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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> EH, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 2957 (Admin) (08 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/2957.html Cite as: [2018] EWHC 2957 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
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THE QUEEN ON THE APPLICATION OF EH |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
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Julia Smyth (instructed by Government Legal Department) for the Defendant
Hearing date: 16 October 2018
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Crown Copyright ©
Martin Griffiths QC:
The judicial review claims
Background facts
(1) Hardial Singh claim for unlawful detention
"It is convenient to introduce the Hardial Singh principles at this stage… It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46 correctly encapsulates the principles as follows:
(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."
"…the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"On 31 August 2016 an ETD application was forwarded to the Embassy of the Republic of Sudan; on 6 May 2017 an email was sent to the RL Team [i.e. Returns Logistics] asking them to arrange a face to face interview. On 10 May 2017 a response was received from RL informing me a face to face interview was booked for 31 May 2017 and I should email DEPMU to request a transfer movement order.
On 2 June 2017 an email was sent to the RL1 to confirm whether the face to face interview went ahead, or not, and for an estimate timescale for the outcome; on 5 June 2017 their response was received which stated "The subject attended the Embassy but the Embassy Official required a relative's contact number in Sudan, in order to establish the nationality of the subject. The subject stated he will provide a contact number. Please forward the contact number to be obtained from the subject."
The case owner sent an email to HMP High Down asking them to ask [the Claimant] for details of his relatives in Sudan; on 7 June 2017 a response was received from the prison stating he has no relative in Sudan; on the same day, an email was sent to the prison requesting telephone records for [the Claimant] and on 14 June 2017 a response was received from the prison stating "They will post it as they have problem with the fax, therefore full address forwarded to the prison."
On 30 June 2017 telephone records were received and it shows that [the Claimant] has been contacting his mother Nabi Hussin in Arub; on 7 July 2017 email was sent to CSI asking them to contact his mother and find out from her whether she has any relative(s) in Sudan. On 10 July 2017 details of his uncle in Sudan was received and forwarded to the RL and on 11 July 2017 RL forwarded this information to the High Commission and there is no timescale but on 4 August 2017, RL confirmed they have contacted the Embassy; on 16 August 2017 email was sent to the RL for an update and response received…"
"I note the appeal [to the FTT] has been adjourned further and we must closely monitor a new hearing date. I further note efforts to contact relatives in Sudan and efforts with returns Logistics are ongoing. Whilst we continue to push this we must look at obtaining license conditions and a possible release address should this become protracted."
"because [the Claimant] failed to provide any contact numbers of a relative in Sudan, no further action from the Sudanese Embassy can be taken in order to establish his nationality and as such, no further action with the Embassy if we cannot provide a family contact details in Sudan. A referral was submitted to Returns Logistics for another ETD telephone interview appointment to be confirmed and to discuss how to progress ETD."
"I've asked Tim to meet with the Sudanese Embassy – the number of stuck cases are starting to stack up.
There is some light at the end of the tunnel though. The authorities in Khartoum have agreed that we can share fingerprints (for non-compliant cases) for them to check against their national database. We've yet to test this offer – for a number of reasons. But we will press with the authorities again. This will however take some time for us to see through."
"…I have a meeting with the Sudanese Embassy on 16 October (first available date) at which point I will raise this case in person. As suggested… I will ask if [the Claimant's] fingerprints can be shared against their national database.
However I cannot guarantee that the Embassy will comply with our request (given that he was compliant), nor can I provide a timescale for these checks to be completed."
"In principle the Home Office will agree to release offender if you can provide an 'approved premise' which has been deemed suitable by you, and the date he can reside at the address we will release him from detention. I know this can take between 6-8 weeks so I have also requested today that [the Claimant] provide another release address and as soon as I have it I will forward to you."
(2) Delay in providing accommodation or an address for release
"[The Claimant's] case has been assessed for release under current criteria as outlined in Chapter 55 of the Enforcement Instruction and Guidance Manual based on the presumption of release and alongside the Adults at Risk Policy.
[The Claimant] has been convicted of a serious sexual offence; he is noted as a MAPPA Category 1 offender and is required to sign on the sex offenders' register indefinitely. He has been assessed as posing a high risk of harm to the public. [The Claimant] has amassed two convictions with the severity of his offending increasing. It is further noted he has not assessed any of his offending behaviour and has shown poor behaviour in custody. He is considered to pose a high-risk of re-offending.
I note the position of this case. I agree given the barriers at this time we should now finalise a release referral."
(3) Failure to consider the Verney Report on 26 April 2017
"Your representatives have failed to make any representations to rebut the presumption that your crime was particularly serious or that your continued presence in the UK constitutes a danger to the community."
"…it is concluded that section 72 of the 2002 Act applies to you and your application for asylum has been refused on grounds that the Refugee Convention does not prevent your removal from the UK."
"The material facts of your claim have been examined and either rejected, accepted or they remain unsubstantiated."
"It is considered that if you were part of the tribal group you claim to be a member of, you or your legal representatives would have taken some steps to have this independently verified given that this forms the basis of your asylum claim."
"It is therefore considered that not only do you not qualify for Humanitarian Protection, but that also because of your conviction and imprisonment, you have been excluded from a grant of Humanitarian Protection under paragraph 33D(iii) of the Immigration Rules.
Furthermore, notwithstanding that your actions have made you ineligible for Humanitarian Protection, your claim for Humanitarian Protection under Articles 2 & 3 do not breach the threshold for a successful claim.
You stated that there is a real risk that you would be persecuted in Sudan due to the fact that family members were involved with the Justice and Equality Movement (JEM) and that you are a member of the Tunjur Tribe, that your removal would therefore be in contravention of Article 2 or 3 of the ECHR.
However, for the reasons already outlined above, it is not considered that you have demonstrated a real risk of such treatment. It is therefore concluded that your removal from the United Kingdom will not place the United Kingdom in violation of Article 2 or 3.
Therefore, you do not qualify for Humanitarian Protection."
"Your claim has been carefully considered, but you do not qualify for asylum or Humanitarian Protection. Your claim was also considered in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave and you do not qualify.
In the light of all the evidence available, I have decided that you have not established a well-founded fear of persecution so you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended)."
"…the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain."