England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/07/2011

Mr Justice Kenneth Parker :

Introduction

1. This is in effect an action for damages for false imprisonment. The Claimant is a citizen of Uganda. She says that she entered the United Kingdom on 8 October 2004 and that she was required to live with a person called Andy Walker for about three years, during which time she performed domestic tasks for him in order to repay the debt for being brought to the United Kingdom. She states that he had sex with her every day without her consent but that eventually she was abandoned at a pub where she found a man who spoke Swahili and who looked after her.
2. On 14 January 2008 the Claimant applied for asylum. She was detained the same day and her application was processed under the fast track procedure. In her screening interview on 14 January 2008 the Claimant stated:

"I am afraid as I have been arrested and tortured. I am afraid if I go back the same will happen and I may be killed."

3. In her asylum interview on 21 January 2008 and in her undated asylum statement she said that she had been stripped naked, beaten with whips/batons, her hair cut, was repeatedly raped, doused with freezing water and denied food while in Ugandan detention. At her interview the Claimant, on two occasions, said that she suffered very continuous headaches and sometimes her joints were painful.
4. The Claimant had been held at the asylum screening unit in Liverpool and at Manchester airport centre overnight. On 15 January 2008 she had been admitted to Yarlswood Detention Centre. The Claimant was also interviewed on 15 January 2008 on her reception to the Yarlswood Reception Centre. The questions on the detainee medical review interview form, namely "Has this person stated that they have been a victim of torture?" and "If yes, has a form been filled in?" were apparently not asked of the Claimant and were left blank on the form.
5. At her Yarlswood admission medical interview the Claimant signed a typed form headed "SERCO" which carried the statement "I do not wish to see a doctor at this time. I understand that should I change my mind at a later time I can make an appointment at healthcare for further medical review."
6. In her screening and asylum interviews and in her asylum statement the Claimant had said that on arrival in the United Kingdom she was told by the agent that her father had not paid him sufficient money for her passage and that she was going to have to work here to pay the amount owed, that she would be working for an Andy Walker, cooking and cleaning and "all wife roles".
7. In answer to the screening question "Have you ever tried to escape from Andy Walker?" the Claimant replied "No, I didn't know where to go. I used to think of it but I didn't know where to go". In answer to the interview question "Have you ever reported the problems you had with Andy to the police?" the Claimant answered "No", saying that "Andy never used to let me go out on my own" and that she was scared because of her past experience with the police.
8. The Claimant said that Andy took her to a public house on a date unknown in or about December 2007. He abandoned her there. The Claimant had been kept and exploited by him in a position of servitude for three years.
9. The Claimant's application for asylum was refused on 22 January 2008. An appeal was dismissed on 1 February 2008. The Immigration Judge found that the Claimant was entirely incredible. The Immigration Judge said, at paragraph 32:

"The Appellant arrived in the United Kingdom in 2004 and she claims that she was made a prisoner by a man called Andy. There is no statement from her boyfriend, who she claims met her in the pub where Andy abandoned her, to corroborate this. The Appellant further claims that she was kept a prisoner by Andy for three years. He did not allow her to leave the premises without him and when he left he locked her in. The Appellant was unable to explain why she, an educated person, was unable to seek any assistance when she was left in the property on her own. This was for a matter of nearly three years. I do not believe that this Appellant was being kept a virtual prisoner by any person. There is no evidence of this. Once the Appellant did make her claim for asylum she did not report the matter to the police and did not seek the assistance of the authorities to seek out Andy. The Appellant claimed she did not know where she lived. I do not find that explanation credible. In any event I find the Appellant's story of her being held a prisoner for three years not credible for the reasons I have given."

10. As to the Claimant's asylum claim, the Immigration Judge said, at paragraphs 34 and 35:

"I find that the appellant's whole account of detention and ill-treatment in Uganda for the reasons she has given is not credible because of the appellant's failure to explain the various discrepancies that have arisen in her account not only at the hearing but also in the substantive interview. The appellant was unable to explain why she referred continuously to the FDC [Forum of Democratic Change] when this party was not formed until August 2004 …

35. On the whole I find that this appellant has fabricated her account in order to form the basis of an asylum claim."

11. Applications for reconsideration were refused by the Senior Immigration Judge on 7 February 2008 and by the High Court on 21 February 2008. Removal directions were set on 22 February 2008 for removal to Uganda on 28 February 2008. In the meantime, applications to the AIT for bail were heard and dismissed on 21 January 2008 and 18 February 2008. The Claimant then made contact with the Poppy Project which provides accommodation and support for women who have been trafficked into prostitution. The Secretary of State indicated that removal directions would be maintained unless and until the Poppy Project made a final assessment, in line with their published guidelines, that the Claimant had been trafficked and that there was a safe place for her to go.
12. On 26 February 2008 the Claimant issued the present proceedings and removal directions were deferred. On 5 March 2008 the Poppy Project wrote a letter stating:

"Miss T disclosed in her assessment that she had been brought from Uganda into this country by a man who facilitated her travel and subsequently exploited her upon arrival in the UK. On the basis of the information given in the assessment we conclude that Miss T was trafficked into this country for the purpose of domestic servitude."

13. This letter was provided to the Secretary of State by 11 March 2008. The Secretary of State agreed to reconsider the Claimant's claim in the light of the letter from the Poppy Project. On 19 March 2008 the Claimant was released on bail. Eventually, on 22 February 2010 it was accepted that the Claimant was a refugee.

The Legal and Policy Framework

14. A power to detain is provided by paragraph 16(2) of Schedule 2 of the Immigration Act 1971. This states:

"If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A …, that person may be detained under the authority of an immigration officer pending -

(a) a decision whether or not to give such directions;

(b) his removal in pursuance of such directions."

There is no issue in this case that the Claimant fell within the relevant paragraphs of Schedule 2 of the Immigration Act 1971.

15. As to the fast track procedure, that procedure was held to be lawful in R (Saadi) v SSHD [2002] UKHL 41 (2002) 1WLR 3131. The Border and Immigration Agency asylum process instruction on suitability for detained fast track (DFT) 28 July 2007 states:

"1. Any asylum claim, for whatever the nationality or country of origin of the Claimant, may be considered suitable for fast track where it appears after screening to be one that may be decided quickly.

2. It is the responsibility of the duty officer at the asylum intake unit (AIU) to identify claims suitable for the DFT process at Yarlswood."

16. The list includes countries likely to provide claims suitable for inclusion and Uganda was such a country. It also identifies claims unsuitable and unlikely to be accepted into the detained fast track process. That list includes:

"- Anybody where there is independent evidence that she is being tortured,

- where there is independent evidence from a recognised organisation, for example the Poppy Project, that the Claimant has been a victim of trafficking. (See also OEM Ch 38 para 38.4)"

17. The Detention Centre Rules 2001 were made pursuant to Section 153 of the Immigration and Asylum Act 1999. Rule 34 (Medical Examination upon Admission and Thereafter) provides as follows:

"(1) Every detained person shall be given a physical and mental examination by the medical practitioner or another registered medical practitioner in accordance with rules 33(7) or (10) within 24 hours of his admission to the detention centre.

(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.

(3) If a detained person does not consent to an examination under paragraph (1) he shall be entitled to the examination at any subsequent time upon request."

18. Rule 35 (Special Illnesses and Conditions, including Torture Claims) provides as follows:

"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

…

(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it and make any special arrangements, including counselling arrangements which appear necessary for his supervision or care."

19. Rule 34 was specifically considered in R (D and K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin) and in R (PB) v Secretary of State for the Home Department [2008] EWHC 364.
20. In D & K Davis J (as he then was) stated:

