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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Suleyman, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 208 (Admin) (12 February 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/208.html Cite as: [2016] EWHC 208 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/02/2016

Mr Justice Holroyde:

1. This is a renewed application for permission to apply for judicial review. Permission was refused on the papers by Sir Stephen Silber, sitting as a High Court judge.
2. At the oral hearing of the renewed application I was assisted by the submissions of Mr Bandegani for the Claimant, and Mr Kohli for the Defendant. I am grateful to them both.
3. On 14^th May 2015, the Claimant was detected unlawfully entering this country in a lorry which had travelled from France. She had no documentary proof of her identity but gave the name by which she is referred to in this action, and said she had been born in Ethiopia on 7^th February 1996. She claimed asylum. She was taken to an Immigration Removal Centre, and on 17^th May 2015 she was moved to the Yarlswood IRC, where she remained until 7^th September 2015.
4. The Claimant disclosed that she had previously been in Italy and France. A fingerprint check showed that she had previously claimed asylum in Italy. That was on 16^th April 2011. She had then identified herself to the Italian authorities as India Mehammad, born in Ethiopia 7^th February 1992. It seems she had lived in Italy for about 4 years before travelling first to France and then, some weeks later, from France to the UK.
5. The Claimant's application for temporary admission to the UK was refused. The Defendant made a formal request to Italy, pursuant to the Dublin III Regulation, for the Italian authorities to accept responsibility for examining the Claimant's asylum claim. That request was refused on the ground that the Claimant had already been granted international protection in Italy, with a residence permit, until July 2019. Arrangements were therefore put in hand for the Claimant to be transferred to Italy.
6. The Claimant's case is that she has been a victim of torture and serious sexual abuse, and that in consequence she suffers from post-traumatic stress disorder and depression. She has reported that as a 9-year old she saw her father killed, and her mother raped, by members of the Ethiopian police force; that her older brother disappeared in Ethiopia; that she and her sister left that country with their mother, but their mother was subsequently abducted and has not been seen again; that her sister was drowned as they travelled by sea from Libya to Italy; and that during her time in Italy she suffered homelessness, poverty and racial abuse, and was subjected to rape and sexual assaults about which the Italian police failed to take any action.
7. No medical assessment was made of the Claimant at the IRC to which she was initially taken. She was seen by a nurse on the day she arrived at Yarlswood, but that assessment is said to have been unsatisfactory because it was conducted in the English language, which the Claimant does not understand.
8. The record of initial interview shows that the Claimant did not at that stage report that she was a victim of torture. No Rule 35 medical report was prepared. The Claimant's case is that on 3^rd July 2015 she passed to someone in the medical centre at Yarlswood a handwritten note (in English) saying -

"I need a Rule 35 report assessment with a doctor urgently, with an Oromo interpreter. I was tortured in Ethiopia and abused in Italy."

The Defendant however denies ever having received such a note.

9. In a letter before action of 23^rd July 2015, the Claimant's solicitors asserted that the detention of the Claimant was unlawful because the Defendant had not complied with her policy which was designed to safeguard against detention of victims of torture, and requested a Rule 35 assessment. That was done the following day, by Dr R Ward. She made her report on a standard form. In section 3, headed "Nature of report" he ticked a box against the entry "(3) I have concerns that this detainee may have been the victim of torture". In Section 5, which asks her to set out "the clinical reasons leading to your conclusion at … (3) above" she made a lengthy note of the account given to her by the Claimant of her experiences and suffering in the past, of her present complaints of nightmares and flashbacks, and of her assertion that she would "rather die" than go back to Ethiopia. The doctor did not express any opinion or comment about that account. On the body map section of the form she noted that on the Claimant's left hand there was a "scar from blunt trauma".
10. The Defendant considered that report and wrote to the Claimant on 28^th July 2015 saying –

"As your claim of being a victim of torture cannot be substantiated conclusively and in light of the lack of doctor's comments in your case, it has been decided that your release from detention is not appropriate …"

11. In subsequent correspondence, the Claimant's solicitors criticised that approach and challenged the conclusion. They obtained and submitted a further medical report from a Dr Arnold. This too reported the Claimant's account. It noted a total of 7 scars. Dr Arnold expressed the opinion that 4 of these scars were "consistent with" the Claimant's account of being beaten on her hand and leg with a stick. He expressed the further opinion that scars on her feet, together with her complaints of persisting pain and limitation of walking distance, were "typical of" injury caused by falaka (beating on the soles of the feet) of a kind to which the Claimant said she had been subjected as a child. Dr Arnold went on to diagnose PTSD and depression, and concluded –

"It would be unusual for a woman to show the extent and types of pathology seen in this case if she had not survived abuse and torture. The medical evidence makes it more likely than not that she has indeed been harmed in the ways she described and has physical and severe psychological damage as a result."

