R v. Secretary of State for the Home Department, Ex parte Sita Kamara Vafi
- Author: Court of Appeal (Civil Division)
- Document source:
-
Date:
2 August 1995
SITA KAMARA VAFI
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)
2 August 1995
Court of Appeal:
Beldam, Hobhouse, Henry LJJ
Judicial review-application for leave granted to move for judicial review to be set aside-issues on which leave to move had been granted had become academic-whether judicial review should proceed to establish a basis for a civil action for misfeasance.
Renewed application for leave to move for judicial review following setting aside of leave by Harrison J. The applicant was a citizen of the Ivory Coast. She had sought leave to enter the United Kingdom as a visitor: she was granted temporary admission: what she had told the immigration officer was found to be untrue: she was due to be removed from the United Kingdom: she claimed asylum: she failed to attend an interview or to abide by conditions attached to her temporary admission. She was then detained: her asylum appeal was dismissed. Removal directions were given. She went on hunger strike. She was monitored but was refused examination by a medical practitioner of her own choice. Judicial review proceedings were initiated seeking a review of that refusal. The Secretary of State then allowed her to be examined by her own nominated doctor. Application was then made for leave to move for judicial review to be set aside, the issue having become academic.
That application was resisted by counsel for the applicant. Although the issue had become academic it was argued that the Secretary of State's refusal amounted to misfeasance and civil proceedings were contemplated.
Harrison J set aside the grant of leave holding that it was not appropriate to grant leave to move for judicial review to found private law remedies.
The applicant appealed.
Held
1. The teamed judge at first instance had been correct in his approach and conclusions.
2. It was not appropriate to grant leave to move for judicial review where the original issues had become academic and the purpose of the application was to advance a private law remedy.
M S Gill for the applicant
S Kovats for the respondent
Case referred to in the judgments:
Secretary of State for the Home Department ex parte Sita Kamara Vafi [1995] Imm AR 528.HOBHOUSE LJ:
This is a renewed application for leave to move for judicial review. The applicant is a lady, Miss Vafi, who was born in the Ivory Coast on 23 October 1976. She came to this country by air, arriving on 28 May 1994, and was at that time aged 17 years 8 months. Her eighteenth birthday was not until October of last year. When she applied for leave to enter, she did so as a visitor. She gave an account to the immigration officers of how she was coming to visit her half-sister and a Mr Kanon, who was an official of the Ivory Coast embassy in London. She gave a detailed account of the relationship between Mr Kanon and her half-sister, including a reference to the two children of her half-sister and how they were all living together in this country. As subsequently emerged, and as is now admitted, this story was a tissue of lies. The immigration officers did not believe it at the time and she was refused leave to enter. It is also relevant that in the course of the interviews on that occasion, she made no suggestion of any wish or need to claim asylum nor were any facts even indirectly referred to which would have justified such an application. The whole basis of what she said in interview was completely inconsistent with any such position. She was given temporary admission on the basis that she was to stay with Mr Kanon and be available to be removed when she received the appropriate notice. Thereafter, two notifications were given to her for her to attend to be removed but she failed to comply with either. At the time that she was supposed to be complying with the second, a letter arrived from solicitors acting on her behalf making a claim for asylum. That was on 17 June 1994. Accordingly, arrangements were then made for her to attend to be interviewed in respect of her claim for asylum. However, she did not attend that interview. When enquiries were made, Mr Kanon said that she had left his address. He did not know where she was. The solicitors who had written on her behalf said they had lost contact with her but she had given them an address. The address when subsequently checked turned out to be one where she was not known, and so far as anybody was aware, she had never been living. It was only by chance that she was subsequently picked up about a month later. Inevitably that led to her detention at Campsfield House and she was detained there at all material times thereafter. The processing of her claim for asylum could then proceed. She was interviewed by the appropriate officers. They did not believe her story and her claims and they refused her asylum. She then exercised her right of appeal to a special adjudicator. In November the hearing before the special adjudicator took place. She was represented by counsel and by solicitor. She gave evidence on her own behalf and she was able to put before the adjudicator all the material which she wished to have taken into account in support of her application. it was apparently quite a lengthy hearing. The adjudicator gave his decision, which runs to 11 pages of typescript. His conclusion was:"I am satisfied that the appellant is a witness to whom no credibility of any kind can be attached."
