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Caselaw

Refugee awarded damages for unlawful detention

Posted by Ilham Malik on June 10, 2016

AXD v The Home Office [2016] EWHC 1133 (QB) (13 May 2016)

This was a hearing by the Claimant for compensation (damages) against the Home Office (Defendant) for his unlawful detention. This case was heard in High Court of Justice (Queen’s Bench Division).

Brief facts and chronology

The Claimant was a Somali national who entered UK on 21/04/97 and claimed asylum. His asylum claim was refused in 2000 but he was allowed to stay in the UK on an exceptional basis and was granted settlement status on 12/01/07.

The Claimant had a history of offending which started on 08/03/06 when he was convicted of criminal damage. He was convicted of a number of minor offences until 11/08/08, when he was convicted of ‘unlawful wounding’ . This conviction triggered automatic deportation provisions contained in the UK Border Act 2007 (the 2007 Act) and a Deportation Order was issued on 22/12/08. The Claimant was detained on 30/12/08 and held until he was released on bail on 18/05/09. Whilst detained, the Claimant submitted a new asylum claim on 08/01/09. It did not include a challenge on the basis that he considered his detention unlawful.

The periods of detention relevant to the claim are as follows:

  • A period of 20 months and 21 days from 27/08/09 to 17/05/11
  • A period of 36 months and 8 days from 27/11/11 to 05/12/14

First period of detention (27/08/09 to 17/05/11)

The Claimant was detained on 27/08/09.  His detention was monitored by the Defendant on a monthly basis and it was decided that the Claimant had a high risk of reoffending and absconding and should continued to be detained until he could be deported.

The Claimant’s asylum claim was refused on 28/06/10 however, removal directions were suspended by the European Court of Human Rights (ECHR) under their Rule 39 procedures.

On 08/10/10, the Claimant made an application to revoke the Deportation Order based  evidence and that he could not safely be removed to Mogadishu. The Defendant treated this as a fresh claim and on 17/05/11 and Claimant was granted bail with conditions.

Second period of detention 27/11/11 to 05/12/14

The Claimant was detained on 27/11/11 after having served a prison sentence. The Defendant continued to review the Claimant’s case monthly and his detention was maintained on the same basis as it had before, including that he had a high risk of absconding.

On 29/06/12, the Claimant submitted further representations raising that he would be at risk if removed to Mogadishu due to his sexual orientation and conversion to Christianity.  The Claimant had three asylum interviews on 26/07/12, 17/08/12 and 21/02/13.  He later submitted further representations on 08/03/13.

On 13/05/13, the Defendant served a decision refusing both the asylum claim and the request to revoke the Deportation Order.

The Claimant appealed this decision on 17/05/13.

On 11/07/13, the Claimant’s solicitors submitted an email from Dr. Maloney who had diagnosed him as suffering from paranoid schizophrenia. The  Defendant withdrew her decision for refusal based on this email.

In or about June 2014, the Defendant obtained an expert from Mr Robert Cornish, who saw the Claimant on 09/10/14.  Dr Cornish confirmed the diagnosis of the Claimant’s schizophrenia in a report dated 27/10/14. Four separate psychiatrists confirmed the diagnosis during his detention.

On 04/12/14, the Defendant accepted the Claimant would be at risk if returned to Somalia and the Claimant was released on 05/12/14. He was granted permission to stay in the UK on 17/12/14 and was recognised as refugee on 19/08/15.

The Claimant subsequently applied for compensation for unlawful detention, based on the common law tort of False Imprisonment and the statutory tort under section 8 of the Human Rights Act 1998 (breaches of Articles 3 and 8 of the European Convention for Human Rights.)

Question of Law

The First question of law was whether the detention was in breach of Articles 3 and 8 of the ECHR due to the Claimant’s mental condition and vulnerability.

The Second question for the court was whether the Claimant had been unlawfully detained. The court referred to the Common Law principles set out in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB) :

  • The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
  • The deportee may only be detained for a period that is reasonable in all the circumstances;
  • If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
  • The Secretary of State should act with reasonable diligence and expedition to effect removal.

The Claimant argued that the Defendant breached principles (ii) and (iv) which rendered his detention unlawful.

Decision of the High Court

Article 3 and 8 ECHR Claims

The court considered the evidence regarding the Claimant’s mental health, including  the psychiatric evidence from Dr. Maloney, and the Defendant’s witness Dr. McKay. The court found that it could not “be satisfied beyond reasonable doubt, making findings of primary fact and drawing inferences where appropriate, that the Claimant has or has had paranoid schizophrenia.”

In order to meet the Article 3 threshold the Claimant had to prove that he not only had schizophrenia but also that there was no reasonable doubt about the diagnosis. As a result the Claimant’s case based on breach of Articles 3 and Article 8 of the ECHR was unsuccessful.

Common Law Claim

The court held that the Defendant had adopted an unnecessary restrictive approach by narrowing their options to that of detention or deportation.

In considering of the first detention period, the court found that the Defendant had taken no steps to consider the case between October 2010 and May 2011 and a decision on the Claimant’s further submissions should have been provided by 31/10/10. As such, the Defendant failed to act with reasonable care and efficiency. The court concluded, however, that the Claimant had failed to prove that breach of Hardial Principle (iv) was the reason of any loss and the claim failed in regards to the first detention.

In regards to the second detention period, the court found that the Defendant delayed in finalising the asylum interviews, which should have been completed by the end of September 2012. Following the last interview, the Defendant should have reached a decision by the end of November 2012. Abreach of Hardial Principle (iv) had, therefore, occurred from 01/12/12. The court further found that had the case gone to appeal , the Claimant had had a good chance of winning and that the Tribunal would have likely made a decision by March 2013. As a result, the Defendant was in causative breach of Hardial Principle (iv) by end of March 2013 but not in breach of Hardial Principle (ii).

Following the submission of Dr. Maloney’s report in October 2013, the court found that the Defendant should have obtained an independent psychiatrist by November 2013. He found that it was probable that the psychiatrist would have made a diagnosis of schizophrenia and this would have resulted in the Claimant’s release at an earlier time. Taking in to account the further 4 weeks it took the Defendant to make a decision following the psychiatrist report, the court found the Defendant  in breach of Hardial Principle (iv) from 01/01/14 as “… no one was really prepared to take personal responsibility for any decision to abrogate deportation action and/or release the Claimant. Secondly, that what really drove the decision-making process was the Defendant’s belief, no doubt justified, that the Claimant posed a high risk of reoffending and of absconding. But no one was prepared to proceed along a path of reasoning which looked much further or deeper than this, and which properly engaged the Hardial Singh principles.”

It concluded that the Defendant had been in breach of Hardial Principle (ii) by the end of July 2013.

Conclusion

The court held that the Claimant was not unlawfully detained in his first detention but was unlawfully detained from 01/04/13 to 05/12/14 (20 months and 5 days). There are various breaches of Hardial Singh principles and 01/01/14.

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