Hatega, R (on the application of) v Secretary of State for the Home Department

A fresh claim must be considered by reference to the material actually advanced. A refusal which responds to a different claim and ignores material evidence is unlawful.

Where further submissions have not been properly considered under paragraph 353A of the Immigration Rules, removal cannot properly be regarded as imminent. In the rare case of an obviously defective refusal, the Secretary of State cannot avoid responsibility for consequential detention by relying on a division of functions within the department.

The exceptional same-day removal procedure may lawfully be used where medical evidence establishes a risk of suicide or self-harm, provided the decision is rational and the person retains an effective opportunity to contact legal representatives.

The claimant, a Rwandan national seeking asylum, challenged decisions concerning a fresh claim, his detention pending removal, and an attempted same-day removal. His fresh submissions relied principally on a later medical report which said that his physical injuries and psychological condition were consistent with torture.

The Secretary of State initially refused to treat the submissions as a fresh claim by addressing the claimant’s present medical condition rather than the evidential challenge to the earlier credibility findings. That decision was withdrawn and replaced during the proceedings. The claimant also challenged the replacement decision, his detention, and the use of the exceptional removal procedure without 72 hours’ notice.

1. First refusal decision. The initial refusal was indefensible. It treated the submissions as an unmade claim under Articles 3 and 8 of the European Convention on Human Rights, while failing to address the material contention that the later medical report undermined the earlier rejection of the claimant’s credibility. It therefore took immaterial matters into account and failed to take material matters into account. Ground 2 succeeded.

2. Detention. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 provides the statutory power to detain pending removal, but the Secretary of State’s published policies substantially confine its exercise. Detention based on imminent removal requires removal to be genuinely imminent within the meaning of paragraph 353A of the Immigration Rules. No reasonable Secretary of State could regard the submissions as having been considered where the refusal letter plainly addressed a different claim and ignored the central medical evidence. Consequently, removal was not imminent and the detention, lasting for just under six and a half hours, was unlawful. The Secretary of State could not rely on the fact that different officials dealt with the refusal and detention.

3. Same-day removal. Permission to challenge the exceptional procedure was refused. The medical material and the claimant’s interview provided a rational basis for treating him as presenting medical needs and a risk of self-harm. The claimant had access to a telephone, contacted his solicitors, and they were able to challenge the proposed removal. The authorities relied on by the claimant did not establish any entitlement to earlier service in these circumstances. The issue was fact-sensitive, and no useful purpose would have been served by further determination because removal did not occur and the relevant decisions became ineffective during the day.

4. Replacement fresh-claim decision. The second refusal was lawful. The Secretary of State was entitled to compare the later report with the earlier medical report and the claimant’s previous accounts. The substantial differences in the recorded lesions and the new allegations of repeated stabbing and falaka meant that the later medical opinions did not provide a reliable basis for revisiting the earlier credibility findings. The Secretary of State was also entitled to accept the claimant’s present psychological condition while rejecting his account of its cause. The challenge to the second decision failed.

The claim succeeded on the detention ground and on the original challenge to the first refusal decision. The challenge to the second refusal decision failed.

First instance judicial review. The judgment states that an earlier application for statutory review had been refused in November 2004, but no citation is given.