He described her evidence as "unrelated to the truth" and he also said:"I have no doubt that she had fabricated [certain matters she alleged] ... I am satisfied that she was knowingly telling me a series of falsehoods about her experiences on arrival in the United Kingdom."
Her application was therefore rejected by the special adjudicator. That did not exhaust her legal rights. She was entitled to apply for leave to appeal to the Immigration Appeal Tribunal. She did make such an application and it was refused. That occurred on 16 February 1995. At about this time she started to refuse food and, on occasions, drink. She persisted in this refusal and she had to be placed under direct medical supervision at the institution. There is evidence that thereafter her medical condition was carefully monitored by doctors and by the nursing staff. Her hunger strike naturally gave cause for concern. She was, however, still able to see visitors. She was able to communicate with the outside world. But, inevitably, there were certain limitations that had to be placed upon her freedom of movement within the institution. Matters then progressed during the course of the latter part of February towards preparation for her removal from the country. She continued to be carefully monitored. We have been taken through the various medical notes that are in evidence, and which were in evidence before the judge. They show that independent doctors, that is doctors who were drawn from outside the institution, who were people in the employ of the local health authority and in general practice, were called in to consider and report upon her condition. There came a stage when she declined a medical examination. She requested that a female medical examiner be called in. One was called in and she attempted to examine the applicant but Miss Vafi refused to let her examine her. Also at about this time, towards the end of February, when she knew that she was about to be deported, she adopted the stratagem of eating soap and swallowing some lotion. This inevitably made her unwell and those who were responsible for her medical care took it into account. But her overall medical health remained satisfactory, apart from her somewhat weakened state as a result of her refusal to eat properly. When the time for her removal actually arrived, she adopted the further stratagem of removing her clothes. The affidavit which was sworn to lead the original application for judicial review, put in these words:"As a result of her fear of being taken at any time for removal to the Ivory Coast, the applicant removed all her clothing, including her underwear. This was in the belief that she would not then be forcibly taken from Campsfield House."
That stratagem was not successful. The authorities did nevertheless remove her from Campsfield House to appropriate accommodation at Gatwick. This incident was carefully monitored, both by representatives of the Home Department and by a member of the visiting committee. She witnessed the procedure. She said she was impressed by the professionalism and sensitivity of the team carrying out the removal. It appears from the evidence that before the team entered the room, Miss Vafi had already been covered with a sheet so as to conceal her nakedness, and it was on the insistence of the team that she was clothed before she was removed from the room where she was. The position was also that throughout she had had legal advice and representation. She continued to have a solicitor acting for her who was thoroughly familiar with her case, and clearly fully competent to look after her interests. Also, from a much earlier stage she had continued to enjoy the benefit of a system whereby people can be made available to befriend people in the position of Miss Vafi; representatives from a panel of such people had been visiting her, and were apparently continuing to do so. These are the circumstances in which a further body came on the scene. It is apparently based in Geneva and it is called the Medical Foundation for the Care of Victims of Torture. Political representations had been made on behalf of Miss Vafi, and it is no doubt as a result of that, that the Medical Foundation thought it would be advantageous that they should intervene, even though she was in no way a victim of torture. On 28 February they made a request that they be allowed to, send a medical examiner to examine Miss Vafi. They apparently obtained the consent of her then solicitor to make this request. They were not at that stage given permission to do so by the authorities. The attitude that was adopted was that she was already receiving independent medical supervision, and there was no justification for allowing her to have any further medical examinations by the outside parties. Whether or not that view was correctly adopted is now academic, as I will explain. At about the same time and shortly afterwards, new solicitors appeared on the scene who, in the course of 2 March, persuaded the existing solicitors to hand over the case to them so that they were then able to represent Miss Vafi. Miss Vafi was by then at Gatwick on the verge of being removed from the country. It was expected that she would be removed on the following day. There had not been any examination of her by the doctors which the organisation wished should examine her, and the new solicitors applied to Longmore J for an injunction to prevent her being removed pending further medical examination. The way it was put in the affidavit of 3 March sworn by Miss Conlan to support the application for judicial review was this:"I now attest to the truth of the statements contained in this affidavit and in support of the application for judicial review of the decision to refuse the applicant an independent medical examination regarding her fitness to be removed from the United Kingdom."