12. The Claimant's solicitors also obtained and submitted a psychological report from a Dr Walsh, who similarly diagnosed PTSD and depression, and went on to express the opinion that a return to Italy would be likely to lead to an exacerbation of the symptoms of those conditions.
13. On 13^th August 2015 the Claimant made a successful application for bail to an Immigration Judge of the First Tier Tribunal. The Defendant had however set removal directions, and the amended provisions of paragraph 22 of Schedule 2 to the Immigration Act 1971 therefore had the effect that the Claimant could not be released without the consent of the Defendant. That consent was not given.
14. The Claimant's solicitors then sent a letter before action on 13^th August 2015. Amongst the points made, it was contended –

"There is a real risk of a breach of Article 3 ECHR if Ms Suleyman is returned to Italy due to the risk of self-harm and suicide, homelessness and other conditions. The appeal of MS and others [2015] EWHC 1095 (Admin) is ongoing and raises similar issues regarding vulnerability and the position of those with subsidiary protection in Italy."

15. In her decision letter of 19^th August 2015, the Defendant considered in detail the claims which had been made under Articles 3 and 5. She reviewed the medical evidence. She referred to domestic and European case law, including Elayathamby v SSHD [2011] EWHC 2182, EM (Eritrea) and others v SSHD [2014] UKSC 12 and Tabrizagh and others v SSHD [2014] EWHC 1914 (Admin). She concluded that the Claimant had not shown that she faced any real risk of breach of Article 3 on return to Italy, "either deriving from systemic deficiencies in that state, or by way of any other route, including individual risk factors". She denied that there had been any breach of the Claimant's Article 5 rights. She certified the Claimant's human rights claim as clearly unfounded.
16. On 21^st August 2015 this claim for judicial review was issued. Removal directions were subsequently cancelled, and the Claimant was released on bail from her detention on 7^th September 2015.
17. Judicial review is claimed on eight grounds.
18. Ground 1 contends that in breach of Article 27 of the Dublin III Regulation, the Claimant has been denied a right to an effective remedy.
19. Article 27 provides that an applicant for international protection -

"… shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal."

20. Mr Bandegani also relies on recital 19 of the Regulation, which states that in relation to decisions as to transfer to a responsible member state –

" … an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred."

21. It has been held that the predecessor regulation, Dublin II, did not entitle an asylum seeker to challenge a decision as to which member state should be responsible for determining the claim: see Habte v SSHD [2013] EWHC 3295 (Admin). Mr Bandegani counters that obstacle by seeking to distinguish Habte on the basis that Dublin III has made significant changes to its predecessor. He has not however been able to persuade me that there has been a fundamental change in this specific respect. Indeed it seemed to me that the submissions involved the proposition that in every case of a transfer decision the claimant would have a right to a complete rehearing before a court or tribunal of all the matters of fact and law which had been considered by the Secretary of State. I am unable to accept that proposition. This Ground accordingly fails.
22. I would add, although it is not essential to my decision, that I see considerable force in Mr Kohli's submission (for which he was able to claim support from a decision of the Outer House of the Court of Session in Scotland: Al and Vo v Advocate General [2015] CSOH 95) that in any event, the Article 27 requirement of an effective remedy is met by the availability of judicial review. It is not however necessary for me to reach a final decision on that point.
23. Ground 2 contends that the Defendant was wrong to certify the claim as clearly unfounded. Mr Bandegani points out, correctly, that for this purpose the facts asserted by the Claimant must be assumed to be true, and that there can only be such certification if a human rights claim cannot on any legitimate view succeed. He acknowledges that in MS and others v SSHD [2015] EWHC 1095 (Admin) Lewis J held that

"The presumption that Italy will comply with its obligations under EU and international law is a significant evidential presumption. It is the backcloth against, or context in, which the question of a real risk of a breach of Article 3 ECHR falls to be addressed. In my judgment, on the material produced, there is no legitimate basis upon which a tribunal, properly directing itself, could reasonably conclude that that presumption was rebutted in relation either to asylum seekers or … vulnerable asylum seekers."

Mr Bandegani accepts that if that decision is applied to the facts of this case, this second ground cannot succeed. He relies however on the fact that the Court of Appeal has very recently granted permission to appeal to the claimants in that case. Although the judgment of the court granting permission is not yet available, he has very helpfully provided me with a copy of the grounds of appeal and a note from junior counsel in that case confirming that permission was granted on all grounds.