"50. In my view the combined effect of the Detention Centre Rules, the statement of Lord Filkin, the provisions of Chapter 38 of the Operation Enforcement Manual and the relevant provisions of the Detention Services Operating Standards Manual all point in one direction: which is that the medical examination required under Rule 34 of the Detention Centre Rules is a part – an important part – of the safeguards provided to assess whether a person, once removed to Oakington, should continue to be detained there under the fast-track procedure. Further, it seems to me to be a necessary corollary of that that any such concerns as to torture as may be identified by the medical practitioner would at least be capable of constituting "independent evidence" for the purposes of the Government's announced policy. Indeed if that were not so, it is difficult to see why so much emphasis has consistently been placed on the availability of – indeed, requirement for – such physical and mental examination. It is also to be noted that the structure of Rule 35 is such that the requirement under Rule 35(3) for the medical practitioners to report concerns as to torture is distinct from any requirement to report on grounds of injury to health by reason of detention (Rule 35(1)) and from any requirement to report concerns of suicide (Rule 35(2)).

….

52. I would, however, agree with Ms Richards that there is a separate question as to the weight to be given to such evidence; and I would not agree with Mr Rabinder Singh's submissions to the extent that such submissions connoted that any expression of concern arising from medical screening (whether or not arising from a Rule 34 examination) would "inevitably" mean that the asylum application in question would then have sufficient complications to render it inappropriate for the fast-track procedure (and concomitant detention) to be maintained. Indeed I do not read Lord Filkin's statement as making so wide-ranging a concession even with regard to a report made under Rule 35(3). A concern as noted on an AOT form by, for instance, a relatively inexperienced nurse after an initial screening may be regarded as very different from a concern noted by an experienced doctor contained in a Rule 35(3) report in deciding whether to continue to detain. In any event, always relevant will be the way in which such concerns – whether or not by way of Rule 35(3) report - are reported and, to some extent, the strength with which such concerns are raised. In some cases the result may then be the removal forthwith of the asylum-seeker from the fast-track procedure. If so, whether the asylum-seeker should then be detained elsewhere will depend on whether there are sufficiently exceptional other circumstances to justify such detention."

21. As to trafficking, the Home Office Operation Enforcement Manual (OEM), chapter 42 stated at the material time:

"This guidance should be followed during all operations where individuals who may be victims of trafficking for sexual exploitation are encountered so that potential victims are handled in a consistent and sensitive manner. During operations, enquiries into whether a person is a victim of trafficking should take precedence over enquiries into the individual's immigration status. Officers should be aware that victims of trafficking for sexual exploitation are likely to be classified as vulnerable persons and detention will not normally be appropriate." (emphasis in original)

22. Further, chapter 42 stated that if officers encountered a potential victim they should contact the United Kingdom Human Trafficking Centre who would be able to advise on making a referral to a support service or directly to the Poppy Project.

