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

The Claimant is a national of India, now 31 years old. On 25th October 2016 he was detained at Heathrow Airport whilst in transit between South Africa and Canada. He accepts that his initial detention was lawful but claims that he was thereafter unlawfully detained between the 24th of November 2016 and the 27th of January 2017.

The Claimant was identified as a victim of torture and sexual abuse, giving rise to a presumption of release under the Adults at Risk in Immigration Detention Guidance (‘the AAR guidance’) and Chapter 55b of the Enforcement Instructions and Guidance (‘EIG’).

The Claimant’s case is that his detention was contrary to those policies. Alternatively, he claims that his detention was in breach of the second and third ‘Hardial Singh principles’ (as set out in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at para 22).

The Defendant’s case is that at all times she was lawfully entitled to maintain the Claimant’s detention on the grounds that the risk of absconding outweighed the presumption of release, and that the Claimant’s removal was imminent.

There are in reality two central issues in this case

At all times prior to 2016 the Claimant lived in India. He had never visited the UK. However, in 2010 he had made an application for a Tier 4 student visa to come to the UK, along with his wife. That application was refused when it was discovered that false documents had been supplied in support of his application.

In 2015, the Claimant became involved in an organisation promoting LGBT rights. Because of this he came into conflict with an opposing political group in his state. There was a meeting early in 2016 when he had a confrontation with a prominent local politician.

The Claimant’s case is that on two occasions after that meeting he was unlawfully imprisoned and assaulted. The first occasion was in May 2016 when he was seized by police officers and detained in police cells. Members of the opposing political group were present and told him that he was being punished because of what had happened at the previous meeting. He was beaten, stripped naked and photographed. Threats were made about what would happen if he continued with his campaign. He was released the following day.

The Claimant states that about a month later he and another member of the group were seized by four men. They were taken to a private house where they were imprisoned for a number of days. Members of the opposing political group were again present. He was severely beaten, stripped naked and tied to a chair. The physical abuse included assault with a weapon and also significant trauma to his genitals. He suffered rape and serious sexual assault. He was videoed as this took place. The Claimant was eventually released. He required in-patient hospital treatment for nine days following the attack.

Within a few weeks, the Claimant left India. He travelled on a false passport. He went initially to Ghana, then Ethiopia, and then to South Africa. His intention was to travel to Canada where some of his family were already living. He had no intention of entering the United Kingdom.

On 25th October 2016, the Claimant set out to fly from South Africa to Canada. His journey involved changing planes at Heathrow Airport. He was denied boarding onto the onward flight. He was brought to the attention of Metropolitan Police and Border Force officers.

When asked to identify himself, the Claimant gave a false name and presented the forged passport under which he had been travelling. Checks on the passport exposed his deception. When confronted by this, he gave his real name. Border Force officers obtained a scanned copy of his genuine passport. He subsequently told one of the officers that he wanted to claim asylum.

It was submitted that this was a case of someone claiming asylum at the first opportunity. In fact, what the evidence shows is that the Claimant initially tried to deceive the police and Border Force officers. He only claimed asylum when it became apparent that the passport had been identified as a forgery and he was going to be detained.

The screening interview took place that afternoon. The Claimant gave a brief account of his alleged imprisonment and torture. His detention was authorised on 25th October 2016. No complaint is made about this decision, nor about the outcome of the initial detention reviews.

On 14th November 2016, the Claimant underwent a full asylum interview. On 21st November 2016, written representations were made by his solicitors enclosing a letter from the hospital in India where the Claimant had been treated following the second attack. There were also contemporaneous photographs of his injuries. The letter corroborates many of the details of this attack, the injuries caused and the treatment which he received.

The Claimant’s asylum claim was determined on 23rd November 2016. The claim was rejected and certified as totally unfounded. It is important to note the basis on which that decision was taken. The Claimant’s account of conflict with local politicians, imprisonment and torture was not rejected. The decision was taken on the grounds that there was a sufficiency of protection within India and if necessary the Claimant would be able safely to relocate to other areas of that country.

A further review on that date confirmed the Defendant’s detention. No complaint is made about that decision. Also on the same date, a request was made to the Indian High Commission for an Emergency Travel Document (‘ETD’) to permit the Claimant’s removal to India. It was expected that the ETD process would be completed within 6 to 8 weeks, with removal shortly thereafter. The expectation was that the request was straightforward because a scanned copy of the genuine passport was available.

On 24th November 2016 the Claimant underwent an examination by a registered medical practitioner. As a result of his findings, the doctor made a report under Rule 35 of the Detention Centre Rules 2001.

The report recorded details of the Claimant’s account of physical and sexual abuse. The doctor found scarring to the Claimant’s face, legs and arms which was consistent with the account which he had given. The doctor certified that he had concerns that the Claimant may be the victim of torture, but he did not conclude that detention was likely to cause harm. By that stage, the Claimant had already been detained for a month.

As a result of the Rule 35 report, a further review of detention was carried out on 24th November 2016. Mr Jacobs submits that this was the point at which the Claimant should have been released from detention. There was now professional support for the Claimant’s case that he was a victim of torture.

This review made a number of assessments.

In the recommendation section, the reviewing officer began with the fact that the Claimant fell into the Level 2 risk category but went on to say “it is considered that this risk is outweighed by the following factors …”.  The two factors were the risk of absconding and the fact that removal was likely to take place within a reasonable time. The review concluded that detention was suitable under Ch.55 of EIG and that the Claimant was “highly unlikely to be removed without detention”. The authorising officer endorsed the decision, recording his own separate assessment, stating: “I’m satisfied that the negative immigration factors outweigh the risk factors such that continued detention remains appropriate and is therefore authorised.”

On 6th December 2016 an officer from the country liaison team made an entry on the Case Record Sheet. The full text of the entry is:

“Email received from the India HC regarding the direct submission advising the following: The application for Emergency Travel Document, waiting for verification”.

No comment was made about the potential significance of this message.

A detention review was carried out on 20th December 2016. The determinations were in most material respects the same as before. The expected date for receipt of the ETD remained 6 to 8 weeks from the date of request. The email of 6th December 2016 was noted but not commented upon. The assessment of removability was: “Medium. There are currently no applications which act as a barrier to the applicant’s removal, however an ETD is required for removal, the application process for which was requested on 23/11/2016 is currently requiring verification.” The reviewing officer assessed that removal was “imminent” and the authorising officer stated it was “likely to be set within reasonable time frame”.

On the 20th December 2016, the Defendant was served with the claim for Judicial Review. At that stage, the claim was in respect of both the decision to detain and the certification of the asylum claim as clearly unfounded. There was no application for interim relief but on 17th January 2017 the Claimant filed an application for bail.

A further detention review took place on 17th January 2017. This resulted in a decision to maintain detention. The judicial review and bail application were noted. The reviewing officer recorded that the ETD was expected within 4 to 6 weeks of the date of request. Although that differs from the timescale previously recorded, the discrepancy does not materially advance the Claimant’s case. Although detention was maintained, the review shows that active steps were going to be taken to investigate the issue of delay.

Following the review on 17th January 2017, a Casework Officer began chasing for information about the the judicial review and and the ETD. An email dated 24th January 2017, again from the country liaison team, states:

“Please be aware that the [Indian High Commission] were unable to make an agreement on this case based purely on the [passport] copy so sent it off for state verification checks on the 06.12.2016. This process can take a few months depending on the circumstances surrounding the individual case and the state involved.”

A further entry two days later repeats the information that it will take “a few months” and adds:

“Removals team also confirm that this can take up to 58 working days (approx 11.5 weeks)”.

It is understood that this means 11½ weeks from the 6^th December 2016.

This information, which concerns the significance of the verification checks and the fact that additional delay will result, was not from a third party. It came from the Defendant’s own officers within the country liaison team and the removals team. Taking the assessment of the removals team, the net effect was that the timescale had gone from 6 to 8 weeks from date of submission to about 14 weeks, but also with the rather more vague estimate of “a few months”. Also, the fact that verification was required suggests that there was now uncertainty as to whether the scanned copy passport would be accepted as valid.

There were also concerns about delay as a result of the claim for judicial review. The Casework Officer made enquiries to establish whether the claim was likely to be expedited and was told that it was “highly unlikely”.

The Case Record Sheet shows that as a result of this information the case was promptly escalated to senior officers, triggering a further review. On 26th January 2017 the recommendation was made for release, and this was approved the next day. The record of decision states as follows:

“I believe the Claimant’s propensity to use deception and the weakness of his claim and his original intention to go country-shopping to Canada to claim asylum there (rather than the first safe haven he arrived at - the UK) taken together with his lack of ties/address in the UK all mean the negative indicators of immigration non-compliance and likelihood of absconding outweigh, on balance, engagement of the AAR guidance at level 2. However, removal is not imminent and neither are the removal timescales in any way certain at this time. For those reasons (ETD difficulties and JR not being expedited) I am authorising release from detention.”

The legal principles are not in dispute. In this case, the power to detain arose under Section 4(2) and Schedule 2, Paragraph 16 of the Immigration Act 1971, which is a power to detain a person pending removal. The burden of proving that the use of the power to detention was justified falls on the Secretary of State.