24. I have considered carefully whether the grant of permission to appeal in MS and others should in itself lead me to conclude, as Mr Bandegani submits, that the second ground of appeal is arguable in this case. I conclude that it does not, for two reasons.
25. First, the decision of Lewis J in MS and others remains good law unless and until it is overturned. It has been followed in other cases. There is, at present, no indication of when the appeal may be heard.
26. Secondly, it is in my view important that the decision of the Defendant in the present case expressly took into account, when determining whether there was a real risk of a violation of the Claimant's Article 3 rights in Italy, all the matters raised on her behalf. An aspect of the decision in MS and others which is now under appeal is the ruling as to what may be called the systemic failings which are said to expose those returned to Italy to a risk of violation of their Article 3 rights. Part of the argument in that appeal is that the learned judge had misunderstood the decision of the ECHR in Tarakhel v Switzerland (29217/12). It is submitted in the present case that there was a similar misunderstanding of Tarakhel on the part of the Defendant. The decision letter makes it clear, however, that the Defendant had regard not only to systemic issues but also to the factors relevant to the Claimant as an individual: thus even if Tarakhel has been misunderstood, any such misunderstanding has not been the sole basis of the decision. I agree with Mr Kohli's submission that the real issue is whether it is arguable that the Claimant can show that in all the circumstances of her case there is a real risk of violation of her Convention rights. Given that she has already been granted humanitarian protection in Italy, and is entitled to access services there, I am not persuaded that there is arguably such a risk. It does not seem to me that the outcome of the appeal in MS and others would be of central importance to the decision in this case.
27. The third ground is that the decision to detain the Claimant breached EU law because she did not pose a significant risk of absconding. In this regard Mr Bandegani relies on Article 28 of the Dublin III Regulation, which so far as material provides –

"2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this regulation, on the basis of an individual assessment and only insofar as detention is proportional and other less coercive measures cannot be applied effectively.

3. Detention shall be for as short a period as possible and shall be for no longer that the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out."