The Relevant Legal Principles Concerning Unlawful Detention

23. In this case the Claimant contends that her detention was unlawful because the Defendant did not follow the policies that were applicable to her, namely the policies concerning victims of torture and victims of trafficking. The question whether a breach of policy may affect the legality of a decision to detain exercised the courts on a number of occasions. Finally, the issue reached the Supreme Court which has now given definitive guidance in two appeals, namely Walumba Lumba (previously referred to as WL) (Congo)1 and 2 v SSHD [2011] UKSC 12 ("Lumba") and Shepherd Masimba Kambadzi (previously referred to as SK) (Zimbabwe) v SSHD [2001] UKSC 23 ("Kambadzi").
24. The appeals to the Supreme Court raised the issue of whether a material public law error of law in the exercise of the discretion to detain rendered the detention unlawful, whether there was a distinction to be drawn between public law errors going to the exercise of the power to detain and errors going to the existence of the power to detain, and whether detention in breach of a policy was unlawful if the person would have been detained if the breach of policy had not occurred (the causation test).
25. In Lumba the majority held that the decisions to detain the Appellants pursuant to the unlawful policy were unlawful and the consequent detention was a false imprisonment. The majority rejected the causation analysis adopted by the Court of Appeal in WL(Congo) (see Lord Dyson, paragraphs 62-71, 88-89, 169; Lord Hope 175; Lord Walker 193-194; Lady Hale 207-208, 211; Lord Collins 219, 221; and Lord Kerr 238-240, 247, 248-251). The majority approach was endorsed by reference to R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139. Lord Dyson, Lord Hope, Lord Walker, Lady Hale, Lord Collins, Lord Kerr and Lord Brown held that it was sufficient for a false imprisonment claim for there to have been a material public law error of law in the exercise of the discretion to detain. The breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result. But the majority held that this was not the same as saying that the result would have been different had there been no breach. No distinction was drawn between public law errors going to the exercise of the power to detain and errors going to the existence of the power to detain following Anisminic v The FCO [1969] 2 AC 147 (see Lord Dyson at 64-66, 69; Lord Walker 194; Lord Hope 175; Lady Hale 207; Lord Collins 221; Lord Kerr 247).
26. There was consideration by the majority of the nature of public law errors that could found a claim for false imprisonment. The Appellants in Lumba accepted that not all public law errors rendered the detention unlawful. The error must be capable of affecting the decision to detain or not to detain (see Lord Dyson at 68). Lady Hale, Lord Collins and Lord Kerr agreed with Lord Dyson's approach but Lord Walker, at 193, preferred a more demanding test that in a case where an extant statutory power to detain has been wrongly used there would be a private law claim only if the misuse amounted to an abuse of power. Lord Walker, however, left this issue open and did not decide the point because he was satisfied that the case before him was an example of a serious misuse of power. Lord Hope, at 171 and 175, did not expressly adopt this approach. He agreed with the reasoning of Lord Dyson, although he did not share Lord Dyson's difficulty about Lord Walker's use of the phrase "abuse of power".
27. In Kambadzi a serious criminal offender and overstayer was detained for 27 months pending the making of a deportation order. Kambadzi argued that this period of detention was unlawful because his detention should have been regularly reviewed in accordance with the Defendant's policy, namely OEM at Chapter 38: Detention and Temporary Release. Under this policy, Kambadzi was entitled to a total of 27 reviews, he received only 10. It was accepted that throughout the period of detention the Hardial Singh principles were complied with and Kambadzi could have been detained lawfully.
28. While Lumba concerned the criteria for detention, Kambadzi concerned a failure to comply with procedural requirements for reviews of detainees. The Supreme Court considered whether the failure to follow the published policy and to comply with the requirements of regular reviews of detention to monitor changes in circumstances rendered the detention unlawful. The majority accepted that the original lawful detention was rendered unlawful by these failures (see Lord Hope at 51, 54; Lady Hale 73, 77; Lord Kerr 85, 86, 88) Lord Brown and Lord Roger dissented, as Kambadzi would not have been entitled to release even if his detention had been reviewed. Therefore he could not be said to have been unlawfully detained (107). In particular Lord Hope noted that OEM Chapter 38 was concerned with the lawfulness of detention and had been designed to give practical effect to the Hardial Singh principles. He observed that the OEM contained a set of instructions with which officials were expected to comply and that the Hardial Singh principle and the instructions in the manual go hand-in-hand (51). Accepting that the OEM policy in Kambadzi was concerned not with grounds for detention but with procedure, Lord Hope held that a failure by the Executive to adhere to its published policy without good reason could amount to an abuse of power which rendered the detention itself unlawful (41).
29. In my view the following passage in the judgment of Lady Hale in Kambadzi is of particular relevance to this claim:

"70. Sometimes a statute puts the effect of a failure to follow procedural requirements beyond doubt. The Police and Criminal Evidence Act 1984, section 34(1), states that "A person . . . shall not be kept in police detention except in accordance with the provisions of this Part of this Act"; those provisions require regular reviews; failure to conduct those reviews on time renders detention beyond the time when they should have been conducted unlawful: see Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, CA. Sometimes a statute does not say in so many words that failing to comply with one of its procedural requirements will render the resulting detention unlawful, but the courts will construe the statute to mean that it does. An example is the prohibition in the Mental Health Act 1983, section 11(4)(a), of making an application for compulsory admission to hospital if the patient's nearest relative objects: Re S-C (Mental Patient: Habeas Corpus) [1996] QB 599, CA. In these cases, it is irrelevant that the person concerned could have been lawfully detained had the correct procedures been followed. Sometimes, however, the court will conclude that the lawfulness of detention does not depend upon the fulfilment of a particular statutory requirement. For example, in R (D) v Secretary of State for the Home Department [2006] EWHC 980 (Admin), it was common ground that failing to comply with the requirement in the (Immigration) Detention Centre Rules 2001 SI 2001/238 that immigration detainees be given a medical examination within 24 hours of arrival did not render the detention unlawful unless the detainees could show that it would have led to their earlier release."

