United Kingdom - R (on the application of LMC) v Secretary of State for the Home Department, 17 June 2016

Facts:

The applicant came to the UK from Gambia in 2007 on a visitor’s permit and overstayed his limited leave. He then married a Polish woman and applied for a residence permit on the basis of marriage to an EEA national. This was unsuccessful and he separated from his wife. He then applied for asylum. In a screening interview on 25 June 2014, he claimed that he had come to the UK because of his sexuality, that he was bi-sexual and that he had been tortured in Gambia by people who knew about his sexuality. He gave, as an example of torture, an assault on him by fellow villagers in 2007. The Home Office detained him under the Detained Fast Track (DFT) process for determining asylum claims. On 2 July 2014, he had his full asylum interview. His solicitors did not attend but it was recorded that he was happy to proceed without them. On 8 July 2014, the Home Office refused his asylum claim on credibility grounds. The applicant instructed two further firms of solicitors but his appeals were dismissed and removal directions were issued on 27 August 2014. He instructed a fourth firm of solicitors and informed them that he had been subjected to torture in 2006. These solicitors obtained a report from a GP who expressed concern that the applicant may indeed have been the victim of torture. The Home Office kept the applicant in detention and issued fresh removal directions. On 5 November 2014, the applicant’s solicitors secured a report from Dr Cohen, the senior physician of the Medico-Legal Report Service of the organisation Freedom from Torture (formerly the Medical Foundation). Dr Cohen reported that the applicant had a number of physical injuries that were likely to have been inflicted, and that he had psychological symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder (PTSD). The Home Office rejected this evidence on 11 November 2014. The applicant’s solicitors lodged a claim for judicial review and the applicant was released on bail on 18 December 2014. In July 2015, a consultant clinical psychologist, Ms Robertson, provided a report, making a firm diagnosis of PTSD. On 30 September 2015, the Home Office maintained the refusal of asylum.

Decision & reasoning:

1. It was lawful to place the applicant in the Detention Fast Track (DFT) on 25 June 2014. Judges were familiar with opportunistic sexual orientation claims. R (B) v SSHD [2013] EWCA Civ 666 was not authority for the proposition that any sexual orientation asylum claim was unsuitable for the DFT. The conclusion in R (B) v SSHD was based on a combination of factors in that particular claim. In this case, the applicant had been in the UK for 7 years, had been in contact with solicitors for 2 years before he made his asylum claim, had overstayed and had made a previous dubious EEA marriage claim. The applicant’s description of an assault on him in 2007 did not meet the definition of torture. Although it had subsequently emerged that his first solicitors may not have been adequate, the Home Office could not have been expected to know this at that time.

2. The decision of 8 July 2014 to refuse the applicant’s asylum claim must be set aside. This was in light of the independent medical evidence of torture (Dr Cohen’s report in November 2014 and Ms Robertson’s in September 2015). The Home Office’s response to Dr Cohen’s report suggested a disregard of the potential contribution of competent medical reports generally and the expertise of Freedom from Torture and the Helen Bamber Foundation in particular. The medical reports provided evidence of severe ill-treatment based on sexual orientation, an adverse reaction to detention and a recognised mental health condition. Law and medicine suggest that people with these conditions or experiences fail to disclose the details of their previous treatment. To do so requires a sound relationship with competent legal representatives. By September 2015, it was more apparent that the applicant’s first solicitors had been inadequate. By November 2014 and September 2015, it should have been clear that the applicant was unsuitable for the DFT and that disadvantage had been caused to him and the assessment of his credibility by being processed in it. In light of the evidence of his potential vulnerability and unsuitability for DFT processing, there was individualised evidence of unfairness that required the setting aside of the original decision. An appeal would be insufficient as the judge would be concerned with agreeing or disagreeing with that decision. A fresh, untainted decision needed to be made, giving appropriate weight to the medical evidence.

3. The applicant’s detention was lawful from 25 June to 8 July 2014 when the Home Office was entitled to conclude that the applicant met the DFT criteria. However, it was unlawful from 9 July to 27 August 2014. The DFT criteria only applied up to the initial decision and, after that, the criteria in Chapter 55 of the Enforcement and Instructions Criteria applied. The judge was not satisfied that the applicant would have been detained under those criteria. The applicant was, however, lawfully detained from 28 August to 10 November 2014 in order to effect removal. From 11 November, when Dr Cohen’s report was available, to his release on 18 December 2014, detention was unlawful.

Outcome:

Home Office to make a fresh assessment of credibility, setting aside the refusal of the asylum claim. The fresh decision could have regard to the screening and asylum interviews.

Compensatory damages for each period of unlawful detention, to be referred to the county court for assessment if not agreed.

Observations/comments:

This judgment is one of a number that have followed the significant legal challenges to the Detained Fast Track by Detention Action and the UK Government’s suspension of the DFT.

In R (on the application of Z) v Secretary of State for the Home Department [2016] EWHC 1217 (Admin), as in this case, the applicant claimed to have been seriously physically ill-treated and it appeared that his initial legal representation was inadequate. Unlike this case, however, it was decided, on the facts, that the applicant was obviously unsuitable at his screening interview for the DFT, that the whole period of his detention was unlawful, and that his asylum interview should be disregarded when determining his fresh claim.

In H v Secretary of State for the Home Department  [2016] EWHC 1579, the judge interpreted the Detention Action cases as establishing that the DFT was systematically unfair and unlawful as well as preventing the applicants, in particular, from having a fair hearing. The entire period of their detention was unlawful. 

This case summary was written by Alice Winstanley, LLM student in Immigration Law at Queen Mary's University.

Other sources:

Home Office, ‘Asylum Policy Instruction: Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service’ (Version 3.0, 17 January 2014)

Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment