EH, R (On the Application Of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, November 08, 2018, [2018] EWHC 2957 (Admin)

Resolution Date:November 08, 2018
Issuing Organization:Administrative Court
Actores:EH, R (On the Application Of) v Secretary of State for the Home Department

Neutral Citation Number: [2018] EWHC 2957 (Admin)

Case No: CO/3770/2017




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 08/11/2018

Before :


(sitting as a Deputy High Court Judge)

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Between :

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Victoria Laughton

(instructed by Joint Council for the Welfare of Immigrants) for the Claimant

Julia Smyth (instructed by Government Legal Department) for the Defendant

Hearing date: 16 October 2018

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Martin Griffiths QC:

  1. This is the substantive hearing of an application for judicial review for which permission has been granted by His Honour Judge Dight.

    The judicial review claims

  2. The Claimant (``EH'') is a national of Sudan who has been detained by the Defendant since 5 May 2017. He seeks a declaration that his detention is unlawful, a mandatory order for immediate release and damages pursuant to the declaration that his detention is unlawful.

  3. The Amended Statement of Grounds from the Claimant dated 26 September 2018 puts the application on three bases (re-ordered to reflect the order in which they were argued). First, it is said that EH's detention is unlawful under Hardial Singh principles (ii), (iii) and (iv). Second, it is said that the Defendant has unlawfully acted or delayed in providing EH with or arranging accommodation or an address for release. Third, it is said that EH's detention was initially unlawful because the decision to refuse his protection and human rights claim contained a public law error.

    Background facts

  4. The Claimant's date of birth has been assessed as 1 July 1995, so he is now 23 years old. He arrived in the UK and claimed asylum on 1 October 2013. He claimed to be from the Tunjur tribe in Darfur. On the basis of the relevant country guidance case-law, if he had been accepted as a member of the Tunjur tribe, or any non-Arab Darfuri tribe, he would have been granted asylum.

  5. On 4 December 2013, the Claimant pleaded guilty to common assault and a public order offence and was sentenced to a fine and subjected to a restraining order.

  6. In April 2013, the Claimant committed the serious sexual offence of attempted assault by penetration on a woman in the street after dark. He choked the victim and she feared that she would pass out or die as a result. The sexual assault was violent and sustained. The Claimant only failed to reach the point of actual penetration because the police arrived and were able to intervene and stop him. The victim suffered severe psychological trauma, as well as some physical injuries, to the extent of suffering a breakdown which for a time prevented her from caring for her own children. The Claimant was drunk at the time. He has never shown any remorse, and has engaged in victim-blaming behaviour and refused to accept responsibility. He made protracted attempts to withdraw his guilty plea before sentence, which failed. On 27 May 2015 he was sentenced to 5 years and 10 months imprisonment for this offence and was required to sign the sex offenders register indefinitely. While serving the custodial sentence, he did not engage with programmes available to him to help him address his offending behaviour.

  7. On 16 December 2014 (while the Claimant was in custody awaiting trial), his claim for asylum was refused. The claim that he was a member of a non-Arab Darfuri tribe was rejected.

  8. While in prison awaiting trial, the Claimant was the subject of a psychiatric report from a consultant forensic psychiatrist dated 15 February 2015. He was diagnosed as having an adjustment disorder with mixed anxiety and depressive reaction, rather than a psychotic illness. The report agreed with probation that the Claimant was a high risk for sexual offending, and also a medium risk for general offending. As well as the Claimant's refusal to accept responsibility for the sexual assault for which he was facing trial, the report noted wild, inappropriate and defiant behaviour during his probation interview.

  9. In support of his claim for asylum, the Claimant's advisers obtained a report from Peter Verney (``the Verney Report'') dated 7 April 2015. Mr Verney is a country expert on Sudan. The Verney Report concluded that the Claimant was correct in claiming to be a member of a non-Arab Darfuri tribe. This conclusion has never been accepted by the Defendant and I will return later to the legal action which is proceeding (not in this Court), still unresolved, as a result of that dispute.

  10. Following the Claimant's conviction and sentence for the sexual assault, the Defendant gave notice of a decision to deport him back to Sudan. The Decision Notice was dated 30 June 2015, and a Deportation Order followed on 13 May 2016.

  11. The Claimant has no passport and he therefore could not be deported to Sudan without an Emergency Travel Document (``ETD''). Efforts to obtain an ETD for him were put in train, starting with referral on 25 July 2016 for an ETD interview. To date, those efforts have not succeeded, and he still has no ETD. I will return to the chronology of that in more detail when considering the substantive grounds of the application for judicial review, below.

  12. On 17 November 2016, the Claimant was transferred from prison to a psychiatric hospital under section 49 of the Mental Health Act 1983, which applies to convicted prisoners suffering from mental illness. While he was there, a report from a consultant psychiatrist dated 31 January 2017 diagnosed him as suffering from psychotic illness: initially, severe depressive disorder with psychotic symptoms and, subsequently, catatonic schizophrenia. The report said that his illness was being treated with medication and therapy.

  13. On 27 February 2017, the Home Office agreed to withdraw its previous refusal of the Claimant's asylum application (on 16 December 2014) and its decision to deport him (on 13 May 2016). Instead, it agreed to ``reconsider [his] case in the light of his current circumstances.''

  14. However, its subsequent decisions were also unfavourable to the Claimant's applications. On 8 March 2017, it issued a fresh decision to deport, based on the criminal conviction and sentence, but it noted the claim for asylum which had been made on 1 October 2013. It stated ``That claim has not been considered with this decision''. It invited further representations on that aspect. It drew attention to Article 33 of the UN Convention Relating to the Status of Refugees, which excludes asylum claims when there are ``reasonable grounds for regarding [the claimant] as a danger to the security of the country'' or where, having been convicted of a particularly serious crime, he ``constitutes a danger to the community of the protecting state''. It proposed to apply the presumption in section 72(2) of the Nationality, Immigration and Asylum Act 2002 against the Claimant in both those respects but allowed the Claimant time to rebut the presumptions if he could, at which point ``a decision about whether section 72 applies will be taken on the basis of all available information''.

  15. The Claimant's representatives made submissions resisting deportation in a letter of 5 April 2017. They said he was from a non-Arab Darfuri tribe with a fear of persecution, and enclosed the Verney Report. They said that deportation would be a breach of his Convention rights, including his rights under Articles 2, 3 and 8 of the European Convention on Human Rights, partly because of its effect on his mental health.

  16. The Home Office on 26 April 2017 issued a further decision, rejecting those submissions and refusing the protection and human rights claims. I go into the basis of the rejection in more detail when considering the third ground of the application for judicial review, below.

  17. Shortly before this, it was decided that the Claimant was well enough to go back to prison from the psychiatric hospital, and he was returned to prison, therefore, on 30 March 2017.

  18. On 5 May 2017 the Claimant was released from prison on licence (``the Licence''). He had served the custodial period of his sentence of 5 years and 10 months and the remainder of the sentence was to be served outside prison, on licence, expiring on 1 February 2020. As usual, the terms of the Licence were designed to ensure that, although the Claimant was no longer in prison, the public would be protected, re-offending would be prevented, and he would be helped to resettle successfully into the community throughout the period of the Licence (paragraph 1 of the Licence). To that end, stringent conditions were imposed by the Licence, which ran to 3 pages of detailed requirements and conditions. They included supervision by the probation service, permanent residence at an approved address, a curfew between the hours of 8 pm and 7 am daily, home visits from a mental health worker, attendance at appointments with a psychiatrist or medical practitioner, full cooperation with any care or treatment they recommended, and a requirement to report to staff at approved premises at 2 pm every day. Any breach of the conditions (and, of course, any re-offending) would render the Claimant liable to recall to prison. The conditions of that Licence continue to apply today.

  19. In view of the pending deportation, the Claimant was not, in fact, granted his liberty on release from prison on 5 May 2017. Instead, he was immediately transferred to immigration detention, where he has remained until the hearing before me. A minute of the decision to place him in immigration detention was drawn up on 3 May 2017. He was rated as a high risk for absconding, a high risk of re-offending and a high risk of harm to the public. Outstanding barriers to deportation were listed as the need to obtain an ETD, and a possible appeal. The date for obtaining an ETD was estimated at ``6+...

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