News & Views Monday18th January to Sunday 24th January 2016
Home Office Refuses to Publish Inquiry Into Death Of Detainee Shackled For Heart Op

The Home Office is refusing to release the findings of an investigation into the death of a man who was handcuffed throughout a heart operation following a s tint in a detention centre near Heathrow airport. The case echoes the controversial death of Alois Dvorzac, an 84-year-old Canadian Alzheimer’s sufferer, who died in shackles while detained in Gatwick airport en route to be reunited with his daughter in Slovenia.
Mohammed Jakaria Chowdhury died of heart failure in November 2012 at Harefield hospital in north-west London and was handcuffed for almost the entirety of his week-long stay before his death. A freedom of information application for details of his death by the charity Medical Justice was rejected by the Home Office’s immigration enforcement department on the grounds that the details would be too distressing for his family. The charity is now applying to a first-tier tribunal in a bid to force the investigation into the public domain.  “The real concern is that the Home Office are not being transparent and it is in the public interest that it is. If there is evidence he was treated in a manner so distressing it couldn’t be released to the family, then it is even more important that people know about it,” said Martha Spurrier, the barrister for the charity. She added that “a perverse consequence” of the Home Office logic was “the worse someone was treated the more unlikely we were to hear about it”.
Read more: Lisa O’Carroll, Guardian, 20/01/2016

M.D. and M.A. v Belgium – If Expelled to Russia Violation of Article 3

The applicants, M.D. and M.A., are two Russian nationals who were born in 1974 and 1976 respectively and live in Belgium.

The case concerned proceedings for the removal of a Russian couple of Chechen origin to the Russian Federation.

According to M.D., his father was murdered by supporters of a Chechen leader. In order to avenge the murder M.D.’s elder brother killed a member of that leader’s family. Two months later M.D. and his wife M.A. were attacked during a birthday party, whereupon they fled to Ingushetia. They were informed by M.D.’s mother and sister that some men were looking for him, and the couple therefore left Russia. Their brother-in-law, who had remained in Chechnya, was murdered after their departure.

On their arrival in Belgium M.D. and M.A. lodged their first asylum application. The Aliens Department declared the application inadmissible on the ground, among other things, that a personal vendetta did not constitute a reason for granting asylum. The Commissioner General for Refugees and Stateless Persons upheld the refusal, finding that M.D.’s and M.A.’s account of events lacked credibility. The Conseil d’État dismissed their application for judicial review as both M.D. and M.A. had failed to attend a hearing. They were served with an order to leave the country.

Subsequently, M.D. and M.A. submitted three further applications, in support of which they produced various notices published in the local press in which a reward for information on the whereabouts of M.D. had been offered, and also produced the brother-in-law’s death certificate and a summons from the Grozny police department for M.D. to appear on suspicion of bearing illegal arms and belonging to an unlawful armed organisation. Those applications were likewise dismissed. They were served with an order to leave the country, together with an order for their detention at a designated place pending their removal; their subsequent request for a stay of execution under the extremely urgent procedure was dismissed. On 11 September 2012 the Court, having received a request for an interim measure, decided to indicate to the Belgian Government that M.D. and M.A. should not be expelled to the Russian Federation for the duration of the proceedings before the Court. Following that measure, the Ghent Court of Appeal ordered their release.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, M.D. and M.A. complained that their removal to Russia would expose them to the risk of ill-treatment.

Violation of Article 3 – were M.D. and M.A. to be returned to Russia without the Belgian authorities having first re-examined the risk they face in the light of the documents submitted in support of their fourth asylum request.

Interim measure (Rule 39 of the Rules of Court) – not to expel M.D. and M.A. to Russia – still in force until judgment becomes final or until further order.

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.

