 2016, the Defendant set removal directions for the Claimant’s removal from the UK (for 21 April 2016).

On 4 and 6 April 2016, the Claimant made further representations under paragraph 353.

On 6 April 2016, the Defendant refused the Claimant’s further representations dated 24 and 29 March 2016 in which it was claimed that the Claimant had an ongoing and subsisting relationship with her daughter and that removing her to Namibia would breach her rights under Article 8 European Convention on Human Rights (“ECHR”) and contending that consideration should be given to that relationship under section 55 of the Border, Citizenship and Immigration Act 2009. The letter stated, in relevant part, that:

“You have submitted a plethora of documents which you claim is evidence of your client’s relationship with her daughter, including evidence that your client has received visits from her daughter whilst in detention, and cards and letters, to and from your client and [the Claimant’s daughter] and her former partner….

Whilst it is accepted that the evidence provided does indicate that your client does have some form of relationship with her daughter; your client has been absent for almost all of her daughter’s life and as such, any relationship they do have will be extremely limited in nature.

Nevertheless, as stated by the Immigration Judge in your client’s appeal against deportation: “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh”.

Your client has provided nothing which would suggest we should depart from the Tribunal’s findings.

The best interests of your client’s daughter

The best interests of your client’s daughter...were fully considered in our letter of 13 October 2014, in which it was found that the best interests of the child were served by her remaining in the United Kingdom with her father, who has cared for her since her birth. Further to this, in your client’s appeal against deportation, the Immigration Judge found: “…it is in the child’s interests to remain with her father. The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits.”

Safeguarding and promoting the welfare of children is defined in the guidance to section 11 of the Children Act 2004 as:

“protecting children from maltreatment;

•

preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’);

•

ensuring that children are growing up in circumstances consistent with the provision of safe and effective care;

•

and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully.”

There is no evidence before us to conclude that your client’s presence is needed to prevent [the Claimant’s daughter] from being ill treated, her health or development being impaired, or her care being other than safe and effective.

There is no suggestion that [the Claimant’s daughter] relies on your client, either emotionally, or financially. There is no evidence which would indicate that your client has provided financially towards the care of [the Claimant’s daughter], either currently, or in the past.

It is acknowledged that your client’s absence will likely result in some negative emotional impact on [the Claimant’s daughter], but she will continue to live with her father, who will support her as she adapts to life without face-to-face contact with her mother. [She] will continue to attend school where she will have the stability and support which is necessary to complete her education.

As detailed above, the Immigration Judge at appeal found that there is no evidence that your client’s deportation would result in your client losing all contact with [her daughter]. It is noted that your client’s eldest daughter,…, remains in Namibia, in the care of her maternal Great Grandmother, and by your own admission, your client has maintained contact with [the Claimant’s elder daughter], since her arrival in the United Kingdom.

It is acknowledged that indirect contact is not the same as remaining in the family home, or even living separately, but in the same country, however, it is considered that your client could maintain contact with [her daughter], if she wishes. Further to this, there is no evidence that [she] would be unable to visit your client in Namibia. Consequently, it is not accepted that there are factors in your client’s case that would be considered very compelling if [the Claimant’s daughter] remains in the United Kingdom without her.

In the case of your client and her daughter, it is not considered that there are insurmountable obstacles to family life with them being able to continue outside of the United Kingdom, nor has your client provided any evidence which would demonstrate that there are compelling circumstances which will effect (sic) [the Claimant’s daughter], if she remained in the United Kingdom. [She] is a British citizen and can continue to enjoy all the benefits afforded to her as such, upon your client’s return to Namibia.

Whilst our decision to deport your client does not prescribe any outcome, or requirement for [the Claimant’s former partner and daughter], this decision means that your client and [the Claimant’s former partner] are required to make a decision as to whether he and [the Claimant’s daughter] should accompany your client to Namibia, or remain in the United Kingdom.

In the absence of any evidence to the contrary, there are no reasons which would suggest we should depart from ours or the Tribunal’s findings. ”

On 12 April 2016, the Claimant sent a Pre-Action Protocol letter of claim.

On 18 April 2016, the Defendant rejected the further submissions dated 4 and 6 April 2016 and responded to the Pre-Action Protocol letter, stating (inter alia) that:

“You and your client have submitted a number of documents to support your claim that your client has maintained contact with her daughter….during her imprisonment and detention. However, whilst it is accepted that the evidence provided does indicate that your client does have some form of relationship with her daughter; your client has been absent for almost all of her daughter’s life, and as such, any relationship they do have will be limited in nature.

It is noted that in the Witness Statement of [the Claimant’s former partner], dated 11 April 2016, it states: “I have now visited M with [the Claimant’s daughter] at Yarlswood IRC between 4 – 5 times. The most recent visit was on 5 April 2016. We spend 3 hours at Yarlswood IRC, between 2 pm and 5 pm and [the Claimant’s daughter] is very happy playing with her mother and they complete homework together and enjoy a good family life.”

It is noted that as your client has been detained since 11 May 2014, a period of almost two years, it would appear that direct contact with [her daughter] was extremely sporadic. As such, any relationship your client had with [her daughter] is assumed to have been maintained via in-direct methods of communications. This is at odds with your claim that your client would be unable to maintain contact with [her daughter], using these same methods of contact, upon her return to Namibia.

Nevertheless, as stated by the Immigration Judge in your client’s appeal against deportation: “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh” .

Your client has provided nothing which would suggest that we should depart from the Tribunal’s findings.

Whilst it is accepted that you have provided a number of document’s (sic) which have not previously been submitted, it is not accepted that this evidence significantly differs from that previously considered by the Secretary of State and the Tribunal; as such there are no reasons apparent which would suggest that we should depart from our, or the Tribunal’s findings, in respect to your client’s claims to family life in the United Kingdom.

….

Note is also taken of the letter written by [the Claimant’s daughter], in which she expresses that she misses her mother, and her wishes for her mother to be released from Yarl’s Wood Immigration Removal Centre.

Whilst it is accepted that your client’s deportation will have a negative emotional effect on [her daughter], any impact is a direct result of your client’s actions.

Your client has been convicted of a very serious offence, one which fully engages the public interest in securing her removal, and none of the claims made constitute very compelling circumstances sufficient to outweigh that interest.

It is noted that you have provided evidence of your client’s contact with [her daughter] during her detention; however, this evidence does not suggest that the nature of her relationship with [her daughter], has strengthened, or differs significantly from that which was considered by the Tribunal, which found that claims to family life with a child did not outweigh the public interest in securing your client’s deportation..

