England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/06/2014

Mrs Justice Carr :

Introduction

1. The Claimant, a national of Sri Lanka, challenges the lawfulness of his detention under the Immigration Act 1971 ("the Act") from 11^th July 2010 to 8^th October 2010 and seeks substantive damages accordingly. His claim was issued on 7th January 2011. It was stayed pending the service of amended grounds following the decision of the Supreme Court in Lumba v SSHD [2012] AC 245. Permission to apply was granted in September 2011.
2. The Claimant claims in summary :

a) that his detention was unlawful shortly after the point of detention on 11^th July 2010 : the Defendant did not carry out an appropriate medical examination within 24 hours. If the Defendant had carried out a medical examination it would have revealed evidence that the Claimant had been tortured and the Claimant would have been released;

b) alternatively, that his detention was unlawful after his first claim for judicial review of the Defendant's refusal to treat him as making a fresh claim ("the first JR claim"). That claim was issued on 10^th September 2010. From then on the Claimant's removal was no longer achievable within a reasonable period and detention was in breach of the principles established in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. Moreover, by then, the Defendant had obtained independent evidence that the Claimant had been tortured.

The Facts

3. It is necessary to set out the facts in some detail. The Claimant is a national of Sri Lanka born on 3rd July 1982. In 2005 he applied for entry clearance in this country as a student, which application was refused. A subsequent appeal was dismissed in 2006.
4. The Claimant alleges that he arrived in the United Kingdom on 16th October 2008. He did so with the assistance of a fraudulently obtained passport. He arrived via France but did not make an asylum application there. Nor did he make an asylum claim on arrival in this country but rather a few days later, namely on 20th October 2008.
5. The Claimant was interviewed for asylum purposes on 6th November 2008. In that interview he claimed to have been in detention and the victim of torture (including being beaten, burned with cigarettes and raped) in Sri Lanka. He identified the following periods of detention :

a) June 2004 to March 2005;

b) 3 to 4 days in April 2005;

c) August 2005 to September 2008.

He showed a number of scars to the interviewing officer.

6. On 14th November 2008 the Defendant refused his asylum claim by a long and detailed letter. The Claimant's accounts were viewed as inconsistent and lacking credibility. It was not accepted that the Claimant had faced previous persecution at the hands of the Sri Lankan authorities or the Liberation Tigers of Tamil Eelam ("the LTTE"), nor was it accepted that he would come to the adverse attention of either on return. His account of having assisted the LTTE by carrying parcels between 2002 and 2004 was not accepted. Nor was it accepted that he had come to the attention of the authorities as a result. It was not accepted that he had been arrested in connection with the murder of CID officers, nor that he was imprisoned, nor that he had come to the adverse attention of the authorities as a result.
7. The Claimant appealed the decision to refuse him asylum with the assistance of legal representation. His appeal was rejected by Immigration Judge Strowger in a determination promulgated on 10th January 2009. The appeal was refused on asylum, human rights and humanitarian protection grounds. The Immigration Judge did not accept that the Claimant was telling the truth and did not accept the Claimant's accounts of events in Sri Lanka. He was not found "to be at all credible in his story". It was noted that the Claimant claimed to have scarring from cigarette burns inflicted in detention, but noted that no medical or photograph evidence had been adduced and that he, the judge, had not been shown any scars. The Immigration Judge likewise held that if there were any such scars they did not in themselves give rise to risk. He found the Claimant not to be at risk on return to Sri Lanka and dismissed his appeal.
8. Applications for re-consideration of that determination were unsuccessful. An application for statutory review was rejected by this Court on 11^th May 2009. The Claimant was appeal rights exhausted by 21st May 2009.
9. In the meantime, on 10 December 2008 the Medical Foundation for the Care of Victims of Torture ("MF") had written to the Claimant inviting him to attend later that month for an assessment to see how MF could assist him. On 8th June 2009 MF wrote to the Claimant informing him that he had been accepted for treatment and referring him to its Tamil group.
10. On 25^th June 2009 the Claimant's solicitors wrote with further submissions to the Defendant, enclosing the letter from MF of 8^th June 2009. Shortly after this, in about August 2009, the Claimant absconded, breaching his monthly reporting obligations.
11. On 11^th July 2010, however, he was encountered by chance in Norfolk. He was arrested and detained by the Immigration Service on 11th July 2010, being treated (rightly) as an absconder.
12. On the same day he was taken to Oakington IRC. An initial screening assessment was carried out. The heading to the assessment document read :

"It is very important that you assist us in completion with this assessment form to enable us to provide for your health needs whilst you are at Oakington IRC. The information provided will be completely confidential and not disclosed without your written consent."

13. The assessment recorded that the Claimant did not wish to make an allegation that he had been tortured prior to coming to the UK. The question posed was :

"Do you wish to make an allegation that you have been tortured prior to coming to the UK?"

The box "No" was then ticked.

