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

For a fresh asylum claim under paragraph 353 of the Immigration Rules, the question is whether there is a real, rather than fanciful, prospect that a fresh tribunal, considering the old and new evidence holistically, would find a real risk of persecution or ill-treatment.

Independent medical evidence may corroborate the occurrence and nature of injuries, but it may not materially improve credibility on issues to which it has no bearing, such as identity, age, sexual orientation, or the reasons for the injuries. A decision-maker must apply anxious scrutiny, but may rely on serious, unconnected adverse credibility findings.

Where detention policy is engaged by independent evidence of torture, detention remains lawful only in very exceptional circumstances. A reasonable period is allowed to assess the evidence and the policy.

The claimant, a Gambian national and foreign criminal liable to deportation, challenged the Secretary of State’s refusal to treat his representations as a fresh asylum and human rights claim. He relied principally on medical evidence of scarring and post-traumatic stress disorder, and supporting hearsay evidence concerning alleged family violence arising from his claimed sexual orientation.

He also challenged his immigration detention from 21 November 2014 to 17 April 2015. The issues were whether the fresh claim decision was legally flawed or irrational, and whether the Secretary of State had complied with her detention policy concerning serious mental illness, independent evidence of torture, reasonable inquiries, and very exceptional circumstances.

1. Fresh claim. The claim for judicial review of the refusal dated 6 February 2015 failed. Under paragraph 353 of the Immigration Rules, the decision-maker had to ask whether there was a real prospect that a fresh tribunal, equipped with the earlier and new evidence viewed holistically, would conclude that the claimant faced a real risk on return. That assessment required anxious scrutiny.
2. The approach in R (Mibanga) v Secretary of State for the Home Department [2005] EWCA Civ 367 did not require the new medical evidence to be treated as capable of overcoming every adverse credibility finding. This was a fresh-claim assessment, not an original fact-finding exercise. The medical evidence could corroborate that beatings had occurred, but could not independently establish who inflicted them, when they occurred, or why. It did not address the serious credibility findings concerning age, identity, delay in claiming asylum, and the claimed sexual orientation.
3. The Secretary of State was entitled to consider the earlier tribunal’s findings as the starting point under the Devaseelan guidelines. It was rational to conclude that the medical and hearsay evidence, taken with the earlier evidence, gave no realistic prospect of a different assessment of the central claim. Any arguable mischaracterisation of some scarring evidence was immaterial.
4. Detention. The Secretary of State bore the burden of proving the legality of detention. Detention was justified by the high risks of absconding, reoffending and harm to the public, and the Hardial Singh principles were not infringed. The claimant’s mental illness was capable of satisfactory management in detention.
5. The medical evidence of scarring constituted independent evidence of torture for the purposes of Chapter 55.10 of the Enforcement Instructions and Guidance. The Secretary of State had taken reasonable steps before and at the inception of detention to investigate whether the policy applied. However, after the claimant’s solicitors expressly drew the evidence to her attention on 3 December 2014, the Secretary of State had no legitimate excuse for failing to address it within a reasonable time. The detention from 19 December 2014 to 12 February 2015 was therefore unlawful.
6. By the February review, the Secretary of State had concluded that very exceptional circumstances justified continued detention. The exceptionally high risks of absconding, further criminality and harm to the public outweighed the claimant’s vulnerability. Detention from 13 February until release was lawful. The earlier breach was technical and caused no entitlement to compensatory damages.

This was a first-instance judicial review. The judgment referred to an earlier decision concerning the claimant’s first period of detention: Drammeh [2015] EWHC 2754 (Admin).