Your client has not lived as part of family unit with [her daughter] since November 2010, and since this date, she has spent 3 years and 3 months, either serving her custodial sentence, or detained. It is accepted that prior to her imprisonment, and between periods of detention, your client utilised her visitation rights, as directed by the Court Order; however, by [the Claimant’s former partner’s] own admission, your client has only seen [her daughter] four or five times in the past two years.

There is no evidence which would suggest that [her daughter] relies on your client to meet her day to day care, particularly given your client’s absence in her life, due to imprisonment and subsequent detention. There is no evidence which would suggest that your client provides any unique or essential care for [her daughter] that she would not be able to receive from an alternative source.

Your client has provided nothing which would suggest that she provides for [her daughter] financially, or that she provides any unique, or essential care her. It is noted that due to your client’s own actions, she has been removed from enjoying a relationship with her daughter, for a significant period of time.

As per the case of Devaseelan, your client has not provided any new, or compelling evidence, which would suggest that we should depart from the Tribunal’s settled findings.

….

You claim that our decision to deport your client the Secretary of State has failed to take into account [the Claimant’s daughter’s] rights under Article 24 of the EU Charter of Fundamental Rights.

…

As detailed above, the best interests of your client’s daughter,…., have been fully considered, and it has been concluded that her best interests are served by remaining in the United Kingdom with her father.

As detailed above, the Tribunal found: “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.

Your client’s deportation, in accordance with primary legislation, remains in the public interest and no information has been provided which would suggest that we should depart from the Tribunal’s settled findings.

…

It has been concluded that your client’s submissions do not meet the requirements of paragraph 353 of the Immigration Rules and do not amount to a fresh claim. This is because these submissions are not significantly different from the evidence that has previously been considered.”

On 20 April 2016, the Claimant issued judicial review proceedings and the following day, the Defendant cancelled the Claimant’s removal directions in light of this.

On 16 May 2016, the Defendant filed her Acknowledgement of Service and Summary Grounds of Defence.

On 8 June 2016, permission for judicial review was refused by Upper Tribunal Judge Rimington.

On 15 September 2016, the Claimant amended her claim for judicial review.

On 21 October 2016, Upper Tribunal Judge Kopieczek transferred the claim for judicial review to the High Court because the claim included a challenge to the lawfulness of detention.

On 30 November 2016, Mr John Howell QC, sitting as a Deputy High Court Judge struck out Claim CO/5045/2016 and in relation to the instant claim (CO/5573/2016), ordered that the Claimant’s application for permission to amend the grounds of claim in the current claim be listed at the same time as the oral renewal of permission.

By way of an Amended Statement of Facts and Grounds dated 19 December 2016, the Claimant challenged the following:

On 10 February 2016, the Defendant filed Amended Summary Grounds of Defence.

On 13 April 2017, the Claimant applied for interim relief.

On 4 May 2017, the Claimant was granted bail.

The Claimant was released from detention on 9 May 2017, following the provision of accommodation within section 4 Immigration and Asylum Act 1999.

On 17 May 2017, Mr Peter Marquand, sitting as a Deputy High Court Judge, granted the Claimant’s application for permission on Ground 1 (fresh claim) and Ground 2 (unlawful detention) as set out in the Amended Statement of Facts and Grounds. It is these issues which have come before me for a substantive hearing.

The issues which arise for determination on the fresh claim ground are as follows:

The issues which arise for determination on the unlawful detention ground are as follows:

I will set out the relevant legal and policy framework and then turn to address each issue.

Following the withdrawal by the Claimant of a paragraph in her skeleton argument (paragraph 9.3) which was contentious as between the parties, there appeared ultimately to be little, if any, dispute between the parties in relation to the test the Court should apply as to whether the Defendant’s decisions in relation to whether the Claimants’ further submissions amounted to fresh claims are lawful.

Paragraph 353 of the Immigration Rules provides the following:

“Fresh Claims

When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)

had not already been considered; and

(ii)

taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

Whether further submissions constitute a fresh claim on asylum or human rights grounds is a matter for the Defendant. A decision as to whether a fresh claim arises can only be reviewed on Wednesbury unreasonableness grounds (R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768, 785D).

In R (on the application of WM (DRC)) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 the Court of Appeal considered the task of the Defendant when considering further submissions and the role of the Court when reviewing such a decision. The question for the Defendant is whether there is a realistic prospect of success in an application before an Immigration Judge.

In AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535 the Court of Appeal confirmed that the question which the Defendant must ask herself is “whether an independent tribunal might realistically come down in favour of the applicant’s asylum or human rights claim, on considering the new material together with the material previously considered” per Toulson LJ at [23]. As explained by Buxton LJ, in WM, in answering that question the Defendant must be informed by anxious scrutiny of the material.

In relation to the task of the Court, Buxton LJ confirmed that the decision remains that of the Defendant and her determination is only capable of being impugned on Wednesbury grounds (irrationality). He stated at paragraph [11] that when reviewing a decision by the Defendant, the Court will ask two questions:

That the approach in WM applies in paragraph 353 cases was confirmed in R (TK) v Secretary of State for the Home Department [2010] EWCA Civ 1550 and MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193.

The approach that the Immigration Tribunal is required to take to further evidence where there is a previous determination by the Tribunal is set out in Devaseelan[2002] UKIAT 000702 at paragraphs [39-41]

“39.

In our view the second Adjudicator should treat matters in the following way.

(1)

The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the appellant's status at the time was made. In principle issues such as whether the appellant was properly represented or whether he gave evidence, are irrelevant to this.

(2)

Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.

(3)

Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.

40.

We now pass to matters that could have been before the first Adjudicator but were not.

(4)

Facts personal to the appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute). It must also be borne in mind that the first Adjudicator's determination was made at a time close to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the addition of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.

(5)

Evidence of other facts – for example country evidence may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.

41.

The final major category of case is where the appellant claims that his removal would breach Article 3 for the same reason that he claimed to be a refugee.

(6)

If before the second Adjudicator the appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim is in essence the same evidence as that available to the appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the appellant at the time of the first determination’. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the appellant, he must be taken to have made his choices about how it would be presented. An appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion."

Article 8 ECHR provides a right to respect by public authorities for private and family life, home and correspondence. It is a qualified right and must be balanced against the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others.

On 13 June 2012 the Secretary of State for the Home Department laid before Parliament a Statement of Changes in Immigration Rules (HC 194), the relevant paragraphs of which came into force on 9 July 2012 (“the family and private life Rules”).

