Agyeikum, R (on the application of) v SSHD

A decision-maker considering further submissions under Immigration Rules 353 and 353B must assess the merits impartially and apply the correct realistic-prospect test. Spent convictions and cautions must not be taken into account under rule 353B. Expert evidence may constitute independent evidence of torture even where the expert has considered the claimant’s account. Where such evidence is received, the Secretary of State must consider the detention policy concerning persons who have been tortured and keep detention under review. Failure to do so may make subsequent detention false imprisonment. Detention remains lawful where removal is realistically imminent and detention is rationally maintainable under the applicable policy and the Hardial Singh principles.

The claimant, a failed asylum seeker from Ghana, sought judicial review of decisions under Immigration Rules 353 and 353B and challenged his detention from 26 June 2012 until his release on 4 February 2013. He relied on medical evidence of post-traumatic stress disorder, depression, suicidal risk and torture. The Secretary of State rejected his further submissions, maintained removal directions and continued detention.

The issues were whether the Secretary of State had lawfully considered the claimant’s further submissions and exceptional circumstances, and whether his detention was unlawful from the outset or became unlawful as his medical and evidential position developed.

1. Rules 353 and 353B. The decision-maker’s March 2012 consideration was unlawful because it took into account the claimant’s spent convictions and caution. The Rehabilitation of Offenders Act 1974 contained no exclusion of immigration decision-making from its effect. The July 2012 consideration remained defective and did not cure the earlier error.
2. The 5 July representations were further submissions for the purposes of rule 353. The decision-maker had to decide whether they created a realistic prospect of success. References to the absence of “conclusive evidence” and to the evidence being “not exceptional” cast doubt on application of the correct test in WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495. The decision also unlawfully took account of immigration rules which were not yet applicable.
3. The claimant was entitled to a fresh consideration under rules 353 and 353B, including the later reports of Dr Basu and Professor Katona. The court did not require reconsideration under rule 395C because that rule had been revoked before the challenged decisions.
4. Detention. The initial detention was lawful. The emergency travel document and imminent removal materially changed the position. The Secretary of State could rationally regard the claimant’s mental condition as manageable in detention, and the earlier medical reports did not amount to independent evidence of torture.
5. Following R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597, the question was whether detention was reasonably open to the Secretary of State, properly directing herself under the policy. The rule 35 report and subsequent incidents did not themselves make detention unlawful.
6. Applying the Hardial Singh principles, continued detention remained lawful on 1 November 2012. The risk of absconding, the claimant’s determination to avoid removal, the expedited judicial review and the refusal of bail outweighed the period of detention and the claimant’s mental condition.
7. Professor Katona’s second report amounted to independent evidence of torture. Applying R (AM (Angola)) v Secretary of State for the Home Department [2012] EWCA Civ 521, an expert’s independent clinical assessment may constitute independent evidence even though it is partly based on the claimant’s account. The Secretary of State therefore had to consider paragraph 55.10 of the Enforcement Instructions and Guidance. Her failure to do so within a reasonable time was a public law error causing false imprisonment.
8. The claimant was entitled to damages for false imprisonment from 28 November 2012, when release should reasonably have occurred, until 4 February 2013. Damages were to be assessed by a Master of the Queen’s Bench Division, subject to representations.