Ilori, R (On the Application Of) v The Secretary of State for the Home Department, Court of Appeal - Administrative Court, December 21, 2017, [2017] EWHC 3355 (Admin)

Resolution Date:December 21, 2017
Issuing Organization:Administrative Court
Actores:Ilori, R (On the Application Of) v The Secretary of State for the Home Department
 
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Neutral Citation Number: [2017] EWHC 3355 (Admin)

Case No: CO/2682/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

MS LEIGH-ANN MULCAHY QC

(sitting as a Deputy High Court Judge)

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Between :

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Ousman Noor (Direct Access Counsel) for the Claimant

Eric Metcalfe (instructed by the Government Legal Department) for the Defendant

Hearing date: 29 November 2017

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Judgment Approved

Ms Mulcahy QC :

Introduction, Issues and Conclusion

  1. The issue for determination in this case is whether the Defendant acted lawfully in maintaining detention of the Claimant, a Nigerian national, in an Immigration Removal Centre following receipt of a report prepared under Rule 35 of the Detention Centre Rules 2001 (``the Rule 35 report'') after 20 May 2016. He continued to be detailed until 31 January 2017 when he was removed to Nigeria. It is common ground that the Claimant's initial detention from 22 February 2016 until 19 May 2016 was lawful.

  2. It was and is accepted by the Defendant that the Rule 35 report dated 18 May 2016 to which she first responded on 20 May 2016 constituted independent evidence of injury possibly attributable to torture.

  3. The question is therefore whether ``very exceptional circumstances'' existed which justified maintaining the Claimant's detention following receipt of that report as required by the Defendant's policy set out in Chapter 55.10 of the Enforcement Instructions and Guidance (``EIG'').

  4. My conclusion, based on the evidence in this case, is that the Defendant was not entitled to continue to detain the Claimant beyond 20 May 2016. This is because:

    i) The Defendant's response dated 20 May 2016, notwithstanding her acceptance that the Rule 35 report constituted independent evidence of injury possibly attributable to torture, went on to apply a definition of torture (attribution to a random act of violence by non-state actors) that she now accepts was not valid within the meaning of her policy, in order to justify continued detention. As a result, she failed to consider whether ``very exceptional circumstances'' existed which justified the Claimant's continued detention.

    ii) Whilst the Defendant's further responses to the Rule 35 report dated 5 July 2016 and 4 August 2016 did consider and conclude that ``very exceptional circumstances'' existed for justifying continued detention, she relied on an alleged ``high risk of absconding'' in circumstances where the factors relied on did not support the alleged level of risk and where, in any event, it was irrational to conclude that the circumstances relied on to justify continued detention were very exceptional as opposed to routine.

  5. In relation to the Defendant's alternative case that, had she acted differently and taken account of all the circumstances she now contends were relevant, the Claimant's detention would have been maintained in any event and that he has therefore suffered no loss, I am unable to conclude that the Defendant has discharged her burden of proof in this regard. Whilst I accept that there may be different judgments made as to whether circumstances are ``very exceptional'' and that this is a judgment for the Defendant as the decision-maker, in my view, none of the factors relied on, individually or cumulatively, are capable of constituting ``very exceptional circumstances'' within the Defendant's policy for the reasons set out in detail below. Accordingly, I reject the Defendant's contention that the Claimant is entitled to only nominal damages and find the Claimant is entitled to compensatory damages in relation to his continued detention after 20 May 2016 and until his removal.

  6. The relevant factual immigration and detention history is as follows.

    The Factual Background

  7. The Claimant, whose date of birth is 11 November 1976, entered the United Kingdom on 8 October 2013 accompanied by his wife pursuant to a visa issued in Lagos on 18 June 2013 which was valid for 2 years. In his visa application in May 2013, he had indicated that he intended to stay for two weeks on holiday.

  8. On 22 April 2014, the Claimant's son was born in the UK.

  9. On 18 June 2015, the Claimant's visa expired.

  10. On 10 January 2016, the Claimant was arrested on suspicion of rape and bailed to return to Bromley Police Station on 22 February 2016. He was served with RED0001 and RED0003 notices as a section 10 Immigration and Asylum Act 1999 overstayer and was granted temporary admission. He was required to report to Becket House on 12 January 2016 as a condition of his temporary admission.