Section GEN.1.1 of Appendix FM provides the following summary of the objective of the family and private life Rules:

“Purpose
GEN.1.1. This route is for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection (and the applicant cannot seek leave to enter or remain in the UK as their family member under Part 11 of these rules). It sets out the requirements to be met and, in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. It also takes into account the need to safeguard and promote the welfare of children in the UK.”

The Courts have considered whether a two-stage approach is required in considering applications made under the Immigration Rules – i.e. an assessment of an application against the relevant Immigration Rules followed by an assessment against the relevant Article 8 jurisprudence. In MF (Nigeria) [2013] EWCA Civ 1192, the Court of Appeal held at [46]:

“There has been debate as to whether there is a one stage or two stage test. If the claimant succeeds on an application of the new rules at the first hurdle i.e. he shows that para 399 or 399A applies, then it can be said that he has succeeded on a one stage test. But if he does not, it is necessary to consider whether there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation. That is an exercise which is separate from a consideration of whether para 399 or 399A applies. It is the second part of a two stage approach which, for the reasons we have given, is required by the new rules.”

Article 8 is not an absolute right. When considering the impact of removal the Defendant must balance the individual’s rights to a private and family life in the United Kingdom, against the maintenance of effective immigration control. In Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075, Dyson LJ stated at [20]:

“[t]he existence or non-existence of family life for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties.”

If the existence of an Article 8 right is established, the case-law states that contracting states are permitted to interfere with the enjoyment of that right provided that certain conditions are satisfied. Any assessment of an Article 8 claim must therefore be viewed in light of the United Kingdom’s right to control the entry of foreign nationals into its territory and the necessity of fair and consistent immigration control.

The need for firm, fair and consistent immigration control has been recognised by the Courts (for example, in Huang v Secretary of State for the Home Department [2007] UKHL 11 at [16] and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 at [32]). States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (for instance, AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 at [58-61]).

Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all but a small minority of cases, identifiable only on a case-by-case basis (R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 at [20]).

As to the question of the proportionality of removal, the House of Lords has stated in Huang v Secretary of State for the Home Department [2007] UKHL 11, that even among Claimants who have established a family or private right, those entitled to succeed under Article 8 because the proposed interference was disproportionate to the end to be achieved, would be “a very small minority” (at [20]).

In VW (Uganda) and AB (Somalia) v Secretary of State for the Home Department[2009] EWCA Civ 5, Sedley LJ observed that in order for a measure to be disproportionate, the consequences for the individual need to be more than mere hardship or a mere difficulty or mere obstacle. There is a seriousness test which requires the obstacles or difficulties to go beyond matters of choice or inconvenience.

The question of how much weight should be given to the different factors in a given case will vary according to the specific circumstances. In Maslov v Austria [2008] ECHR 546 the Strasbourg Court said (at [70]):

“The court would stress that while the criteria which emerge from its case-law and are spelled out in the Boultif and Üner judgments are meant to facilitate the application of Art 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case.”

As provided in the Immigration Rules:

“A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.

A398. These rules apply where:

(a)

a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;

(b)

a foreign criminal applies for a deportation order made against him to be revoked.

398.

Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and:

…

(b)

the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months;

…

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399.

This paragraph applies where paragraph 398 (b) or (c) applies if –

(a)

the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i)

the child is a British Citizen; or

(ii)

the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

and in either case

(a)

it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b)

it would be unduly harsh for the child to remain in the UK without the person who is to be deported;

…

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a)

the person has been lawfully resident in the UK for most of his life; and

(b)

he is socially and culturally integrated in the UK; and

(c)

there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

Sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002, entitled “Article 8 of the ECHR: Public Interest Considerations” gives statutory expression to the above provisions.

As set out at section 117C (Article 8: additional considerations in cases involving foreign criminals):

“(1)

The deportation of foreign criminals is in the public interest.

(2)

The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3)

In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4)

Exception 1 applies where—

(a)

C has been lawfully resident in the United Kingdom for most of C's life,

(b)

C is socially and culturally integrated in the United Kingdom, and

(c)

there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5)

Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6)

In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)

The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

In respect of the public interest in the deportation of foreign criminals, as explained by Jackson LJ in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, by reference to s.32(4) UK Borders Act 2007, “That is a statement of public policy enacted by the legislature, which the courts are obliged to respect.” (at paragraph [11]). Jackson LJ expressly approved the judgment of Laws LJ in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550:

“The importance of the moral and political character of the policy shows that the two drivers of the decision-maker's margin of discretion – the policy's nature and its source – operate in tandem. An Act of Parliament is anyway to be specially respected; but all the more so when it declares policy of this kind.”

He continued at paragraph [22]:

“Section 117C(1) of the 2002 Act, as inserted by the 2014 Act, re-states that the deportation of foreign criminals is in the public interest. The observations of Laws LJ in SS (Nigeria) concerning the significance of the 2007 Act, as a particularly strong statement of public policy, are equally applicable to the new provisions inserted into the 2002 Act by the 2014 Act. Both the courts and the tribunals are obliged to respect the high level of importance which the legislature attaches to the deportation of foreign criminals.”

and at [26]:

“it is important to bear in mind that the new Part 5A of the 2002 Act is framed in such a way as to provide a structured basis for application of and compliance with Article 8.”

In relation to the issue of the assessment that the Article 8 European Convention on Human Rights (“ECHR”) was bound to fail before a putative First-tier Tribunal, the Claimant relies on Zoumbas v Secretary of State for the Home Department[2013] UKSC 74; [2013] 1 WLR 3690 in which the Supreme Court set down the following principles (at paragraph [10]):

“(1)

The best interests of a child are an integral part of the proportionality assessment under Article 8 ECHR.

(2)

In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration.

(3)

Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant.

(4)

While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations are in play.

(5)

It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations.

(6)

To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an Article 8 assessment.

(7)

A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.”

However, as the Defendant points out, the decision under consideration in Zoumbas and the judgment itself both preceded 28 July 2014, on which date the immigration rules were revised (HC 532) and Part 5A (sections 117A to 117D) of the Nationality, Immigration and Asylum Act 2002 were brought into force. Both of these provisions emphasised within the context of the Article 8 proportionality exercise, the particular public interest in the deportation of foreign criminals such as the Claimant (paragraphs 398 and 399 / section 117C).

However, the Defendant also relies on Zoumbas in that it was confirmed at paragraph [19] that:

“the status of the well-being of the children as a primary consideration did not require the Secretary of State in every case to consider the children's best interests first and then to address other considerations which might outweigh those interests. There is nothing to bar the official who acts for the Secretary of State from considering the various issues, including the proportionality exercise under article 8 ECHR before drafting the decision letter. The official set out the Secretary of State's conclusion before explaining the reasons for that conclusion. It is important to read the decision letter as a whole and to analyse the substance of the decision.”

