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Reported Case

MA, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 1502 (Admin) (16 July 2020)

Date: 16/07/2020
Duncan Lewis, Reported Case Solicitors, MA, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 1502 (Admin)

We represented the Claimant ‘MA’ in an application for judicial review.


Background

MA is a national of Pakistan who arrived in the UK in September 2011 on a Tier 4 student visa which was valid until 14 April 2012, on that day he applied for further leave to remain as a student but this leave was refused.

On 7 September 2012 the Tribunal dismissed MA's appeal against the refusal of student leave. Permission to appeal that decision was refused on 25 September 2012. MA became appeals right exhausted on 5 October 2012.

On 8 March 2013, MA was granted temporary admission with reporting restrictions, he subsequently failed to report in accordance with these restriction and thereafter went to ground and made no attempt to regularise his status. He remained in the UK unlawfully until he was arrested in August 2016 for selling counterfeit goods and for immigration offences. He was detained under immigration powers pending removal from the UK.

A detention review at the time noted that MA was a persistent absconder. The review noted he could be removed on an Emergency Travel Document ("ETD") which might take four weeks to obtain. In the meantime he was transferred to both Pennine House IRC and Harmondsworth IRC and was on both occasions seen by a nurse.

On 2 September 2016 an application for an ETD was initiated and MA was placed on the list for the Pakistani ETD interview scheme at Colnbrook IRC. On 5 September 2016 MA's detention was reviewed by the SSHD and maintained.

On that same day MA claimed asylum on the basis that he was a convert to the Ahmadi faith whilst in the UK and feared persecution in Pakistan, stating that “there are laws against Ahmadi Muslims in the Penal Code”. His ETD interview was cancelled following his asylum claim and he was also considered suitable for the Detained Asylum Casework (DAC) scheme.

On that day he underwent an asylum screening interview. MA confirmed that he was claiming asylum on the basis that he had converted to the Ahmadi faith whilst in the UK. He stated that his family and people "don't like Ahmadi Muslims" and that "there are laws against Ahmadi Muslims in the Penal Code." He further claimed to have been previously tortured for being mistaken for an Ahmadi Muslim.

MA’s asylum claim was refused by the SSHD on 10 November 2016.


Asylum Appeal

MA attended his asylum appeal in December 2016 which was dismissed by the Tribunal with the immigration judge stating;

“I do not accept that the appellant is a genuine Ahmadi convert. His evidence was inconsistent, not credible nor plausible… He has lived in the United Kingdom for no more than six years. For the majority of that period, he was living here unlawfully and illegally."

Following this the SSHD received a report under Rule 35 of the Detention Centre Rules, where the doctor’s examination findings were:

"On examination there is little of noted [sic] other than a left-sided brow swelling which may be due to the attack described. He continues to suffer with intermittent left-sided chest pain following attack to his ribcage."

The SSHD considered the report but concluded that it was appropriate to maintain MA’s detention notwithstanding the Rule 35 report.

MA later wrote to the SSHD explaining that he was gay and that he was at risk of persecution on the basis of his sexuality should he be returned to Pakistan.


Outcome

Anthony Elleray QC Deputy High Court Judge considered that regard should be properly made to the chronology of events, pointing out that by the time MA informed the SSHD that he wished to rely on his sexuality until January 2017, he had already exhausted his appeal rights in relation to the Ahmadi asylum claim.

He also noted;

“Bearing in mind MA's adverse immigration history, his risk of absconding and the lateness of his LGB asylum claim it was considered appropriate to maintain his detention at least until he had been interviewed about his recent and new claim.”

He agreed that;

“…the SSHD was entitled to investigate the veracity of MA's LGB claim, particularly given its timing and the serious adverse credibility findings already made by the Tribunal in respect of his previous account. Furthermore, given his adverse immigration history and high risk of absconding, the SSHD was entitled to maintain detention whilst the investigation took place…it was not unlawful or discriminatory to detain MA merely because he had made a late and uncorroborated claim for asylum based on LGB identity.

“…even assuming the late asylum claim was credible there was no evidence before the SSHD during the course of his detention that MA was suffering any particular harassment or discrimination in detention or was otherwise unsafe in the detention setting by virtue of his sexuality.”

He ultimately concluded the following;

“I do not consider that the discrimination claim has been made out. I have found failures to carry out the rule 34 examinations but concluded that they sound only in nominal damages. I otherwise dismiss the claims.”

After the judgment was reported, MA’s further submissions interview was conducted on the 14 June 2019 outside detention and his case was refused on the 29 June 2019. MA appealed the said decision which was allowed by the First-tier Tribunal and MA was granted refugee status based on his sexuality. Had his case proceeded under DAC not giving him the opportunity to collate evidence to collaborate his sexuality claim, it is likely his case would have been refused.


Representation

The client was represented by immigration solicitor Vilash Gami.



 

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