Source ECtHR, 19/01/2016

"Shifting Sands" of the Country Guidance in Respect of Ahmadis in Pakistan

R (on the application of NJ and YJ) v SSHD Department IJR [2016] UKUT 32 (IAC)

2. The applicants are sister and brother who were born respectively on 6 January 1987 and 24 February 1985. They are both citizens of Pakistan. They arrived in the United Kingdom on 22 April 2008 with their mother and younger sister with leave as visitors. On 23 April 2008, they all claimed asylum. On 27 October 2009 the first applicant's claim was refused. Her appeal was dismissed by the Asylum and Immigration Tribunal on 9 December 2009 and, following the grant of a statutory review, the Upper Tribunal dismissed her appeal on 9 November 2010. She subsequently unsuccessfully applied for permission to appeal to the Court of Appeal and she became appeal rights exhausted on 28 June 2011.
3.              The second applicant's claim for asylum was refused by the Secretary of State on 7 October 2009. His subsequent appeal to the AIT was dismissed on 5 November 2009. Following the grant of a statutory review, the Upper Tribunal dismissed his appeal on 17 January 2011. Subsequent applications to appeal to the Court of Appeal were unsuccessful and he became appeal rights exhausted on 28 June 2011.
4.              Although the applications of the applicants' mother and younger sister were initially refused and their appeals dismissed, it appears that they were subsequently granted discretionary leave.
5.              The applicants made further submissions to the Secretary of State on 14 September 2011 and 4 April 2012. Those further submissions were rejected on 30 January 2011 and 17 April 2012 respectively and considered not to amount to fresh claims.
6.              On 30 January 2013 and 28 March 2013, the applicants made further submissions. The Secretary of State rejected those submissions on 26 November 2013 and again considered that they did not amount to a fresh claim. Following a pre-action protocol letter sent to the Secretary of State on 13 January 2014, the Secretary of State issued a supplementary refusal letter on 22 January 2014 affirming her earlier decisions.
7.              Judicial review proceedings were issued on 31 January 2014 challenging the Secretary of State's decisions but those proceedings were withdrawn, as I understand it, on the basis that the Secretary of State would reconsider the applicants' further submissions.
8.              Those submissions were reconsidered and again rejected in individual decision letters in respect of the first and second applicants on 1 October 2014. It is those decisions which are challenged in this claim.
9.              Following a pre-action protocol letter, on 14 November 2014 the Secretary of State responded maintaining her decisions.
10.          Judicial review claims were issued on 31 December 2014 challenging the respondent's decision letters of 1 October 2014. On 23 June 2015, HHJ Bidder QC granted both applicants permission to bring judicial review proceedings and directed that their claims be listed and heard together.

48. There is no doubt that since the decisions of the Upper Tribunal dismissing each of the applicants' appeals in November 2010 and January 2011 respectively, the relevant country guidance concerning the risk to Ahmadis on return to Pakistan has significantly changed. No longer does a claimant have to establish that they were an "exceptional" Ahmadi to succeed. The new country guidance in MN and Others establishes that a risk may exist to an Ahmadi who openly (rather than privately) practises their faith.