Further, it was held in that case that the fact that the decision letter set out the Secretary of State’s conclusions briefly did not give rise in that case to any inference that there had not been careful consideration (paragraph [22]) and the Secretary of State was not obliged to record and deal with every piece of evidence in her decision letter (paragraph [23]).

The assessment of the child’s best interest must focus on the child, while simultaneously evaluating the reality of the child’s life situation and circumstances. The child’s best interests have a freestanding character: Kaur (children’s best interest/public interest interface) [2017] UKUT 00014 (IAC) at [18], although it is right to note that this case did not involve the application of the immigration rules or Part 5A of the 2002 Act regarding foreign criminals.

The Claimant relies on the decision of the Upper Tribunal in Abdul (section 55 – Article 24(3) Charter) [2016] UKUT 00106 which determined that Article 24 of the EU Charter of Fundamental Rights creates a free standing right. Article 24(3) mandates that every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both her parents, unless that is contrary to his or her interests. The Claimant places reliance on Article 24(3) as part of considering the best interests of the child. The Defendant questions the relevance of the Abdul decision given that the Immigration (European Economic Area) Regulations 2006 are not in issue in this case.

Section 55 of the Borders Citizenship and Immigration Act 2009 obliges the Defendant to devise systems and structures for the purpose of safeguarding and promoting the welfare of children who are in the UK. What is required of the Secretary of State by section 55 of the 2009 Act was considered by the Upper Tribunal in JO and Others (section 55 duty) Nigeria [2014] UKUT 00517 (IAC). The substance of the primary duty must be properly acknowledged, the relevant children must be identified and their best interests must then be considered, to be followed by a considered balancing exercise. In assessing the best interests of the affected child, the decision maker must be properly informed. Furthermore, it must be apparent from the terms of the decision that the best interests of the child, as assessed, are ranked as a primary consideration and accorded a primacy of importance. The second duty imposed by section 55 is to have regard to the statutory guidance promulgated by the Defendant: Every Child Matters – change for children, November 2009.

Children must be recognised as rights holders and not just as adjuncts to other people’s rights: see Lady Hale in Makhlouf v SSHD (NI) [2016] UKSC 59.

In relation to the fresh protection claim, assessment of the risk that the Claimant will be trafficked on return to country of origin necessitates attention to the Claimant’s history and circumstances, including mental health and vulnerability to exploitation, age, gender, marital status, domestic circumstances, availability of family support as well as the prevalence and patterns of trafficking in the country of origin, in this case Namibia (see for example TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC), para 119(h) and HD (Trafficked women) Nigeria CG [2016] UKUT 00454 (IAC), para 190).

Article 4 ECHR which is the prohibition on slavery and forced labour protects an individual against a risk of trafficking: Rantsev[2010] 51 EHRR 1. It is a right which is absolute, unqualified and fundamental, described as protecting ‘the basic values of a democratic society’: Rantsevat [62].

Article 4 is justiciable before the Immigration Tribunal as it is one of the ECHR rights protected by the Human Rights Act 1998. The Tribunal can make a finding as to whether the Claimant was a victim of trafficking and consequently whether she is likely to be at risk on return, even if the Competent Authority has made a negative decision: MS (Trafficking – Tribunal’s Powers –Article 4 ECHR) Pakistan [2016] UKUT 226. The Immigration tribunal is better equipped than the Competent Authority to make pertinent findings in relation to whether an individual is a victim of trafficking, not least because it will have the advantage of hearing live evidence: see paragraph 46 of MS (Trafficking – Tribunal’s Powers – Article 4 ECHR) Pakistan [2016] UKUT 226.

Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 provides a power of detention pending administrative removal as follows:

“If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending–

(a)

a decision whether or not to give such directions;

(b)

his removal in pursuance of such directions.”

The power to detain in such circumstances is prescribed by the principles established in R. v Secretary of State for the Home Department ex parte Hardial Singh [1984] 1 W.L.R. 704 (“the Hardial Singh principles”). As explained by Richards LJ in R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597 at [29]:

“iii)

Subject to the limits imposed by the Hardial Singh principles, the power to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the court. The role of the court is supervisory, not that of a primary decision-maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power conferred on him by the statute.”

The Defendant’s policy on the exercise of the power to detain is set out in the Enforcement Instructions and Guidance (“EIG”).

Paragraph 55.10 provides that categories of persons “normally considered for detention in only very exceptional circumstances” include “those suffering serious mental illness which cannot be satisfactorily managed within detention”, “those where there is independent evidence that they have been tortured”, and “Persons identified by the Competent Authorities as victims of trafficking.”

Detention in an immigration removal centre is subject to the Detention Centre Rules 2001 (SI 2001/238). Rule 35 states as follows:

“(1)

The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

(2)

The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(3)

The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

(4)

The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5)

The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”

The Detention Rule 35 Process Guidance sets out the process to be followed by Home Office staff in response to a Rule 35 report. This includes guidance as to whether the Rule 35 report constitutes ‘independent evidence of torture’ for the purposes of Chapter 55.10 EIG:

“Because each case will be different, it is not possible to provide definitive guidance on when a rule 35 report will constitute independent evidence of torture. However, it must have some corroborative potential (it must “tend to show”) that a detainee has been tortured, but it need not definitively prove the alleged torture. The following pointers may assist:

• A report which simply repeats an allegation of torture will not be independent evidence of torture;

• A report which raises a concern of torture with little reasoning or support or which mentions nothing more than common injuries or scarring for which there are other obvious causes is unlikely to constitute independent evidence of torture;

• A report which details clear physical or mental evidence of injuries which would normally only arise as a result of torture (e.g., numerous scars with the appearance of cigarette burns to legs; marks with the appearance of whipping scars), and which records a credible account of torture, is likely to constitute independent evidence of torture.”

Section 3(ii) of the Process Guidance continues:

“Very exceptional circumstances could arise where, for example, release would create an unacceptably high risk of absconding, of reoffending or of harm to the public. There will not be very exceptional circumstances in the case of a routine detention absent other reasons, e.g., a removal without a high absconding risk or harm issue — see Ch. 55 of the EIG. The full circumstances applicable to the detainee and their reasons for detention must be considered, in order to establish whether there are very exceptional circumstances that mean detention is appropriate notwithstanding the rule 35 report.

In some cases where the rule 35 report is accepted as independent evidence of torture, there may nevertheless be further information which renders the overall account of torture wholly incredible. Such information may form the basis of an assessment that there are very exceptional circumstances making detention appropriate.