The Alleged Breaches of Policy

Rule 34

30. The Defendant contends that there was no breach of Rule 34 because the Claimant, as explained earlier, signed a typed form headed "SERCO" which carried the statement "I do not wish to see a doctor at this time. I understand that should I change my mind at a later time I can make an appointment at healthcare for further medical review". In other words, the Defendant maintains that Rule 34(2) was applicable, namely, the detained person was not consenting to a medical examination.
31. However, in my judgment this explanation is too simplistic. As already explained, in her screening interview on 14 January 2008 the Claimant was already stating that she had been a victim of torture in Uganda. Notwithstanding that she had already stated that she was a victim of torture when she was interviewed on 15 January 2008, on reception to Yarlswood reception centre unaccountably she appears not to have been asked whether she was a victim of torture. That part of the relevant form was simply left blank. The only reasonable inference from this documentation was that she was not in fact asked at that interview whether she had been a victim of torture. She should have been asked, particularly in the light of what she had already stated in her screening interview. No good reason is given for this failure. Had she been asked the correct question, it is then most likely that Rule 34(1) would have been applied to her, namely, she would have been given a physical and mental examination by a medical practitioner within 24 hours of her admission to the detention centre.
32. There is nothing in the evidence to suggest that the Claimant was told that, by her expressing no wish to be examined medically, she was in fact jeopardising her position under Rule 34(1). In my view, given that she had already clearly stated that she was a victim of torture, that was a serious failure. It was incumbent on those handling her at the detention centre to be satisfied that she understood that if she did not consent to a medical examination her position under Rule 34(1) would be jeopardised for the simple reason that she would not be able to show any independent evidence corroborating allegations of torture and that therefore her detention was likely to be continued. Given that she had already stated that she was a victim of torture, the correct procedure was to make explicit to her that it was in her best interests to have a medical examination so that if her allegations were true there might well be some independent medical evidence corroborating her allegations. There is nothing to suggest that this was brought home to her at the relevant time, nor is there anything to suggest that after her asylum interview on 21 January 2008, when she repeated that she had been a victim of torture, the position under Rule 34 was reconsidered.
33. I therefore find that there was a conspicuous failure to apply Rule 34 in the case of the Claimant as that Rule was intended to apply, namely to ensure that those who were likely to be victims of torture were not held in detention.
34. The Defendant, however, contends that that is not the end of the matter. The Defendant contends that even if there had been a medical examination in accordance with Rule 34, nothing would have emerged that would have led to the Claimant's release. I reject that contention. There was before the Court a scarring report from the Helen Bamber Foundation. In that report there is reference to a 10cm area of hypopigmented scar tissue, in the following terms:

"This scar is typical of a whip injury resulting in superficial laceration of the skin. The scar is not deep indicating that the wound was superficial and there would have been no need for suturing of such a laceration. Ms T explains this scar results from being whipped whilst in detention in Uganda. She was able to describe a long black leather whip with only one tail. The scar is highly consistent with the account provided and I can see no other explanation for such injury. This area of the thigh is a site of non-accidental injury. I have considered other possible explanations of this scar but can find none."

35. There was a reference to another scar, as follows:

"…. She is absolutely clear and consistent in her account that she was beaten whilst in detention with blows and kicks and a whip. The scar is consistent with the account of being beaten diffusely and it is not surprising that the precise cause cannot be recalled."

