Bah, R (On the Application Of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, November 02, 2018, [2018] EWHC 2942 (Admin)

Resolution Date:November 02, 2018
Issuing Organization:Administrative Court
Actores:Bah, R (On the Application Of) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWHC 2942 (Admin)

Case No: CO/247/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/11/2018

Before :

ANDREW THOMAS QC

(Sitting as a Deputy High Court Judge)

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Between :

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Hugh Southey QC and Ali Bandegani (instructed by Duncan Lewis) for the Claimant

Tom Brown (instructed by Treasury Solicitor) for the Defendant

Hearing date: 2nd March 2018

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2

Andrew Thomas QC :

  1. This is a claim for Judicial Review relating to the Claimant's detention under the Immigration Act 1971. He was detained with a view to deportation following his completion of a sentence of imprisonment in March 2016. He was detained continuously until his release on the 1st of March 2018.

  2. The Claimant is 23 years old and a national of Sierra Leone. He came to live in the UK in 2010, aged 16. In 2012 he was convicted of robbing a lone female with a knife and also of an offence of attempted robbery. He was sentenced to a detention and training order for 18 months. In 2015, the Claimant was convicted of arson being reckless as to whether life would be endangered. He was sentenced to 18 months detention in a Young Offenders Institution. In 2015, while awaiting sentence for that offence, the was Claimant was diagnosed with Post-Traumatic Stress Disorder (`PTSD') for which he has received counselling and medical treatment.

  3. The Claimant issued the present claim for judicial review in January 2018. He sought a declaration that his detention was unlawful. An application for interim relief was refused but an order was made for an expedited final hearing. The Claimant was released shortly before the final hearing of his claim. The Defendant made it clear that the decision was taken because it had become clear that the Claimant is unlikely to be deported within a reasonable timeframe. The total period of his detention under the Immigration Act 1971 was therefore 23 months.

    The issues in this case

  4. The Claimant's case is that his detention was unlawful (or became unlawful) on three grounds.

    (i) On Ground 1, the Claimant alleges that there were breaches of Rules 34 and 35 of the Detention Centre Rules 2001, relating to failures to perform medical examinations and report on his mental health. He submits that if those assessments had been properly carried out there is a realistic prospect that he would have been released from detention at an earlier stage.

    (ii) On Ground 2, the Claimant alleges that the Defendant failed to apply her own policy on Adults at Risk in Immigration Detention, which came into effect in September 2016. His case is that on a correct application of the policy he should have been released at a much earlier date. He also alleges that the Defendant failed to take reasonable steps to obtain information concerning his mental health (a breach of the `Tameside' duty).

    (iii) On Ground 3, the Claimant submits that it was or became unreasonable to continue his detention applying the `Hardial Singh principles' as restated in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at para 22.

  5. The Defendant admits that there was a failure to provide a Rule 34 medical assessment in June 2016 when the Claimant was transferred to Gatwick IRC. As a result, the Defendant accepts that detention was unlawful for a four week period but states that no more than nominal damages are appropriate.

  6. Otherwise, the Defendant's case is that the Claimant's detention was at all times lawful. The Defendant accepts that he has suffered from mental health difficulties. She submits that considerations of risk to the public and risk of absconding at all times outweighed the apparent risks to the Claimant's health.

  7. A fourth issue arises from evidence of a change in circumstances from November 2017 onwards, when there was a change in the Claimant's diagnosis and also evidence that he was now suffering from an acute episode of mental illness. New information has come to light which bears not only on the severity of the Claimant's pre-existing illness but also suggests the emergence of another condition or conditions.

  8. The Claimant's case has therefore been advanced on two different bases. It is submitted that either his detention was unlawful throughout; alternatively, it became unlawful as a result of a failure to act upon the change in circumstances.

    Evidence of the Claimant's Background

  9. The Claimant was born in 1994 in Sierra Leone. He has given a number of inconsistent accounts about his upbringing. In my judgment, it is right, as the Defendant did, to treat the evidence which his mother and step-father gave at the hearing before the First Tier Tribunal in November 2017 as the most reliable account of his background. Much of his mother's evidence is corroborated in any event by the original account which the Claimant himself gave at the time of his sentencing in 2015. For reasons which are set out below, it is difficult to attach any weight to his subsequent contradictory accounts.