For instance, it may be right to detain in very exceptional circumstances if, despite the existing independent evidence of torture, there is a court determination which was made with sight of a full medico-legal report and which dismisses the account of torture, or there is evidence such as visa match evidence which very clearly shows that at the time the detainee claims to have been tortured in one location, he was in fact enrolling biometrics and applying for a visa in another location. Because genuine confusion may be an issue, caution must be exercised in such a consideration.”

“Independent evidence” of torture is not the same as proof of the same (see R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 at [29-30]). What is required is “necessarily something beyond the say so of the person concerned” (R (EO and others) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) at [68]).

In EO Burnett J (as he then was) stated:

“69 ….The policy gives some help with what may inform whether there are very exceptional circumstances. It refers to the need to weigh risks to the public of releasing convicted offenders with particular care. A very high, rather than routine, risk that the detainee will abscond might well also provide a proper basis for maintaining detention. The rubric is such that a host of factors may come into play.”

The Court of Appeal in R. (on the application of Das) v Secretary of State for the Home Department [2014] EWCA Civ 45, stated that detention policies such as chapter 55.10 provide broad guidance about how discretion to detain should be exercised. Such policies should not be interpreted as having the same effect as statute (per Beatson LJ at [47]). The construction of the Defendant’s policies and questions as to whether they were applied correctly are matters for the court. If the policies have been applied correctly, the Defendant's conclusion on their application can only be challenged on Wednesbury grounds.

In R (BA (Eritrea)) v Secretary of State for the Home Department [2016] EWCA Civ 458; [2016] 4 WLR 101 (the “BA” case) the Court considered when a Rule 35(3) report constituted independent evidence of torture.

These three pointers were specifically considered in BA.

It was further stated (at paragraph [46]) that

“The fact that the Tribunal has found the evidence unconvincing does not alter its status as independent evidence of torture. It does not cease to be evidence because it, or evidence to the same effect, was not accepted. As Burnett J noted in EO’s case [2013] ACD 116 para 68 the underlying credibility of the detainee is irrelevant to the question whether something amounts to independent evidence of torture. Credibility is critical when evaluating the claim, but as Burnett J observed, “that does not mean that a piece of evidence which supports his central claim is any less ‘independent evidence’ even if, in the end, the claim is rejected”.

Finally, the Defendant is not under an obligation to interrogate a detainee’s medical records or to obtain a psychiatric assessment where there is “a mere possibility that a detainee, or potential detainee, might be suffering from a mental illness which might trigger Chapter 55.10 EIG” (R. (on the application of DK) v Secretary of State for the Home Department [2014] EWHC 3257 (Admin) at [181] per Haddon Cave J).

In relation to the first ground of challenge, I have to consider whether the Defendant’s view that the further submissions dated 12 November 2015, as well as those of 7, 8, 24 and 29 March 2016 plus those of 4, 6 and 12 April 2016, taken together with the previously considered material, did not create a realistic prospect of the Claimant succeeding before an Immigration Judge was irrational/Wednesbury unreasonable, bearing in mind the need for anxious scrutiny (i.e. the need to give proper weight to the issues and to consider the evidence in the round).

Fresh claim – relationship between Claimant and her daughter

I will first address the issue of whether the Defendant’s decision to refuse to treat the Claimant’s further representations concerning her family life in the UK, most notably with her daughter, was lawful.

As stated above, Article 8 consideration under the Immigration Rules based on paragraph 398(b) is that:

“the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months”

The same public interest principle is set out at section 117C of the 2002 Act (“Article 8: additional considerations in cases involving foreign criminals”).

In order for Article 8 to overcome the public interest in the Claimant’s deportation, it would have to be shown firstly, that she has a genuine and subsisting parental relationship with her daughter (paragraph 399(a) and s.117C(5)), and secondly, that her deportation to Namibia would be “unduly harsh” upon her daughter (paragraph 399(b) and s.117C(5))..

These propositions were not accepted by the First-tier Tribunal which, in its decision of 12 February 2015 found:

“37.

The Appellant’s daughter in the UK is in the custody of her father. Her daughter is a British citizen and I have noted the details of the Contact Order. The Appellant showed me a few cards and photos and messages that she has sent her daughter in the UK. However, it is that difficult to see how much contact they have had since she was born in 2009 (sic). The relationship was turbulent with her daughter’s father and the Appellant left permanently in 2010 when she was drinking heavily. I have not been given any further details of her relationship with her daughter.

38.

In the circumstances I cannot be persuaded that the Appellant has a genuine and subsisting relationship with her daughter it is in the child’s interest to remain with her father (sic). The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits. Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.

39.

She has one daughter in Namibia with whom she could be reunited. Therefore I cannot find that there would be breaches of Article 8 were she to be removed.”

The Defendant concluded in her letter of 10 March 2016 that the Claimant had provided no evidence to suggest that the nature of her relationship with her daughter “differs significantly from that considered by the Tribunal.”

The Claimant’s further representations enclosed a witness statement from the Claimant’s former partner who was the father of her daughter and documents emanating from the Claimant’s daughter written to or about the Claimant.

In her response letters dated 6 and 18 April 2016, the Defendant set out detailed reasons why it was not accepted that the deportation of the Claimant would amount to an unjustified interference in the Article 8 rights of either the Claimant or her daughter, essentially on the basis that there was no evidence to conclude that the Claimant’s presence was needed to prevent her daughter from being ill-treated, or her health or development being impaired and no suggestion of either emotional or financial reliance on the Claimant and that contact with her daughter could be maintained from Namibia. It was further stated that whilst the evidence did show some form of relationship between mother and daughter, due to her absence for almost all of her daughter’s life, any relationship they had would be limited in nature. It was noted that the child’s father’s evidence was that they had visited the Claimant in detention 4-5 times for 3 hours at a time. However, the Defendant pointed to the statement of the First-tier Tribunal that “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh”. The Defendant pointed to the fact that the Claimant had been convicted of “avery serious offence, one which fully engages the public interest in securing her removal, and none of the claims made constitute very compelling circumstances sufficient to outweigh that interest.”

