Aboro, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, June 11, 2018, [2018] EWHC 1436 (Admin)

Resolution Date:June 11, 2018
Issuing Organization:Administrative Court
Actores:Aboro, R (on the application of) v Secretary of State for the Home Department
 
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Case No: CO/11972/2012

Neutral Citation Number: [2018] EWHC 1436 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11 June 2018

Before :

KAREN STEYN QC

(sitting as a Deputy High Court Judge)

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Between :

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Sonali Naik QC and Irena Sabic (instructed by Duncan Lewis Solicitors) for the Claimant

Julie Anderson (instructed by the Government Legal Department) for the Defendant

Hearing dates: 7 and 8 February 2018

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JudgmentKaren Steyn QC :

A. Introduction

  1. This is a claim for damages for unlawful administrative detention. It began in 2012 as a challenge to removal directions, but that aspect fell away when the claim was issued.

  2. The Claimant, a Nigerian national, is subject to a deportation order as a ``foreign criminal'' within the meaning of s.32 of the UK Borders Act 2007. He was detained pending his removal by the immigration authorities from 6 August 2012, when his custodial sentence expired, until 23 September 2013, when he was released on bail.

  3. The Claimant accepts that his initial detention was lawful. However, he contends that, having regard to his mental health, his detention was unlawful (a) from 23 September 2012, (b) from 8 November 2012 or (c) from 26 March 2013, in each case until his release on 23 September 2013. By these proceedings, the Claimant contends he is entitled to substantial damages for the tort of false imprisonment.

  4. The issues are these:

    i) First, the Claimant contends that he was suffering from a serious mental illness which could not be satisfactorily managed within detention. His primary case is that his detention was unlawful on the basis that it was contrary to the stated policy in Chapter 55 (Detention and Temporary Release) of the UKBA Enforcement Instructions and Guidance (EIG) only to detain ``those suffering serious mental illness which cannot be satisfactorily managed within detention'' in ``very exceptional circumstances''.

    ii) In the context of his primary case, the Claimant raises an issue as to the intensity of review required when the Court is dealing with a conflict of medical evidence.

    iii) Secondly, the Claimant contends that his detention was unlawful on the grounds it was in breach of one or more of the Hardial Singh principles.

    iv) Thirdly, the Claimant contends that his detention was in breach of article 3 of the European Convention on Human Rights. (The Claimant's amended grounds had also included claims by reference to articles 5 and 8, but these claims were not pursued.)

  5. The procedural history is lengthy and complex but it was common ground that the claim was listed before me for a ``rolled up'' hearing.

    B. Procedural History

    This claim: the detention challenge

  6. This claim was filed, together with an application for interim relief, on 8 November 2012. At that stage, it did not include a challenge to the lawfulness of the Claimant's detention. The Claimant challenged the Secretary of State's decision dated 25 October 2012 to set removal directions. In accordance with that decision, the Claimant was due to be removed from the United Kingdom to Nigeria on 8 November 2012.

  7. The application for interim relief was considered by Lang J, who made an order on the papers, on the date the claim was filed, staying the Claimant's removal for four weeks to enable the Defendant to carry out a psychiatric assessment to determine whether he was fit to fly and fit to be removed from the UK.

  8. The Defendant filed an acknowledgment of service on 28 January 2013. Wyn Williams J refused permission to apply for judicial review on the papers, on 23 March 2013. However, there was no challenge to the lawfulness of the Claimant's detention before him.

  9. On 27 March 2013, the Claimant applied to amend the grounds of claim and for interim relief. Elisabeth Laing QC (sitting as a Deputy High Court Judge) observed that the application to amend was, in effect, an application for leave to bring a new claim that the Claimant's detention was unlawful. By an order dated 12 April 2013 she granted permission to amend the grounds of claim in the form attached to the application notice dated 27 March 2013, as well as making directions for the determination of the application for interim relief and the application for permission.

  10. The Secretary of State filed amended summary grounds of defence on 26 April 2013.

  11. On 2 May 2013 the claim was considered by Mr CMG Ockelton, sitting as a Deputy High Court Judge, at a renewed oral permission hearing. He refused permission and rejected the application for interim relief. His perfected order is dated 13 May 2013.

  12. The Claimant renewed the application to the Court of Appeal. Arden LJ refused permission on the papers on 1 July 2013. However, on 26 July 2013, Laws LJ granted permission to appeal in line with the supplementary note submitted by Ms Naik on 23 July 2013.