36. All scars examined were well established scars, although it was not possible precisely to date them.
37. In my view, if a proper medical examination had taken place when it ought to have taken place those scars would have been visible and, taking account of the Claimant's allegations of torture/abuse, it was more probable than not that the Claimant would at that point have been released from detention. The position in this respect is no different from that in D & K and PB referred to earlier.
38. It therefore follows that, if the Defendant's policies had been properly implemented in this case, the Claimant ought to have been released shortly after 16 January 2008 when the medical examination should have occurred. Her release would not have been immediate because it would probably have taken the Defendant a few days in which to assess the relevant material leading to her release from detention.
39. Mr Johnson QC, who appeared for the Defendant, submitted that the failures to implement the relevant policy were "antecedent" or "collateral" and, therefore, following Lumba and Kambadzi, did not impact on the lawfulness of detention. This terminology is in fact not used by the Supreme Court in these cases. The correct test is that "the breach of public law must bear on and be relevant to the decision to detain" (Lord Dyson at 68, Lord Kerr at 240, and Lady Hale at 207) or "whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion … under the statute" (Lord Hope at 51).
40. For the reasons given in D & K and PB, the policy on medical examinations is closely related to the decision to detain because such examinations may well reveal independent, corroborating evidence that the person examined has been tortured and is not, therefore, generally suitable for detention. In any event, as noted earlier, Lady Hale expressly endorsed the decision in D & K that held that a failure to carry out a medical examination, when such examination would probably have led to the Claimant's release from detention, rendered the subsequent detention unlawful.
41. On that basis and allowing for a short time in which a putative decision on release would have been taken, the detention became unlawful shortly after 16 January 2008 until 19 March 2008 when the Claimant was released on AIT bail.

Breach of the Policy Regarding Trafficking

42. Strictly speaking, it is unnecessary to deal with this alleged infringement of the relevant policy. However, it does seem to me that on this aspect the Claimant faced a very formidable obstacle. The essence of the claim under this heading is that the Defendant ought to have appreciated that the Claimant was a victim, or potential victim, of trafficking. However, at the relevant time, the only evidence in support of that allegation was the Claimant's own account of how she had come to the United Kingdom and what had happened to her when she had arrived in the United Kingdom. Unfortunately, that account was intrinsically not credible, and it is difficult to fault the Defendant for not having proceeded to accept the account for the purposes of determining whether the Claimant was indeed a potential victim of trafficking. The fact remains that an Immigration Judge refused to accept that account, having heard the Claimant give it. That conclusion was upheld on review before both a Senior Immigration Judge and in the High Court. In those circumstances it does not seem right that fault should be imputed to the Defendant for any failure to appreciate at the relevant time that the Claimant might well have been a victim of trafficking.
43. As to the referral to the Poppy Project, the letter of 5 March 2008 from the Poppy Project was received on 11 March 2008. That letter needed to be considered by the Defendant, as it was considered. However, I do not believe that the Defendant acted inconsistently with any relevant policy, and unlawfully, in not immediately releasing the Claimant in response to the letter received on 11 March 2008. The assessment in the letter did no more than recite the account already given by the Claimant. That account was inherently incredible for the reasons given, and later upheld, by the Immigration Judge. The letter does not address the points made by the Immigration Judge, or seek to explain, by reference to any other facts or matters, why the Immigration Judge came to an erroneous conclusion. Notwithstanding the letter, the Defendant was, therefore, entitled to continue to act upon the judgment of the Immigration Judge that the Claimant's account of trafficking was not credible.
44. In any event, even if immediate attention had been given to the letter received on 11 March 2008 and even if the contents of that letter should have led the Defendant to release the Claimant from detention, that could only have occurred a very short time before the eventual release of the Claimant from detention. Therefore any element of unlawful detention would, even on this hypothesis, have been of extremely short duration.

Conclusion

45. However, for the reasons given I hold that there was a material failure to apply Rule 34 in this case and that that material failure led to a prolonged period of detention that should not have occurred and that was unlawful. I shall not at this stage make any finding as to the amount of damages that would be payable for this wrongful detention. I leave it to the parties in the first instance to seek to agree the appropriate amount of damages and in default of such agreement I shall myself assess them.
46. Finally, I should mention that judgment in this case was deferred until the Supreme Court had given judgment in Lumba and Kambadzi. Counsel then submitted further written submissions in the light of the Supreme Court decisions, for which I am most grateful.