The Claimant’s case is that the starting point to consider the strength and substance of the fresh claim relating to the relationship between the Claimant and her daughter is the determination of the First-tier Tribunal dated 13 February 2015. It is said that at that time there was no evidence at all from the Claimant’s daughter or her former partner and daughter’s father, as to the relationship between mother and daughter. In the further representations dated 24 March 2016 and 12 April 2016, the Claimant’s former partner provided a statement and 3 letters, all post-dating the decision of the First-tier Tribunal which included details of the level of contact between the Claimant and her daughter, the likely detrimental impact on the daughter if the Claimant was deported and his opinion that it would be in the daughter’s best interests for her mother to be granted leave so she can exercise fully her family life with her daughter. The Claimant’s former partner also clarified that it was no longer his intention to move permanently to Ireland with his daughter, as had been the case when he sought and was granted a court order in October 2014. In April 2016, he and his daughter were settled and living in London and he was expressly encouraging the relationship between his daughter and the Claimant. The representations also enclosed evidence from the daughter expressing her wish for her mother not to be deported. It is said that the evidence is relevant to two issues: (a) whether the Claimant has a genuine and subsisting relationship with her daughter and (b) whether it would be unduly harsh for the daughter to remain in the UK without her mother. The Claimant contends that it cannot be said that the evidence was incapable of leading to a positive conclusion before a putative immigration judge, bearing in mind that the judge would be likely to hear live evidence from the entire family.

The Claimant argues that the Defendant has not asked herself the correct question which is not whether the Defendant considers that the new claim is a good one or should succeed but whether there is a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, thinking that the Claimant could satisfy the criteria identified above (genuine and subsisting relationship and unduly harsh on daughter to remain in the UK without her mother).

It is further said that the conclusion is irrational: the evidence which is presented in the fresh claim may concern the same subject matter but is quite clearly different in nature and strength than anything submitted previously. Most notably, at the First-tier Tribunal Hearing in January 2015, there was no evidence at all from the Claimant’s daughter or her father.

It is also said that the requirement that the Defendant apply anxious scrutiny to the assessment of the fresh claim test is clearly not met. It is said that this is best illustrated by examining the way in which the Defendant deals with the Claimant’s daughter’s best interests. The fresh claim introduced the Claimant’s daughter’s voice into the fresh claim, thus she was entitled to consideration as a child rights holder, and not just a conduit of rights of her mother. She and her father provided evidence of why it would be in her best interests for her mother to remain in the UK - so that she can foster and develop a direct and meaningful relationship with the Claimant. It is said that it is not in dispute that the Claimant’s daughter’s best interests are to remain with her father (as was the case at the time of FTT decision in February 2015). However, the evidence presented in the new claim demanded a further and fuller consideration of whether it is in the Claimant’s daughter’s best interests for her mother to remain in the UK and the effect on her if her mother is permanently excluded from the UK, bearing in mind that in the absence of exceptional circumstances the Home Secretary would not even consider whether to re-admit the Claimant to the UK within 10 years of the date of deportation (paragraph 391(1) of the Statement of Changes in Immigration Rules (1994) HC 395, as amended). The need for a careful and balanced assessment on these points is said to be heightened in light of the Defendant’s duty under section 55 and Article 24 of the EU Charter of Fundamental Rights.

Finally, it is contended that the Defendant’s conclusion that the ‘submissions are not significantly different from the evidence that has previously been considered’ is lacking in any or any adequate reasoning as to why a putative Tribunal is bound to reject the Claimant’s fresh claim.

Further, the Claimant contends that the refusal of the asylum claim was premised “on the understanding that [the Claimant’s daughter] would move permanently to Ireland with her father”.

It is the Defendant’s case that, in respect of the evidence from the Claimant’s former partner, she reasonably formed the view that this did not meet the paragraph 353 threshold. Further, as to the evidence from the daughter herself, the Defendant contends that the documents referred to were not mentioned in either the Amended Detailed Statement of Facts and Grounds dated 19 December 2016 or the Claimant’s Reply of 15 September 2017. Further, it is contended that the documents relied on did not express the child’s “clear wishes for her mother not to be deported” and did not “introduce…[the Claimant’s daughter’s] voice into the fresh claim” as submitted by the Claimant. The Defendant maintains that they cannot evidence “a genuine and subsisting relationship with her daughter” which the First-tier Tribunal held the Claimant had failed to establish.

The Defendant states that it is incorrect to assert that the refusal of the asylum claim was premised on the understanding that the Claimant’s daughter would move permanently to Ireland with her father. It is contended that as noted at paragraph 95 of the Defendant’s decision of 13 October 2014, her daughter could not move to Ireland as the Claimant did not consent to her obtaining a renewed passport and that in any event the fact that her daughter had subsequently remained in the United Kingdom did not avail the Claimant of a fresh claim for the detailed reasons set out in the Defendant’s letters of 10 March 2016, 6 April 2016 and 18 April 2016.

Having considered the material relied upon and the submissions made by both sides, I have come to the conclusion that the decision of the Defendant that the further submissions relating to the Claimant’s relationship with her daughter, taken together with the previously considered material, did not create a realistic prospect of the Claimant succeeding before an Immigration Judge was Wednesbury unreasonable, bearing in mind the need for anxious scrutiny (i.e. the need to give proper weight to the issues and to consider the evidence in the round). This is for the following reasons:

Accordingly, I am not satisfied that the decisions dated 6 and 18 April 2016 applied the correct test or asked the right question in relation to the issue of the relationship between the Claimant and her daughter and/or satisfied the requirement of anxious scrutiny (see in particular paragraph 68 above). I make it clear that I am not expressing any conclusion about whether the Defendant could rationally have reached the conclusion that she did; rather that I am concerned as to the manner in which the issues were approached and whether it was considered in accordance with the approach which has been identified in the case-law as the one the Defendant must follow. Accordingly, I will quash the decisions of 6 and 18 April 2016 and require the material submitted to be reconsidered by the Defendant and a fresh decision made.

I was told at the hearing that the Defendant is in any event going to be revisiting this particular issue in the context of yet further evidence recently submitted by the Claimant to her in support of a fresh claim which consists of further witness statements from the Claimant and her former partner and a detailed report from an independent social worker which further addresses the up-to-date relationship between the Claimant and her daughter during the period since the Claimant was released from detention in May 2017. The documents were provided to me in advance of the hearing to keep the Court informed of these developments but as was made clear by Ms Sabic at the hearing, the Claimant was not seeking to rely on this fresh evidence for the purpose of the claim. The Defendant, whilst not accepting that paragraph 353 submissions had already been made to her, accepted that she would have to review and make a decision on the new material. If that proposed review is still outstanding, the consideration of the material previously submitted and which is the subject of this claim can be undertaken in addition to the review of the new material.

I turn now to address the second issue under Ground 1, namely whether the Defendant’s decision to refuse to treat the Claimant’s further representations concerning her claim for international protection as a fresh claim was lawful.

