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Asylum seeker entitled to damages over 'disgraceful' treatment, judge rules

Published 08/10/2015

A senior judge described the treatment of a 42-year-old asylum seeker from Sudan as
A senior judge described the treatment of a 42-year-old asylum seeker from Sudan as "utterly unreasonable and truly disgraceful"

An asylum seeker who says she fled brutal treatment in her homeland is entitled to damages against the UK Government after being unlawfully held in detention, the High Court has ruled.

In a case brought against Home Secretary Theresa May, a senior judge described the treatment of the 42-year-old from Sudan as "utterly unreasonable and truly disgraceful".

Mr Justice Collins, sitting in London, said there was strong medical evidence that the woman had suffered repeated rape and torture in Sudan.

The woman,"IKM", who cannot be named for legal reasons, then suffered further damage to her health as a result of spending 37 days in an English detention centre between December 7 2013 and January 13 2014, her lawyers complained.

Ordering damages to be assessed either by the High Court or a county court, the judge said: "Very properly the secretary of state has conceded her detention was unlawful.

"It is well known that she was someone who in all probability had sustained torture and that meant she was someone who should not be detained unless there were very exceptional circumstances. There were none.

"It damaged her health to such an extent that on her eventual release from custody she had to spend three weeks in hospital.

"It is, I hope, a unique case because the behaviour of those responsible was utterly unreasonable and truly disgraceful."

He said IKM, a non-Arab from Darfur, described working as an accountant in Khartoum.

In 2004 Janjaweed militiamen were responsible for killing her father and kidnapping her mother and she went back to Darfur to take care of her family.

She said she returned to her home village with her fiance, but he was killed in another Janjaweed attack and she was shot in the leg and raped.

She managed to escape and went to another village but two years later she was detained for three days by state security agents on suspicion of being a Darfur rebel.

The judge said: "She was very badly treated. She was stabbed with a knife, beaten and raped."

She was detained again for three days in 2007 and raped repeatedly by several men, as well as being beaten.

Interrogated at knife point, she agreed to sign documents when the blade penetrated her neck and she started bleeding.

As a result of her treatment she came to England the following year to study, but then decided to claim asylum in the Republic of Ireland in the belief she could not claim in England because she possessed a student visa, said the judge.

Her asylum claim was rejected and her appeal dismissed in 2010. She made her way back to England via Belfast to an area in the North-East where she gained the support of a local Sudanese community.

However, the Home Office certified that she should be returned to the Republic of Ireland under the Dublin Convention. Officials concluded it was for the Irish authorities, despite them having refused her asylum, to consider further whether there were humanitarian reasons to give her refuge.

Quashing that certification, the judge said IKM's story of rape and torture was consistent and credible, and up to five different doctors all agreed she was suffering from post traumatic stress disorder and the flashbacks she was suffering were "not in the least surprising".

The judge added: "In circumstances such as these, it is difficult to see this as other than a cast iron case for asylum in this country.

"The secretary of state should seriously consider whether it really is humanitarian to require the Dublin Convention provisions to be followed, rather than adopting a compassionate approach in the particular circumstances of this case."

But the judge stressed it was for the Home Secretary and her department - not him - to make a final decision on whether she should be allowed to stay.

Applying for permission to appeal, David Mitchell, for the Home Secretary, suggested the judge's ruling "emasculated" the Dublin Convention.

Refusing the application, the judge said there was no emasculation of the convention. The Government had the choice whether or not to apply it, given the circumstances.

It is still open to the Home Secretary to appeal to the appeal court directly.

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