The exercise of such powers is subject to the ‘Hardial Singh’ principles. See: R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 All ER 983 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12. They are:

What amounts to a reasonable period depends on all the circumstances of the case. Relevant factors may include: the length of the period of detention; the nature of the obstacles to removal; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on the detainee; the risk of absconding; and any risk of offending. See: R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at para 48; Fardous v Secretary of State for the Home Department [2015] EWCA Civ 951 at paras 37 to 41.

Risk of absconding is an important factor but not a trump card which justifies detention over other factors. In Fardous Lord Thomas CJ said:

“44.

It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case. …

45.

Although the risk of absconding will therefore always be of paramount importance, a very careful assessment of that risk must be made in each case, as the magnitude of that risk will vary according to the circumstances. It may be very great, for example, where the person has, as in this case, a clear track record of dishonesty and a knowledge of how to “work” the controls imposed to regulate immigration in the European Union. Another example where the risk may be high is where the person refuses voluntary repatriation that is immediately available to him. It is important to emphasise that the risk of absconding is distinct from the risk of committing further offences and not dependent on that further risk. The risk of re-offending requires its own distinct assessment.

46.

However, as is accepted on behalf of the Secretary of State, the risk of absconding cannot justify detention of any length, as that would sanction indefinite detention. It is therefore not a factor that invariably “trumps” other factors, particularly the length of detention. It is nonetheless a factor that can, depending on the circumstances, be a factor of the highest or paramount importance that may justify a very long period of detention.”

The Secretary of State should follow her relevant published policies unless there is good reason to depart from them. See: Lumba at para 26. This is now reinforced by the statutory duty in Section 59 of the Immigration Act 2016, which states.

“(1)

The Secretary of State must issue guidance specifying matters to be taken into account by a person to whom the guidance is addressed in determining—

(a)

whether a person (“P”) would be particularly vulnerable to harm if P were to be detained or to remain in detention, and

(b)

if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention.

…

(3)

A person to whom guidance under this section is addressed must take the guidance into account.”

The Court determines the proper boundaries of lawful detention but will have proper regard to any relevant factual determinations which the Secretary of State made at the time. Ultimately, it is for the Court to decide whether the power of detention has been lawfully used. See: R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at para 62.

The Defendant’s policy which was in place at the time of the Defendant’s detention was the Adults at Risk in Immigration Detention Guidance (‘the AAR guidance’) issued under Section 59 of the 2016 Act and also the more detailed instructions set out in Chapter 55b of the Defendant’s Enforcement Instructions and Guidance (‘EIG’). There was a revision of the instructions during this period but it is not material to this case.

The importance of the Defendant’s policies on victims of torture and sexual abuse was explained by Burnett J in EO and others v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) at paragraph 59. The central point is that those who have suffered such abuse in the past are liable to be disproportionately affected by detention. The background to the publication of the 2016 policies is explained by Ouseley J in Medical Justice and others v Secretary of State for the Home Department [2017] EWHC 2461 (Admin). It is unnecessary to rehearse that history here.

Paragraphs 1 to 4 of the AAR guidance contain a statement of purpose. They state:

“1.

… The intention is that the guidance will, in conjunction with other reforms referred to in the Government’s response, lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal. It aims to introduce a more holistic approach to the consideration of individual circumstances, ensuring that genuine cases of vulnerability are consistently identified, in order to ensure that vulnerable people are not detained inappropriately. The guidance aims to strike the right balance between protecting the vulnerable and ensuring the maintenance of legitimate immigration control.

2.

This guidance allows for a case-by-case evidence-based assessment of the appropriateness of the detention of an individual considered to be at particular risk of harm in the terms of this guidance.

3.

The clear presumption is that detention will not be appropriate if a person is considered to be “at risk”. However, it will not mean that no one at risk will ever be detained. Instead, detention will only become appropriate at the point at which immigration control considerations outweigh this presumption. …

4.

… In these cases, an assessment will be made of whether the individual is “at risk” in the terms of this guidance and, if so, the level of risk (based on the available evidence) into which they fall. If the individual is considered to be at risk, an assessment will be made of whether the immigration considerations outweigh the risk factors. Only when they do will the individual be detained.”

Paragraph 6 sets out a number of principles to be applied. The last of these:

“… the greater the weight of evidence in support of the contention that the individual is at risk, the weightier the immigration factors need to be in order to justify detention.”