Fresh protection claim

The Claimant alleges that she is at risk of persecution on account of being a victim of trafficking who is vulnerable to further exploitation on her return to Namibia.

On 12 February 2015, the First-tier Tribunal concluded, in light of the evidence of Dr Naguib and Dr Stamps, that there was no evidence of formal mental illness and no symptoms of PTSD (at paragraph 31). Whilst it was accepted that the Claimant had suffered in the past at the hands of family and neighbours (paragraph 27), it was concluded that the Claimant was a woman capable of living independently, that there was regular contact with her daughter and grandmother (at paragraph 28) and she had said that her family would not seek her out.

The report of Professor Katona stated that the Claimant fulfilled the criteria for PTSD and Borderline Personality Disorder and identified that the main cause was the prolonged, severe and early onset of physical and sexual abuse and exploitation by the Claimant’s aunt’s family in the UK. He concluded that the Claimant’s ‘presentation is clinically plausible’ (paragraph 6.6). Professor Katona specifically addressed the opinion of Dr Stamps and Dr Naguib and provided reasons as to their differing diagnostic conclusions (paragraph 6.7). He said that her clinical presentation was in keeping with trafficking to the UK (in section 9) and that without specialist therapy, the Claimant was extremely vulnerable to exploitation if she was returned to Namibia (paragraph 10.3).

The Defendant’s decision on the fresh protection claim is dated 3 March 2016.

The Claimant’s case is that in relation to the fresh claim relating to the risk of re-trafficking made by way of submissions on 12 November 2015, the task of the Defendant was to assess whether the new evidence, in particular from Professor Katona, was capable of raising a case with a realistic prospect of success before the Immigration Tribunal and that she had failed to do so, wrongly relying on the failure to provide un-redacted notes of Professor Katona’s interview with the Claimant following requests made by the Defendant. The Claimant argues that those notes could not have any bearing on the clinical opinions expressed by Professor Katona. It is said that the report had materially altered the factual basis of the Claimant’s protection claim and that the value of Professor Katona’s report lay in making a clinical assessment of the Claimant’s mental health and her vulnerabilities to further exploitation in light of her mental health. His report was not intended to make any findings as to veracity of the Claimant’s factual account. That was a matter for the Defendant and, in the event of a fresh claim being accepted, for the Immigration Tribunal. The role of Professor Katona was to assist the decision maker by providing on opinion in his area of expertise, namely the Claimant’s mental health. It is for that reason that Professor Katona made it clear in his report that: “The information given in this report is based on the history provided directly to me by [the Claimant], together with my own observations. The report does not rely on material from any other source unless specifically stated. The absence of an event does not mean that it was not described to me and nothing in my summary of [the Claimant’s] account should be taken as a finding of fact in relation to her fresh claim against deportation from the UK.”

In light of the above, the Claimant submits that it was irrational for the Defendant to reject the opinion of Professor Katona in its entirety because of the failure to provide the un-redacted notes, and it was still less rational for the Defendant to conclude that a putative Immigration Judge was also bound to reject Professor Katona’s report for that reason.

In oral submissions, the Claimant contended that the First-tier Tribunal’s reasoning was based on a lack of vulnerability on the part of the Claimant but that the report of Professor Katona undermined that factual finding. It was argued that it is not an answer to a fresh claim to say that the claim is hopeless because the Competent Authority rejected it and that whilst it was open to the Defendant not to believe the Claimant; it was not open to her to reject the medical assessment.

It was argued that even if the Defendant was entitled to treat the failure to provide the un-redacted notes as a reason for rejecting Professor Katona’s report (which is not accepted), this matter ought properly to be left to a Tribunal Judge’s assessment of what weight to place on his report. The Claimant accepts that the Defendant was not bound to accept the medical expert’s opinion but that the Defendant could not have rejected it without contrary medical evidence or adequate reasoning. Here, it was said, there was no medical evidence of equivalent quality to discount the diagnosis given by Professor Katona. Further, the Defendant did not question Professor Katona’s qualifications, specialisation or experience, the quality of his reasoning, and the extent to which any conclusions related to established diagnostic criteria. The Defendant’s treatment of Professor Katona’s evidence was said plainly to offend the principle that the Defendant should have given careful and specific consideration to the opinion expressed by a medical expert. Finally, it was argued that the Defendant’s assessment of the relevant test under paragraph 353 lacked reasoning as to why the protection claim, in light of Professor Katona’s report, does not have a realistic prospect of success before a putative Tribunal.

The Defendant’s case is that the Claimant’s claim to be a victim of trafficking was comprehensively dismissed by the Competent Authority in its detailed refusal decision of 11 December 2015. In support of her claim, the Claimant’s previous solicitors had produced Professor Katona’s report dated 2 November 2015. Significantly, as noted by the Competent Authority, its request to see the un-redacted notes of Professor Katona’s interview with the Claimant was twice refused by the Claimant’s previous solicitors. The reason for the requests was stated to be due to the stark difference in the Claimant’s account as recorded by Professor Katona, compared to that which appeared in the reports prepared by two earlier psychiatrists, Dr Naguib and Dr Stamps, in their reports dated 28 September 2011 and 2 December 2011 respectively.

The Competent Authority noted Professor Katona’s statement that, “nothing in my summary of [the Claimant’s] account should be taken as a finding of fact in relation to her fresh claim against deportation from the UK.” In terms of the account provided by the Claimant, the Competent Authority had stated:

“It is considered that you have given inconsistent information about your life in Namibia and that the accounts you have given, regarding the “abuse” you claim to have suffered in relation to being treated like a domestic worker, cannot be wholly relied upon as being truthful or accurate” and that the Claimant’s account of her time in the UK “significantly undermines your claim to have been trafficked.”

It concluded:

“Professor Katona has concluded that your clinical presentation is in keeping with your having been trafficked. Professor Katona may have been unaware that you had visited Norway and that you had control of your own travel documents before arriving in the UK in April 2006. He states that you have given “a clear account of being persuaded to come to the UK for your own benefit and that being forced to work against your will and being restricted in her movements, with her protests ignored and the promises made to her being unfulfilled” (sic) This is refuted. There is no clear account given about your journey to the UK, except where you have stated that you had visited Norway first and had made an independent choice not to stay there.

In conjunction with his statement that, “… nothing in my summary of [the Claimant’s] account should be taken as a finding of fact in relation to her fresh claim against deportation from the UK” Professor Katona’s conclusion that your clinical presentation is in keeping with your having been trafficked is not accepted because there is no evidence that your case meets the definitions of trafficking or modern slavery.”