  13. In essence, the issue on which Laws LJ granted permission was whether, in the context of a challenge to a decision of the Secretary of State, concerning the application of Chapter 55 of the Enforcement Instructions and Guidance, to detain or continue to detain a ``mentally ill'' offender under immigration statutory powers, it is for the court to determine as a primary decision-maker whether detention was justified in light of the policy (per AM (Angola) v Secretary of State for the Home Department [2012] EWCA Civ 521) or whether the review should be conducted in accordance with classical administrative principles (including the Wednesbury test).

  14. Laws LJ ordered that the case be retained in the Court of Appeal and it was listed to be heard on 27 or 28 January 2014. However, on 24 January 2014, Beatson LJ made an order, by consent, vacating the hearing with a view to it being re-listed as soon as possible after 21 days from the promulgation of the Court of Appeal's judgment in R (Das) v Secretary of State for the Home Department.

  15. Das had been heard by the Court of Appeal on 12 and 13 November 2013 and judgment was given on 28 January 2014: [2014] 1 WLR 3538. The appeal hearing was re-listed to be heard by the Court of Appeal on 4/5 February 2015.

  16. In the meantime, on 17 July 2014, the Court of Appeal gave judgment in R (O) v Secretary of State for the Home [2015] 1 WLR 641. Consequently, on 25 November 2014, Underhill LJ made an order by consent vacating the appeal hearing and remitting the case to the Administrative Court to consider the grounds for judicial review.

  17. By a further consent order dated 29 October 2015, the Administrative Court stayed the claim pending the Supreme Court's judgment in R (O) v Secretary of State for the Home Department, which appeal was listed to be heard by the Supreme Court on 19 and 20 January 2016. The Supreme Court gave judgment on 27 April 2016: [2016] 1 WLR 1717.

  18. The matter was re-listed for a substantive hearing on 10 October 2017, but adjourned at the parties' request. Nicholas Vineall QC, sitting as a Deputy High Court Judge, made an order on 10 October 2017 listing the claim, by reference to the amended grounds of claim dated 27 March 2013, for a rolled-up hearing on 7 and 8 February 2018. He also addressed various applications to admit expert evidence: see paragraph 124 below.

  19. With the permission of the Court, the Secretary of State filed Detailed Grounds of Defence dated 25 September 2017.

    The certification challenge

  20. In parallel, the Claimant brought a separate judicial review claim (CO/5903/2013) on 16 May 2013, seeking to challenge the decision to certify his asylum and human rights claim as clearly unfounded (and to maintain the certificate). Permission was refused on the papers on 10 June 2013 by Michael Kent QC, sitting as a Deputy High Court Judge, and at a renewed oral permission hearing on 18 July 2013 by Leggatt J. Permission was granted by Kitchin LJ on 28 March 2014 and the claim was remitted for substantive hearing by the Administrative Court.

  21. The substantive challenge to the certification was dismissed by Andrew Thomas QC, sitting as a Deputy High Court Judge, on 8 December 2014: R (RA - Nigeria) v Secretary of State for the Home Department [2014] EWHC 4073 (Admin) (``RA II''). In the context of consideration of any article 3 risk arising on the Claimant's return to Nigeria, having regard to the availability of mental health treatment, the judge held at [63]-[65]:

    ``It is clear that the Defendant gave very careful consideration to Dr Bell's report. There is nothing to suggest that the Defendant failed to have regard to his undoubted expertise. The decision letter contains a careful analysis of the contents of the report. However, in my judgment the Defendant was entitled to take into account all of the other material which was available to her. On any view, Dr Sultan and Dr Burrun had far more information available to them than Dr Bell and had been better placed to assess the Claimant.

    ... The Defendant could not ignore Dr Bell's opinion, but she was entitled to take the limitations of his review into account in deciding what weight to attach to it when viewing the case in the round.

    In my judgment, the Defendant was entirely justified in reaching the conclusion that there was no prospect of the Claimant successfully demonstrating to a Tribunal that the `high threshold of Article 3' had been met in the present case.''

  22. Permission to appeal to the Court of Appeal was refused.

  23. The Claimant subsequently brought two other judicial review claims against the Secretary of State, however I understand they are not relevant to the claim of unlawful detention and, in any event, I do not have any information about them.

    C. Disclosure

  24. The Claimant criticises the Secretary of State for not disclosing the Assessment Care in Detention Teamwork (ACDT) records...

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