Under paragraph 7 of the AAR guidance, a person is recognised as ‘at risk’ if they are suffering from a condition or have experienced a traumatic event “such as trafficking, torture or sexual abuse.” Paragraph 9 identifies three levels of evidence in support of the suggestion of risk. Level 2 applies where there is professional evidence, or official documentary evidence, to indicate that the person is at risk.

Paragraphs 13 to 15 state:

“13.

The presumption will be that, once an individual is regarded as being at risk in the terms of this guidance, they should not be detained. However, any risk factors identified and evidence in support, will then need to be balanced against any immigration control factors in deciding whether they should be detained.”

14.

The immigration factors that will be taken into account are:

•

Length of time in detention – there must be a realistic prospect of removal within a reasonable period. …

•

Public protection issues – consideration will be given to whether the individual raises public protection concerns by virtue of, for example, criminal history, security risk, decision to deport for the public good

•

Compliance issues - an assessment will be made of the individual’s risk of abscond, based on the previous compliance record.

15.

An individual should be detained only if the immigration factors outweigh the risk factors such as to displace the presumption that individuals at risk should not be detained. This will be a highly case specific consideration.”

Detailed instructions as to the application of the policy are to be found in Ch.55b of EIG. I consider it unnecessary for the purposes of this judgment to repeat the contents. There is a detailed discussion in the judgment of Ouseley J in the Medical Justice case.

On behalf of the Claimant, Mr Jacobs makes a number of criticisms about the reviews from 24th November 2016 onwards and the manner in which they were recorded. Most of the points can be dealt with briefly.

Mr Jacobs criticises the reviews for the lack of explicit reference to the presumption in favour of release. I reject that submission. Each of the reviews acknowledges that the Claimant was an Adult at Risk then goes on to consider whether the consequent risks were outweighed by the negative factors. That demonstrates that the presumption was in fact being applied.

It is submitted that the wording of the review documents is inconsistent. For example, the authorisation section on the Detention  Review dated 17th January 2017 begins by reciting a summary the AAR guidance which did not appear in previous authorisations. Again, I reject that complaint. Each of the reviews was carried out by a different officer, as was each of the authorisations. The officers have each recorded their own reasons for their decision. The difference in wording shows independent consideration was given.

It is submitted that the communication of the decisions to the Claimant in the monthly progress reports was inadequate. I do not consider that to be material to this case. The document used to record the reasons for the decision was the Detention Review.

Mr Jacobs’ first main point is that the Defendant’s approach to assessing the risk of non-compliance breached the AAR guidance and the instructions in Ch.55b of EIG.

Under the guidance, an individual who has been assessed to be at Level 2 risk should only be detained in specified circumstances. The circumstance relied upon in the present case was that “there are negative indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained”.

In this case, the Defendant was satisfied that the Claimant was highly likely to abscond if released. This conclusion was based on the Claimant’s poor immigration record, including his past attempts to deceive immigration officers in the UK and elsewhere.

Mr Jacobs submits that this approach was incorrect or at least Wednesbury unreasonable. He submits that both the AAR guidance and Ch.55b of EIG only permit actual non-compliance and the making of claims to prevent removal to be taken into account. He further submits that the evidence relied on in the present case does not fall within the list of examples set out as bullet points at page 10 of Ch.55b.

In my judgment, this submission is misconceived for a number of reasons.

Finally, Mr Jacobs submits that it was wrong to refer to the refusal and certification of the asylum claim as a relevant factor going to risk of non-compliance. However, the reason why it was taken into account is explained in the detention reviews, namely the Claimant’s incentive to cooperate with UK immigration authorities was diminished once the decision had been taken to refuse his claim and to refuse him an in-country right of appeal. I am satisfied that this was a relevant consideration, although I doubt that it carries much weight the present case.

I am satisfied that the Defendant was right to conclude as at 24th November 2016 that it was highly unlikely that the Claimant would fail to comply with the arrangements for his removal. I am satisfied that this conclusion is valid even though the reviews do not explicitly set out the pros and cons of measures which might have been used as an alternative to detention. That was unnecessary on the facts of this case.

When deciding whether to detain or to maintain detention, the AAR guidance requires the Defendant to assess the weight of the relevant factors in order to determine whether the presumption of release has been displaced by the negative factors. This is made plain in paragraph 6 where it states “the greater the weight of evidence in support of the contention that the individual is at risk, the weightier the immigration factors need to be in order to justify detention”.

Any person who has been through torture or abuse has by definition suffered a traumatic event, but those events and their potential impact will vary. Assessing the level of risk to the Claimant ought to have involved a consideration of the factual circumstances. The Claimant was at risk on two different grounds: he had experienced both torture and serious sexual asault. The events had taken place less than six months earlier. On the first occasion, the attack had taken place in a custodial setting. On the second occasion, the events were over a prolonged period and the abuse was particularly severe. There is no discussion of those factors in the Detention Reviews.