28. Permission was refused on this ground by Sir Stephen Silber on the basis that the Claimant cannot rely on individual rights under Dublin III to challenge her detention. I respectfully agree. I would add in any event that I am unable to accept the foundation of the argument, which is that there was here no objective evidence showing a significant risk of absconding. The evidence shows that the Claimant had given different details of her name and date of birth to the Italian authorities, had no connection with this country other than her illegal entry and her wish to remain here if she could, and did not wish to be returned to Italy. In my view those features of her case unarguably provided a sufficient basis for the Defendant to regard her as posing a significant risk of absconding.
29. The fourth ground is that there was an unreasonable delay in implementing the Rule 35 procedure. It is submitted that the delay rendered that procedure ineffective to protect the Claimant, and so rendered her detention unlawful.
30. I accept Mr Bandegani's submission that the procedure established by Rules 33-35 of the Detention Centre Rules 2001 is intended to ensure that those who have been the victims of torture, and others whose physical or mental health is likely to be injured by detention, are quickly identified upon admission to an IRC. The aim, plainly, is to ensure that such persons do not suffer as a result of their detention in a way in which other detainees would not. Rule 55 of the Enforcement Instructions and Guidance then provides that the detention must be reviewed in the light of the Rule 35 report, and stipulates that detention is only suitable in very exceptional circumstances in cases in which there is independent evidence that the detainee has been tortured.
31. There is no specific time limit set down in the Rules, but I accept the submission that an allegation of torture must result in the necessary steps being taken within a reasonable time.
32. The foundation of the Claimant's argument is that she reported on 3^rd July 2015, by the note which I have quoted, that she had been a victim of torture. There is however no evidence that the note was ever delivered to any person at the Yarlswood IRC. I was told that the note was written by the Claimant's solicitor but given by her to the Claimant for personal delivery to the health centre at Yarlswood, and I was told that that course was taken because the Claimant had been told it was necessary for her personally to make the report of torture. I am bound to say that I found that a curious proposition, but I do not doubt that the solicitor wrote the note and gave it to the Claimant. There is however no evidence or information as to what happened to it then. It was not referred to in correspondence until a letter of 16^th July, which asserted that "our client handed a note to you on 3 July 2015 informing you that she was a victim of torture and sexual abuse …"; but nothing was said in that letter about the circumstances in which the note had been written, and there does not appear subsequently to have been either a reply or any further mention of the note.
33. In those circumstances I do not regard the Claimant as having any real prospect of establishing that a report of torture was made any earlier than the 23^rd July 2015 which resulted in a medical assessment the following day. Accordingly it is not arguable that there was unreasonable delay on the part of the Defendant in operating the appropriate procedure.
34. Ground 5 alleges that the Defendant applied the wrong test when considering the Rule 35 report. It is submitted that she looked for conclusive substantiation of the allegation of torture when her Enforcement Instructions and Guidance indicate that it is only in very exceptional circumstances that there should be detention of a person in respect of whom there is "independent evidence that they have been tortured". Mr Bandegani argues that the medical evidence provided by the Claimant's solicitors plainly did constitute independent evidence that she had been a victim of torture. He also challenges the reliance placed by the Defendant on the absence from Dr Ward's report of any opinion or comment.
35. The Claimant is in my view entitled to be critical of the Defendant's decision-making process in one respect. To a substantial extent, the medical evidence comprised of reporting of the Claimant's account; and the finding of scars which were consistent with her account of having been beaten by Ethiopian police, but could have many other possible explanations, could fairly be said to fall short of providing any independent support for that account. It is however important in my view to note that Dr Arnold found scarring and continuing complaints which he regarded as typical of injury caused by falaka. In the absence of any other suggested explanation for such injury, it seems to me that more weight should have been given to this evidence, which arguably should have been treated as independent support for at least one part of the Claimant's account.
36. I am not however persuaded that this point alone is sufficient to give rise to an arguable challenge to the lawfulness of the detention. Nor do I accept the criticisms which are made of the contents of Dr Ward's report or of the approach taken by the Defendant to that report. The flaw in the submissions, as it seems to me, is that they presuppose that Dr Ward had more to say about the Claimant's injuries than she chose to put in her report; but there is no basis for suggesting that she had anything further to offer which could have assisted the Claimant. In those circumstances, Rules 33-35 did not in my view require her to do more than she did. I see no basis on which it could be argued that the Defendant was not entitled to conclude that the Claimant fell outside the category of those for whom detention is only appropriate in very exceptional circumstances.
37. Grounds 6, 7 and 8 all relate to challenges to the Defendant's refusal to consent to the Claimant's release from custody following the decision of the bail judge on 13^th August 2015. I can take all three grounds together. It is conceded by Mr Bandegani that normally challenges of this nature would fall away when a detainee was released, as this Claimant has been; but he argues that there are here important points of principle which should be considered by the court.
38. Paragraph 22 of Schedule 2 to the 1971 Act relates to decisions about release on bail. I agree with Mr Bandegani that the issue of the Defendant's consent only arises under paragraph 22(4), as amended, when a decision has been made to release on bail a person in respect of whom directions are in force for removal within 14 days. It follows that the statutory granting to the Defendant of a power to withhold her consent contemplates that she will decline to give consent even though a Tribunal Judge has granted bail. Provided directions are in force for removal within 14 days, the amended provisions do not put any constraint upon her entitlement to withhold consent.
39. Mr Bandegani invited my attention to a government Statement of Intent when the statutory amendments appeared in the Immigration Bill. That Statement made clear that when an immigration judge has decided that there are exceptional circumstances making it appropriate to grant bail, despite removal being imminent, "the Secretary of State will give serious consideration to release". It goes on to say –

"Whilst it is not possible to anticipate every exceptional circumstance where the Secretary of State may consent to release as the decision will be taken on a case by case basis, possible examples may include persons who are recently bereaved, or have complex medical requirements."

40. Submissions were made to the effect that there was in this case no good reason to withhold consent, and that the Defendant must therefore have failed to make any proper or reasoned decision. In two letters, dated 27^th August and 7^th September 2015, the Defendant gave her reasons for refusing to consent to release even though the Immigration Judge had granted bail. It should be noted that one of her reasons was that the Immigration Judge may not have had a full understanding of the medical care which would be available to the Claimant whilst she was detained at the IRC. Another reason was that the Defendant was not persuaded, as the Immigration Judge had been, that release to a specified address, with a reporting condition, would sufficiently reduce the risk of absconding. For the reasons which I have summarised in paragraph 28 above, that was a view which the Defendant was entitled to take. In the light of those reasoned letters, it is in my view impossible to argue that the Defendant was not entitled to withhold her consent to the release of the Claimant whilst directions were in force for her imminent removal.
41. I should add that Mr Bandegani relied on R (on the application of Evans) v Attorney General [2015] UKSC 21 to argue that the statutory provisions should be interpreted as meaning that the Defendant could only withhold her consent to release where either there had been a material change of circumstances since the judicial decision to release on bail had been made, or the judicial decision was itself vitiated by some error of fact or law. I do not agree. It does not seem to me to be possible to read into the provisions a requirement of a change of circumstances, given that the context is that of a person in detention who is to be removed from the country in less than 14 days. The interpretation for which Mr Bandegani argued would in my view deprive the amended provisions of much of their effect, and I was not persuaded that there was any basis on which to do so.
42. For those reasons I regard each of the grounds as unarguable. It follows that this renewed application for permission fails, and is dismissed.