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09 JAN 2014

R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin); (2013) PLLR 131

Immigration - Torture - Credibility - Forgery

The Defendant failed to demonstrate that removal to Country A would involve a real risk of torture. His credibility had been significantly undermined by his repeated reliance upon false documentation.

7 November 2013

Administrative Court

Mostyn J

(1)        This judgment addressed the Claimant's claim for an order that the Secretary of State allow him to return to the UK and he be awarded damages.

(2)        The Claimant contended that the Secretary of State or those acting for her placed confidential documents in his baggage prior to his removal. These documents concerned his failed asylum claim and his participation in the activities of Organisation 1. These documents came to the attention of agents of the government of Country A, where he had been removed to, and he was detained and brutally tortured. The Claimant contended that his family had since paid a bribe in order to facilitate his release, and he had remained in hiding since.

(3)        Prior to the Claimant's removal, he refused to pack his things. As such, room clearance took place and a certificate was prepared that showed that various paperwork had been packed. The certificate was later corruptly redacted to remove reference to the paperwork and the original copy was only produced upon request from the Claimant's solicitor. The custody record that accompanied the Claimant's removal made no reference to the Claimant questioning whether his documents had been packed, but the Claimant contended that he had twice asked those escorting him to remove the documents from his bag. There were significant discrepancies in relation to the Claimant's statements as to what happened once he had been arrested at the airport, and in particular in relation to his allegations of torture.

(4)        It was contended that the Defendant:

a.         Breached her public law duty not to place the Claimant at risk of torture;

b.         Breached article 3 ECHR by placing the Claimant at risk of being tortured;

c.          Breached her duty of confidentiality by causing the disclosure of confidential information to the authorities in Country A;

d.         Unlawfully interfered with the Claimant's rights under article 8 ECHR and article 7 of the Charter of Fundamental Rights of the European Union by causing private information to be disclosed to the authorities in Country A; and

e.          In breach of article 8 of the Charter of Fundamental Rights of the European Union failed to protect the Claimant's personal data.

(5)        The Court referred to The Seventh Protocol to the Lisbon Treaty, which it read as securing an opt-out from the incorporation of the Charter into EU law, meaning that it did not create any further justiciable rights in UK domestic Courts. It noted however that this view was not shared by the European Court of Justice, which in Secretary of State for the Home Department v ME and others (21 December 2011) stated that there was no exemption from the obligation to comply with provisions of the Charter.

(6)        The Court stated that the Claimant had used false documents to bolster his asylum claim, and noted that he had ‘no scruples about manufacturing and advancing false ones'. Throughout the Claimant's claim for asylum and further representations, he did not mention membership of Organisation 1, but instead advanced false documents. The Court noted that despite the Claimant being in hiding, he had been able to communicate with his solicitors and the British Embassy to set up a video-link from a United Nations Building. This suggested the authorities of Country A were no longer interested in the Claimant.

(7)        The Court found that the Claimant was manipulative, unscrupulous and deceitful, with a history of dishonesty. His contention to be a member of Organisation 1, which would place him at risk of torture, was held not to be true. The documents produced were clearly fake, and the Claimant had very limited knowledge of the organisation to which he claimed to be a member. 

(8)        The Court rejected the contention that the Claimant repeatedly asked for documents to be removed from his baggage. The Court also held that there had been no dangerous or compromising documents placed in the Claimant's baggage. The Court found that the Claimant had not discharged the burden of proof in order to demonstrate that he had been detained or tortured. There was therefore no risk of torture and the Court therefore did not need to make a finding as to the right of protection of personal data or privacy.

(9).       The falsification of documents relating to the room clearance by agents of the Secretary of State was not determinative, but the Court emphasised that such conduct significantly undermined the trust of the public in the rule of law. The Court recommended that a copy of this judgment be sent to the Director of Public Prosecutions in order that the offence of forgery might be investigated. The claim therefore fell to be dismissed.

Claim dismissed

Key paragraphs

[12] - No justiciable Charter rights.

[55] - Able set up video-link.

[40] - Claimant's character. 

[64] - No dangerous documents placed in baggage.

[65] - Factual findings.

[66] - Not detained or tortured.

[69] - No risk torture.

[71] - Corrupt agents.

[74] - Conclusion.

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