That was the grievance that was advanced at that time. The judge granted a holding injunction pending an inter partes hearing. That took place the following day, 3 March, and it was then accepted on behalf of the Home Department that it was appropriate that there should be such a medical examination and arrangements were made for that to take place. At the same time, leave to move for judicial review was given in the terms for which it was then asked. The form said that the grounds upon which relief was sought were that the decision to remove the applicant is flawed for the following reasons:"The Applicant's mental state
1. The Secretary of State has wholly unreasonably refused to allow the Applicant to be examined prior to removal by a person provided by the Medical Foundation for the Care of Victims of Torture who is able to assess the medical state of the Applicant.
2. The Secretary of State's reasons for so refusing are illogical and wholly unreasonable."
There were then references to her age which were based upon the assumption (which was incorrect) that she was under 18. There was also a reference to the European Convention on Human Rights and to whether the notice of removal had been given to her in sufficient time before the removal was to take place. Owing to the grant of leave and the injunction, the matters complained of became academic. She was examined on the following Monday. This disclosed nothing specific in relation to her medical condition to justify her not being deported, as opposed to her determination not to be deported and the lengths to which she might go in order to avoid deportation. However she was not deported and has not since been deported. She was given extended permission to remain and she has been allowed to leave the institution. That is the present state of affairs and that remains the position up to the present day. Faced with that situation, the Home Department considered that it was necessary that the leave to move for judicial review should be reconsidered and a notice of motion was issued on 7 March. That application was not able to be heard straight away. It subsequently came before Harrison J on 16 May. By that time the applicant had sought to amend her Form 86A to claim further relief and rely upon additional grounds. The essence of the new document was to claim declarations that the attempt to remove was unfair, unlawful and unreasonable; that the respondent had unlawfully interfered with the applicant's right to legal advice and free access to the courts; declarations that the respondent had unlawfully refused to allow the applicant to be examined by a doctor instructed by her for the purposes of assessing whether she was fit to travel; and then an injunction and damages. The further grounds which were relied upon extended the complaints in a corresponding manner, including allegations of negligence being made against the Home Department and persons acting on the Department's behalf. The matter came before Harrison J (as I have said) on 16 May. He discharged the leave to move for judicial review and he refused the application to amend the Form 86A. The essence of what he decided was that the matter, as originally complained of, had become academic, and the complaints which it was now sought to raise were essentially private law complaints which were made with a view to establishing private law remedies against the Home Department or persons acting on its behalf. He declined to entertain that approach to the case. He examined the merits of the complaints and came to the conclusion that factually they were not justified in any event. The renewal of the application before this court has been fully argued with a full skeleton argument. In my judgment, the question remains the same as it was before Harrison J, and his conclusion remains correct. The original complaints are now wholly academic. It is accepted that the decision to remove was an entirely lawful one. It is accepted that the refusal of asylum cannot be challenged. The only complaints that can be pursued are the allegations which relate to the manner in which the removal directions were carried out; if there is anything in them, they are capable of being the subject of civil law remedies. In my judgment the judge was perfectly entitled to form the view that that was the course which Miss Vafi should pursue, if she thought and was able to persuade others that there was any merit in the complaints which she was wishing to make. The judge was entitled to take the view that, so far as public law remedies were concerned, the matter had become academic. She could not be removed from this country except by the making of a fresh direction for her removal. Should a further direction be given, if it should be in any way flawed, that direction could then be the subject of appropriate and distinct judicial review proceedings. As regards what had happened in March of this year, the complaints that she had to make had become and remain academic. Accordingly, in my judgment, the judge was right. This is not a case for the grant of leave to move for judicial review and the application which she makes to this court should be refused.HENRY LJ:
I agree that this application should be refused for the reasons my lord has given.BELDAM LJ:
I also agree.DISPOSITION
Application dismissedSolicitors:
Garsia Maurice Andrews, Birmingham; Treasury SolicitorDisclaimer: Crown Copyright
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