64. In my judgement, the Secretary of State was not entitled to conclude that, in effect, a judge on appeal could not accept that the evidence of the two applicants' activities in the UK was first, established and, secondly, indicative of how they would carry on their spiritual lives as Ahmadis in Pakistan. A judge on appeal would, no doubt, take into account, as did the Secretary of State, the history of the applicants' claims and the timing of submission of supporting letters from the AMA UK. The judge would also, no doubt, take into account the provenance of the information set out in the letters. Mr Mandalia submitted that it was not sufficient simply to repeat in the letters the information obtained from the president of the Clapham branch. He pointed out that Judge Alis, in respect of the second applicant's appeal, had rejected reliance upon supporting evidence from the AMA UK presented by the second applicant in part because of its provenance. Nothing in AB is inconsistent with the AMA UK's letters in this case being entitled to some weight: they are relatively detailed and the information is sourced. Further, the AMA UK's letters are less likely to be persuasive on past events in Pakistan than they are in relation to matters in the recent past and currently in the UK. In the earlier appeal, Judge Alis was concerned with the credibility of the second applicant's claim in respect of events in Pakistan. Here, the respondent was concerned with the credibility of the applicants' claims for activities in the UK and the implications of that for their behaviour on return to Pakistan.
65.          In my judgement, the Secretary of State has failed to give 'anxious scrutiny' to all the evidence in concluding, in effect, that there was no realistic prospect that a Judge would accept the evidence from the AMA UK about the applicants' activities in the UK and, taking that material into account, would find that there was a real risk that the applicants would openly practise and manifest their faith in Pakistan and as a consequence, following MN and Others, be at real risk of persecution in Pakistan.
66.          Standing back from the detail of the submissions, there is no doubt in my mind that the applicants' claims based upon MN and Others have not been fully and properly considered yet. That has, no doubt, resulted from the "shifting sands" of the country guidance in respect of Ahmadis in Pakistan. Both applicants are entitled to have their claims properly and fully considered.
67.          For these reasons, the claims succeed. The respondent's decisions of 1 October 2014 in respect of both applicants were unlawful. The appropriate remedy is that both decisions are quashed.

Heard at Birmingham Civil Justice Centre On 6 November 2015

Published on Bailii


Effect Upon Third Party's Private Life Rights Can be Factor in Human Rights Appeal

In R (on the application of Sision) v Secretary of State for the Home Department IJR [2016] UKUT 00033 (IAC), the Upper Tribunal has found for the first time that in making an immigration decision, the Secretary of State must take account of whether the decision might be incompatible with the right to respect for the private life of third parties. In this respect, the decision extends the House of Lords' decision in Beoku-Betts v SSHD [2008] UKHL 39 regarding family life rights to cover private life rights as well.

In Sison, the applicant was a Philippine national who worked as a carer. She had arrived in the UK as a work permit holder but had overstayed when her leave expired. Following the expiry of her leave, she obtained employment with a couple, the Josts, who were in their early 90s. Mrs Jost suffered from Alzheimer's disease. After six months in the Josts' employment, Ms Sison applied for leave to remain based on her carer's role. The Home Office refused that application. Ms Sison sought judicial review of that decision in the Upper Tribunal, and was granted permission to do so.
Read more: Gherson, 21/01/2016

Four Syrian Refugees Must be Brought From Calais Camp to UK

British judges have ordered that three Syrian youths and an accompanying adult should immediately be brought to Britain to join their relatives and to escape the “living hell” of a Calais refugee camp. Refugee welfare groups described as groundbreaking the order by two immigration judges that three unaccompanied boys and a dependent adult should, under European rules, be allowed to live with their family in Britain while their asylum claims are studied. The four young men fled Syria last September and arrived at the Calais “Jungle” camp in October. They are said to have been deeply traumatised by their experiences and had applied for the British government to take charge of their asylum claims that would allow them to live in the country.
Read more: Alan Travis, Guardian, 20/01/2016

Asylum Centre Costs More Than World's Most Exclusive Hotels

An accommodation centre for failed asylum seekers is more costing than the world’s most exclusive hotels, taking just 14 families last year at a cost of more than £450,000 each.  Cedars, a secure centre run by the Home Office, was occupied for approximately 40 nights in the first nine months of 2014/15 – but landed the taxpayer with a bill for millions of pounds.  Total running costs for 2014/15 were estimated at £6,398,869 – or more than £457,000 for each family which passed through its doors.  If each family stayed at the centre for the full year, the cost would equate to £1,252 a night, or £38,088 per family per month. However, the true cost is far higher – as much as £152,354 a night - because most families spend only 72 hours at Cedars - the name of which is an acronym for “Compassion, Empathy, Dignity, Approachability, Respect and Support”.
Read more: David Barrett, Telegraph, 18/01/2016

 FK, R (On the Application Of) v SSHD [2016] EWHC 56 (Admin) (18 January 2016)