Professor Katona’s notes were belatedly disclosed on 10 November 2017 and the Defendant points to the fact that, consistent with the matters raised by the Competent Authority, these notes do not record that the Claimant “visited Norway” or that she “had control of [her] own travel documents before arriving in the UK in April 2006.”

The finding of the Competent Authority regarding the potential risk faced by the Claimant upon her return to Namibia was said to be consistent with that of the First-tier Tribunal, which recorded in its decision of 12 February 2015:

“28.

I cannot find that the Appellant’s fear of her family on return is well founded. As the Appellant has said in interview she is now grown up and they would not be able to hurt her anymore, she says that she will stand up for herself. She is in regular contact with her daughter and her grandmother. She has also said that her family will not seek her out.”

It was against this background that the Defendant noted in her letter of 3 March 2016 that although Professor Katona’s report “claims that she has PTSD and BPD, her medical records indicate that she is not currently receiving any treatment for these conditions. As such, any claim that she will require treatment in the future is purely speculative: therefore, the Tribunal’s findings remain relevant… In the absence of any evidence to the contrary, there are no reasons to suggest that we should depart from our previous findings.” It is said that this reasoned decision was perfectly open to the Defendant.

The Defendant asserted that the Claimant’s lengthy Pre-Action Protocol letter which followed subsequently on 12 April 2016 contained no suggestion that the Claimant was a victim of trafficking and did not assert that she had legitimately made a fresh claim to such effect. The Claimant in response stated that “nothing turns” on this omission.

The Defendant contends that the Claimant has grossly oversimplified the comprehensive rationale recorded on 11 December 2015, as adopted in the Defendant’s letter of 3 March 2016, and that in addition, the letter of 3 March 2016 proceeded to further consider the Claimant’s “fear of persecution at the hands of her family”, “mental and physical health needs”, “[risk of] destitution upon return” and “risk of harm and reoffending” under each relevant heading.

In addition, the Defendant points to the diametrically contrasting account which the Claimant provided to Dr Naguib and Dr Stamps produced for the purpose of the Claimant’s Crown Court trial which put it on notice regarding the potential inaccuracy of the information provided to Professor Katona.

I have carefully considered the report of Professor Katona, the decision of the Competent Authority on the trafficking claim and the Defendant’s response to the fresh protection claim dated 3 March 2016. I am unable to conclude that the Defendant’s view that the further submissions in relation to the fresh protection claim, taken together with the previously considered material, did not create a realistic prospect of the Claimant succeeding before an Immigration Judge was irrational/Wednesbury unreasonable, bearing in mind the needs of anxious scrutiny (i.e. the need to give proper weight to the issues and to consider the evidence in the round). This is for the following reasons:

Accordingly, I have concluded that the Defendant’s refusal of the Claimant’s fresh protection claim was not unlawful and reject the Claimant’s claim in this regard.

There is no issue about the lawfulness of the Claimant’s detention prior to 11 February 2015.

As stated above, the issues which arise for determination on the unlawful detention ground are as follows:

The Claimant alleges that her detention after 11 February 2015 was unlawful because:

It is common ground that the burden is on the Defendant to satisfy the Court that the detention was lawful.

The Defendant’s case is that:

In relation to the Rule 35 report, whilst it is not as clear as it should have been, I accept the Defendant’s contention that Mr Turpin was indeed rejecting the report as providing independent evidence of torture as a result of:

I further consider that Mr Turpin was entitled, on the evidence, to conclude that the Rule 35 report was in the second category set out at paragraph 109 above (the second bullet point in the guidance) as being a report which raised a concern of torture but with little reasoning or support or which mentioned nothing more than common injuries or scarring for which there were other obvious causes and which was unlikely to constitute independent evidence of torture.

The Claimant’s asylum appeal had failed some two days after the Rule 35 report and had raised similar allegations regarding torture and trafficking as were raised by the Rule 35 report.

It is also relevant that the Claimant’s former solicitors wrote on 12 November 2015 enclosing Professor Katona’ report stating that the Claimant “now” had independent evidence of torture and that the Claimant had been a victim of trafficking. Accordingly, the Claimant’s own legal representatives did not appear to have considered that the Rule 35 report in and of itself constituted independent evidence of torture.

In relation to Professor Katona’s report and the lawfulness of detention after 12 November 2015, there was and remains a lack of clarity as to when that report was received by the Defendant for the purpose of a review of the lawfulness of detention as opposed to for other purposes. It was apparently sent to Ms. Hopper of the Criminal Casework Directorate (it is said by the Claimant, for three separate purposes) and was certainly considered by the Competent Authority in relation to the trafficking claim. However, no decision was made in relation to its relevance to detention until the Defendant’s letter dated 3 March 2016 several months later and there exist several letters from Ms Hopper stating that the report had not been enclosed and asking for it to be sent to her.

So far as the impact of Professsor Katona’s opinion on the lawfulness of detention was concerned, I have concluded that it was reasonably open to the Defendant to conclude that Professor Katona’s report did not tend to show that the Claimant was “suffering serious mental illness which cannot be satisfactorily managed within detention” within the definition of chapter 55.10 EIG. Whatever issues may or may not exist regarding whether the Claimant was in fact suffering from any mental illness, the Claimant’s mental health did appear to have been satisfactorily managed within detention. I also find that compared against Professor Katona’s report, which had the limitations I have already set out above, it was reasonably open to the Defendant to prefer the findings reached by the First-tier Tribunal, which accorded with its own assessments of the Claimant’s psychiatric health and the fact that the Claimant had not received treatment for either PTSD or BPD.

In relation to the Hardial Singh challenge, I do not accept the Claimant’s contention that the Defendant was unreasonable in concluding that she was removable within a reasonable period of time. She was subject to a deportation order as a result of criminal offences and was consistently assessed as posing a high risk of absconding, a medium risk of re-offending and a high risk of harm to the public. This assessment does not appear to me to be seriously challenged, notwithstanding any support the Claimant may have received from support organisations. Further, it is clear that the length of the Claimant’s detention was in very large part due to the fact she submitted a large number of claims to prevent her removal. It is also of relevance (albeit that the Defendant was, of course, subject to her own duty to review the lawfulness of detention) that the Claimant’s detention was the subject of repeated independent review by the First-tier Tribunal through the five bail applications she made to the First-tier Tribunal, all of which were unsuccessful, until her final successful application on 4 May 2017.

In summary, I conclude that the Defendant has discharged the burden of proving that the continued detention of the Claimant after 11 February 2015 and/or after 12 November 2015 was assessed against the correct policy and was lawful and I reject the claim in this regard.