The Detention Reviews simply state that the Claimant had qualified under the policy at Level 2 but do not show any regard to the factual circumstances which might affect level of risk. In my judgment, it was not enough simply to tick a metaphorical box to say that the Claimant was at risk. The nature, circumstances and timing of the Claimant’s traumatic experiences were an important consideration.

This process also required the Defendant to assess the likely timescale. The Defendant had made the request for the ETD promptly once the claim for asylum had been dismissed. The assessment on 24^th November 2016 was that it would take 6 to 8 weeks, with removal taking place shortly thereafter. The Defendant concluded that this was a reasonable timescale in the circumstances. Mr Jacobs did not criticise this part of the decision. The real question is not the assessment of timescale at this stage but whether (and if so when) it ought to have been reconsidered in the light of the decision of the Indian High Commission to refer the application for verification checks.

Taking all of these matters into account, I am satisfied that the decision on 24th November 2016 to continue the Claimant’s detention was lawful and justified.

The starting point was that the presumption of release applied. It was relevant to take into account the severity of the trauma which the Claimant had reported, the circumstances in which it had occurred and the fact that it was so recent. The Claimant was particularly vulnerable for the reasons already stated. This was a therefore a case where there was strong evidence in support of the contention that the Claimant was at risk.

I am satisfied that the Defendant’s determination that the Claimant was highly likely to abscond if released was entirely justified, and supported by the evidence of his past conduct. At that stage, the Defendant’s belief that removal was likely to take place within a reasonable timescale was both appropriate and supported by reasonable grounds. The conclusion that the risk of harm was outweighed by negative factors was in my view entirely. I accept that there are deficiencies in the recording of the decision. The failure explicitly to consider the factual circumstances was an error, but I am satisfied that it would not have resulted in a different decision. I am satisfied that the decision was both justified and consistent with the Adults at Risk guidance and instructions. The decision was also consistent with the Hardial Singh principles. The decision was justified, but the fact remained that the Claimant should have been recognised as particularly vulnerable: in other words, there was a significant weight of evidence in support of the contention that he was at risk. This degree of risk should have been taken into account at every review.

The email logged on 6th December 2016 indicated a change in circumstances which, it transpires, was likely to have an impact on the length of the Claimant’s detention. The officer who entered that information onto the GCID record was a member of the country liaison team who were dealing with the Indian High Commission. Later events show that the country liaison team were aware of the delays which can result from such checks. It would have been reasonable to expect the officer who made that entry to mention that further delay was likely as a result of this referral. As events showed, it was not enough simply to assume that the reader would know that.

That matter was compounded at the stage of the detention review two weeks later, on 20^th December 2016. The reviewing officer and the authorising officer were required at that stage to consider all of the circumstances of the case and to assess whether detention was still appropriate. The review shows that they were aware of the email. The fact that verification checks had been found necessary should have alerted them to a potential problem. If they did not know the likely consequences, they should have enquired. There is no evidence of any such check being made at that stage. What the review shows is that they assumed that the original time estimate was unaffected.

In my view, there was a failure at the time of the 20^th December 2016 to act with reasonable diligence. The matter ought to have been flagged up on 6^th December 2016, but ultimately the more significant failure was the lack of enquiry at the stage of the detention review. I have already observed that the Claimant was particularly vulnerable. Any change in circumstances which was capable of causing delay ought to have been scrutinised with particular care at the review.

I am satisfied that the failure to obtain this information at the earlier stage had a material impact on the length of the Claimant’s detention. When the enquiries were made at the end of January, both the removals team and country liaison team were able to advise on the likely delay. The conclusion that this was bound to affect the decision to maintain detention is inescapable: that is precisely what happened almost as soon as the information was obtained. Although I recognise that the judicial review proceedings were also a factor in the decision, the plain fact is that it was the realisation that there would be a delay of several weeks or months which led to the decision to release the Claimant on 27^th January 2017. That was the correct and inevitable result of the reassessment.

For the reasons stated, my conclusion is that it should have been apparent to the Defendant by 20^th December 2016 that the Claimant was not going to be removed within a reasonable period. There was a failure to act with reasonable diligence. The Defendant ought to have concluded by that date that continued detention was not justified under the AAR policies nor was it consistent with the third Hardial Singh principle. The Claimant was therefore unlawfully detained from 20^th December 2016 (or so soon thereafter as his release could have been effected) until the date of his actual release on 27^th January 2017.