AA, R (on the application of) v Secretary of State for the Home Department & Anor, Court of Appeal - Administrative Court, July 06, 2018, [2018] EWHC 1739 (Admin)

Resolution Date:July 06, 2018
Issuing Organization:Administrative Court
Actores:AA, R (on the application of) v Secretary of State for the Home Department & Anor

Case No: CO/2352/2018

Neutral Citation Number: [2018] EWHC 1739 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/07/2018

Before :


(sitting as a Deputy High Court Judge)

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Between :

Interested Party

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Graham Denholm (instructed by Wilson Solicitors LLP) for the Claimant

Benjamin Tankel (instructed by GLD) for the Secretary of State

Hearing dates: 3,4 July 2018

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JudgmentNicholas Vineall QC sitting as a Deputy High Court Judge:

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

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


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

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

  5. In May 2015 he claimed asylum in Hungary.

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

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

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

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

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

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

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

    ``9. Assessment of risk of harm to the public.

    The Sex Offences [sic] are considered to be high risk of harm to the public as members of public particularly vulnerable female are at considerable risk


    His most serious offence being Sexual assault on female, he is considered to be a high risk of harm to the public, particularly to vulnerable female''

    The caseworker also assessed the risk of absconding as high. It was noted that a Stage 2 deportation decision letter would be served after 20 days, and that AA could thereafter be removed on an EU letter, and it was recorded that he could therefore be removed within a reasonable time.

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

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

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

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

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

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

    ``(1) Why does it take so long time to remove to Italy if he has already presented all the travel documents?

    (2) What is the current status of the arrangements for his removal to Italy?

    Subject is very frustrated of the fact that he has been detained for so long time and he has not received any communication from his caseworker''

    The immigration officer was not able to comment on any of those issues.

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

    ``The panel note that there has been a delay in the progression of the stage 2 decision being served, a delay in the documentation, and felt the risk assessment in the detention and case progression review was not accurate. If accepted for removal to Italy, then to maintain detention, however if not being removed to Italy, then the Panel strongly agreed that a release referral needs to be submitted.''

    So, in January of 2018, the panel's view appears to have been that if, but only if, AA was accepted for removal to Italy by the Italian authorities, it was appropriate for him to be continue to be detained.

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

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

  22. The Rule 35 report was considered and an Immigration Enforcement officer wrote to AA on 8 March 2018. It was accepted that the claim of ill-treatment met the Level 2 threshold and AA was an Adult...

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