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Victory in false imprisonment action challenging the lawfulness of Home Office Iraqi removal exercise

Monday 2 March 2020

David Jones of the Garden Court Chambers Immigration Team was instructed by Tori Sicher of Sutovic & Hartigan Solicitors.

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David Jones acted for the Applicant, QA whose claim for damages concluded mid-trial with an offer of settlement.

QA, an Iraqi national and a vulnerable at risk adult was detained on 27 March 2017 to enable his inclusion in a new Iraqi documentation and removal exercise. Following detention he was held for 4 months, whilst repeated attempts were made to remove him, over which time he consistently expressed suicidal thoughts, engaged in self-harm and attempted suicide on at least two occasions.

The documentation exercise into which QA was inducted in March 2017 was both novel and controversial. For the preceding five years there had been a moratorium on enforced removals to Iraq of persons who possessed neither original or copy Iraqi identity documents.

The barrier to enforced removal arose in part amid concerns that undocumented returnees may have been exposed to Article 3 ill-treatment on entry to Iraq, as identified in the country guidance case of HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409(IAC) [319; 324-5].

On the Applicant’s case that position persisted too over time, there having been identified in the case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) [204] a risk of exposure to conditions contrary to Article 3 for returnees not possessing an Iraqi CSID identity document or the means to obtain one within a reasonable time.

The Home Office initially contended in QA that the Iraqi authorities had changed their position on enforced removal and that from March 2017 were prepared to issue Laissez Passers (the name given to Iraqi Emergency Travel Documents) where identity and nationality were verified following an interview in detention conducted with Iraqi officials.

Disclosure by the Home Office pre-trial - which was substantially delayed and was not provided until some time after QA’s release – supported by evidence secured in cross examination from Home Office witnesses, suggested in fact that the only actual change affected to removal processes over the time of QA’s detention was the Iraqis preparedness to issue Laissez Passer’s to undocumented persons willing to leave voluntarily. On the evidence the Home Office’s capacity to affect enforced removals of undocumented persons remained wholly uncertain, a position indicated by the fact of the Home Office continuing to issue Guidance on Iraqi removals which was identical to that published over the preceding 5 years, altering the same only in October 2017.

The position in respect of QA himself was more controversial still. QA, who was unrepresented when detained and was designated an adult at risk on admission to detention, had been issued a Laissez Passer by the Iraqis on the basis of an expressed intention to return voluntarily – though the Home Office accepted he kept changing his mind. By 27 April 2017 QA had made clear he did not wish to leave and had submitted a new protection claim expressing a fear of return, so issues of voluntariness became irrelevant. Despite that, and contrary to the express terms of the Laissez Passer, the Home Office nonetheless maintained detention asserting removal was imminent and proceeded to attempt to enforce removal no less than three times. In evidence, the Home Office acknowledged that the Iraqi authorities had not been informed of QA’s altered position, that a new Laissez Passer should have been sought in light of the same, and that there was no certainty it would have been obtained during QA’s detention.

Perhaps unsurprisingly given the evidence adduced during the trial, on the fourth day of the hearing the Home Office agreed to settle, paying substantial damages.

David Jones of Garden Court Chambers said this of the case:

“QA’s treatment in detention was deplorable, as was the Home Office’s lack of transparency with regard to what was clearly a controversial removal exercise.

Many concerns persist in respect of this and subsequent removal exercises implemented to Iraq and whilst QA’s case has settled, it is in fact only the first of a number of civil claims Sutovic & Hartigan Solicitors have instituted challenging the 2017 enforcement process and that were pursued subsequently. The evidence secured from the Home Office witnesses in the course of QA’s proceedings will prove valuable in those claims.

We are determined to secure relief for all those who suffered loss of liberty and who were exposed to risk as a result of the Home Offices misconduct. The result in QA’s case is a positive beginning but there is much more to be done.”

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