  10. The Claimant lived with his mother until he was about six years old. In 2000, she obtained funding to come the UK as a student. Her present husband (the Claimant's step-father) was already living in this country. The Claimant's mother studied at a university in the UK. She obtained a degree, and now works as a healthcare professional. She lives in the south of England with her husband and three younger children.

  11. The Claimant remained living with his maternal grandmother at her home in Freetown, Sierra Leone. According to his mother, he stayed with his grandmother for most of the period between 2000 and 2010 although he also stayed with an aunt for short periods. His mother remained in contact with the family in Sierra Leone. She telephoned them regularly and visited them on one occasion. Her husband, the Claimant's step-father, returned to Sierra Leone on three occasions and met with the family.

  12. The Claimant attended school in Sierra Leone, although there is an issue as to whether he completed his education there. It is clear from his letters which I have read that he is literate and fluent in English, which is clear evidence of his educational attainment.

  13. In about 2008, the Claimant's mother heard that the Claimant was becoming involved with gangs in Freetown. She decided to bring him to the UK to join her. With his mother's help, the Claimant came to the UK on a settlement visa in 2010 and was granted indefinite leave to remain. He was enrolled at a high school in his mother's home area, and later continued his studies at college. He obtained two BTEC qualifications.

  14. The Claimant's case is that he was traumatised during his childhood in Sierra Leone by witnessing numerous incidents of violence. He has reported seeing fatal stabbings and torchings. It is not clear whether this arose out of his involvement with criminal gangs, or witnessing political violence, or both. The conflict in Sierra Leone largely ended in the late 1990s, but the period which the Claimant is describing is 2000 to 2010. Assessments of this history have been made difficult by the inconsistent accounts which the Claimant has given. Whatever the context of the violence which he saw, or the accuracy of everything he has described, there is no dispute that the Claimant has a diagnosis of PTSD.

    The Claimant's offending

  15. The Claimant lived with his mother and family from 2010 until some time in 2011 or 2012. However, he was asked to move out of the family home because of his disruptive behaviour. At first he went to live with a relative in south London, but again he moved out. He then had periods of homelessness. His account is that he became involved with a gang in South London which was selling drugs.

  16. In 2012, the Claimant pleaded guilty to an offence of robbery. The facts were that he approached a lone female and threatened her with a knife, stealing £100. There was also an offence of attempted robbery (committed the following day) but the facts are not detailed. He was sentenced to a detention and training order for 18 months.

  17. Following his release from custody, the Claimant and his then girlfriend were helped to find accommodation in north London by the Southwark Anti-Violence Unit. The Claimant said that he had stolen from the gang in south London and had received threats of violence.

  18. At some point in early 2015, the Claimant was admitted to hospital following an assault. Whilst in hospital he disclosed that he was worried about his mental health. He refused the offer of a voluntary admission to hospital for treatment.

    The arson offence

  19. On 9th June 2015 the Claimant committed an offence of arson being reckless as to whether life would be endangered. The conviction arose out of a fire at the flat which he shared with his girlfriend.

  20. Support workers had been called to the flat because of reports that the Claimant had been violent towards his girlfriend. The Claimant became agitated during this meeting and threatened to burn the house down. The police were called and he was arrested. After a brief period of detention in police custody, the Claimant was released without charge. He then returned home and immediately started a fire. He did so by setting light to his girlfriend's belongings on top of the cooker. He left the flat with the fire still burning and did not call the emergency services.

  21. The Claimant was subsequently re-arrested and charged with arson being reckless as to whether life would be endangered. He pleaded guilty to the offence and was remanded in custody.

    Pre-sentence reports and risk assessments

  22. Two reports were obtained for the purposes of the sentencing hearing. The first was a report by Dr Anwar, Consultant Forensic Psychiatrist dated 7th September 2015. The...

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