1.      On 6th December 2013 the defendant refused to recognise the claimant as a victim of trafficking. An earlier decision had been made by the defendant that there were reasonable grounds to believe that the claimant was a victim of trafficking on 15th March 2013. The background to that decision was that the claimant contended she had arrived in the UK in October 2011, and on 11th January 2012 she had been encountered and arrested on suspicion of using a false UK passport to obtain a National Insurance number. She was also suspected at that time of being illegally in the UK. Following this on 3rd February 2012 she claimed asylum. On 12th June 2012 she was convicted of three offences of identity document fraud and sentenced to 15 months imprisonment concurrently. On 14th June 2012 the defendant sent the claimant a notice of liability to deportation, and a deportation order was signed on 16th October 2012. On 26th October 2012 the claimant lodged an appeal against the deportation order. During the course of the appeal proceedings one of the defendant's officers having reviewed her file identified that she should be referred to the National Referral Mechanism as a potential victim of trafficking. Consequent upon this process the reasonable grounds decision referred to above of 15th March 2013 was made.

2.     An initial conclusive grounds decision (subsequent to the reasonable grounds decision), in respect of the trafficking issue was made on 14th May 2013. That decision was reconsidered following receipt of an expert report from Ms Lara Bundock on behalf of the claimant and a further negative conclusive grounds decision was reached on 29th November 2013. In the context of a judicial review of that decision the defendant withdrew her decision, leading to the issuing of the decision of 6th December 2013, which is the subject of these proceedings.


29. Having analysed the decision of 6th December 2013 I have reached the conclusion that it is infected with errors of law and can no longer stand.

30. Firstly, whilst the letter reaches adverse conclusions in relation to credibility, and does so on the basis of inconsistencies in the claimant's account and delays in disclosure of her account of being trafficked, conspicuous by its absence from the decision is any attempt to address the Guidance which I have set out above relating to how those aspects of an assessment of credibility must be considered before reaching an adverse credibility finding. This is an error in two respects. Firstly, there does not appear to have been any application of the Guidance in relation, for instance, to whether or not there are other factors in play which would have led to the inconsistencies or delay in disclosure and explain it without those features being an indicator of the claimant being an unreliable witness. Factors that are identified in the Guidance were clearly evident in the claimant's case. She was a person who had been subject to mental and emotional trauma and who experienced feelings of shame about the circumstances in which she found herself. Most tellingly in my view, it was accepted that she was suffering from post-traumatic stress disorder on the basis of the medical evidence, and yet there is no reflection in the decision letter of the Guidance in respect of the role which that diagnosis can play in cases of this kind in the assessment of credibility. Thus I accept submissions made by Ms Warren that the decision letter discloses a failure to apply the defendant's Guidance when reaching the adverse credibility findings in the case.

31. Secondly, in that the decision letter fails to deal with factors which might mitigate the inconsistencies or delay in disclosure in the claimant's case in accordance with the Guidance, it also fails to provide any reasons to explain why those factors do not supplant the findings as to inconsistency and delay of disclosure on credibility, or the role they played in making the ultimate adverse credibility finding. Thus, in any event, even if (which I do not accept) the defendant applied her Guidance, the decision letter provides no reasoning to explain how the Guidance has been taken into account and applied in the claimant's case. As set out above, the Guidance creates the need for a careful explanation of reasons in cases of this kind if an adverse credibility finding is to be reached when the factors identified by the Guidance as being mitigating circumstances are involved. There is no such reasoning evidenced in the decision letter.

35. In the light of these conclusions as to the illegality of the defendant's findings in respect of credibility it is clear that the decision of 6th December 2013 must be quashed. In those circumstances there is no need for conclusions to be formed about Ground 2. The circumstances the claimant's case will need to be reconsidered and findings made as to whether or not she is a victim of trafficking. The errors which I have identified in relation to Ground 1 suffice to dispose of the case.

36. For all the reasons set out above the defendant's decision must be quashed.

Published on Bailii, 18/01/2016


Last updated 22 January, 2016