  11. On 12 January 2016, the Claimant reported to Becket House as required.

  12. On 22 February 2016, the Claimant further reported to Bromley Police Station as required by his bail conditions, when he was told that he was not going to be charged or proceeded against as a result of lack of evidence.

  13. The Claimant was then detained under immigration powers in The Verne Immigration Removal Centre.

  14. The Claimant reported that he had separated from his wife some 5 months previously but alleged that he had contact with his son through a third party.

  15. A GCID Case Record Note made on 22 February 2016 stated in relation to the assessment of removability ``Risk of absconding: Low, but nature of the criminal allegation makes this subject more suitable for detention.'' As explained further below, the Claimant places particular reliance on this particular record.

  16. On 23 February 2016, the Claimant informed Healthcare at the Immigration Removal Centre that he was a victim of torture.

  17. Shortly after detention, an Emergency Travel Document (``ETD'') application was completed and a mitigating circumstances interview was conducted by an immigration officer.

  18. On 1 March 2016, the Claimant refused to participate in a telephone interview with the Nigerian High Commission to obtain an ETD on the basis that he intended to submit an asylum claim.

  19. On 2 March 2016, the Claimant claimed asylum.

  20. On 13 March 2016, the Claimant requested Healthcare to have a Rule 35 report prepared in relation to him.

  21. On 30 March 2016, an asylum screening interview was conducted and on 1 April 2016, the asylum interview was conducted.

  22. On 1 April 2016, the Claimant made a request for temporary admission stating that medically he was not fit to be in detention and that, as a victim of torture, his continued detention had led to a state of paranoia. He also stated that his continued absence from his wife and son had denied him the opportunity to perform his paternal functions.

  23. On 18 May 2016, a Rule 35 report was produced and provided to the Defendant. The doctor who signed it ticked the box stating ``I have concerns that this detainee may have been the victim of torture''. The report outlines the Claimant's account of having been tortured in Nigeria and then stated:

    ``Ultrasound has proved the missing testicle however neither my colleague nor me were confident to say this is from his torture or was a congenital malformation. He has a pending Urology appointment, but this may take months. I believe that he is telling us the truths and this brutal injury may lead the testicle absorbed/disappeared. [sic]''

  24. On 20 May 2016, the Defendant responded to the Rule 35 report, maintaining the decision to keep the Claimant in detention. The response stated: ``It is accepted that in the context of considering the appropriateness of your detention under detention policy, this constitutes independent evidence of an injury possibly attributed to torture.'' However, after dealing with the Claimant's account of how he came to suffer the injuries as follows:

    ``You have clearly stated in your substantive asylum interview conducted on 1 April 2016 that you were kidnapped for ransom on 20 July 2013 and held for a period of 29 days before you were released. It is noted that you refer to no other incidents of violence directed towards you until you decided to escape, otherwise you thought you would be killed. You claim to have been able to go to the toilet alone and it was there you made your attempt to escape. You claim to have ran but became tired and hid in a shed for approximately 3 minutes but your kidnappers found you. It was here that you claim they beat you; breaking your leg and injuring your testicle. You claim to have passed out and when you awoke you were in a doctor's house, where your leg had been fixed and you had been given medication.''

    It was then stated:

    ``As a consequence of this, whilst it is accepted that the injuries identified in the Rule 35 report are independent evidence of an injury possibly attributable to torture, it is considered that the fractured leg you sustained and injury to your testicle are attributed to a random act of violence, not an act of torture by the state its authorities or any of its agents.''

  25. On 25 May 2016, the current claim for judicial review was lodged challenging the lawfulness of the Claimant's detention. The claim was issued on 26 May 2016. It raised three grounds for judicial review:

    i) a challenge to detention based on an alleged breach of the principles in R (Hardial Singh) v Governor of Durham Prison [1984] 1 WLR 704;

    ii) a Chapter 55.10 challenge; and

    iii) a Rule 35 report delay challenge.

  26. On 25 May 2016, the Claimant's wife, Ms Yetunde Ilori, also submitted a witness statement describing the difficulties she faced in raising their son in the Claimant's absence.

  27. On 31 May 2016, Her Honour Judge Karen Walden-Smith sitting as a Judge of the High Court refused interim relief and gave directions for filing and service of an Acknowledgement of Service.

  28. On 6 June 2016, the Claimant's asylum claim was refused and certified with an out-of-country right of appeal.

  29. On 15 June 2016, the Claimant again refused to undergo a telephone interview with the Nigerian High Commission which had been arranged on that date on the basis...

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