14. The Claimant was also seen at a medical clinic at Oakington IRC on 11th July 2010 as 2300 hours. There is a full entry which records the Claimant's weight, temperature, blood pressure and pulse, amongst other things, and also the fact that the Claimant was "for review with GP in the am".
15. At 1125 hours the next day there is the following entry in the Claimant's medical records, just below the entry the evening before, as follows :

"Feels anxious & stressed. Some feeling of nausea. Possible has haemorrhoids and constipation. Awaiting results of ? scan. X-ray. Adv. To be reviewed 2/7 following R & R. To sign consent for records"

The signature to these notes is illegible.

16. A detention review was carried out then and on 18th July 2010. On 20th July 2010 a request for temporary admission was made on behalf of the Claimant. On 23rd July 2010 the Defendant responded to that request upholding the decision to detain at that time. In relation to the suggestion of a fresh application and referral to a psychologist because of mental health issues, the Defendant stated that the Claimant had produced no evidence to prove that he had a mental health condition. The Claimant's detention was further reviewed on 25th July 2010.
17. On 29th July 2010 a fresh application for asylum was served by the Claimant's solicitors. It was alleged that the Claimant was suffering from mental health difficulties and indicated (in draft only) that an unidentified expert had been instructed to prepare a report. There was no mention of the Claimant's involvement with MF.
18. On 30th July 2010 the Claimant was seen by the healthcare team. No allegation of torture was made. An application for bail was submitted to the First Tier Tribunal and rejected on 6^th August 2010 on the basis of the risk of absconding.
19. A further detention review took place on 1st August 2010. On 2nd August 2010, in response to the Claimant's solicitor's application of 29^th July 2010, the Defendant wrote asking for medical evidence to ensure that the Claimant received appropriate care and consideration. She also suggested obtaining the Claimant's consent for access to his medical records.
20. The Claimant was seen by the healthcare team again on 8^th August 2010, with no mention of torture. A monthly progress report was compiled on the same day. Further detention reviews were carried out on 8th and 15th August 2010. The Claimant was seen again by the healthcare team on 10^th, 12^th, 13^th, 15th and 16^th August 2010, with no mention of torture.
21. On 16^th August 2010 the Defendant sent a chasing facsimile to the Claimant's solicitors in relation to the medical evidence. The Defendant warned that if no report was forthcoming a decision would be made on the basis of the information available. On the same day the Claimant's solicitors informed the Defendant that a medical appointment had been made for him for 13th September 2010. A request for temporary admission was made. That was rejected on 20^th August 2010 in the absence of evidence of mental health difficulties and in the light of the Claimant's previous absconding.
22. On 16^th August 2010 the Defendant also wrote to MF asking for confirmation of the authenticity of MF's letter of 8^th June 2009. On 18^th August 2010 MF informed the Defendant that it was unable for reasons of confidentiality to liaise about confidential clinical treatment. The Defendant pressed MF, requesting simply confirmation of whether the document was genuine. Again MF declined to respond on the grounds of confidentiality.
23. A further detention review was carried out on 22nd August 2010. The Claimant was also seen by the healthcare team, with no allegation of torture.
24. On 23rd August 2010 the Defendant rejected the Claimant's further submissions in a lengthy and detailed letter, declining to treat them as a fresh claim. Adverse comment was made about the Claimant's credibility and challenge on mental health grounds by reference to the fact that the Claimant had attended the British High Commission on 15^th February 2005, at a time when he was alleging that he was in detention. The fact that there was no supporting evidence of mental health problems was also relied upon.
25. The Claimant was seen by the healthcare team on 24^th August 2010. On this occasion the Claimant was noted as saying that certain pains were "from beatings by army in Sri Lanka".
26. On 27th August 2010 removal directions were set for 10 September 2010. Further detention reviews took place on 29th August and 5th and 7th September 2010. The Claimant was seen again by the healthcare team on 30^th August and 2^nd and 6^th September 2010, with no mention of torture. A monthly progress report was compiled on 7^th September 2010.
27. On 8th September 2010 the Claimant was seen again by the healthcare team. A report was completed on that day for the purposes of Rule 35 of the Detention Centre Rules (2001) ("rule 35") ("the DCR") stating that the Claimant had been seen by MF ("the rule 35 report"). The rule 35 report recorded the following:

"[The Claimant] was arrested by CID in 2004, 2005 and 2008. In 2008 [the Claimant] was in prison serving 3 yrs for supporting LTTE. During this time [the Claimant] states he was suspended by handcuffs, burned by cigarettes and hit with cricket stumps. They threatened to kill him; given only limited sustenance and dirty water once a day only. Denied medical attention. [The Claimant] was also subjected to sexual torture; beaten with a gun to his buttocks and multiply raped.

[The Claimant] showed me multiple circular scars to his arms and legs. Linear scars to knees."

28. On 10^th September 2010, having fully considered the rule 35 report, the Defendant maintained detention.
29. In the early hours of 9^th September 2010 the Claimant's solicitors sent a "letter before claim" to the Defendant enclosing fresh evidence, including the rule 35 report and a letter from MF dated 8th September 2010 confirming that in fact the Claimant had been assessed on 19th December 2008 and on 5th February 2009 and that he had been accepted for treatment. MF confirmed that no medico legal report had ever been requested, but that it could and would produce one if so instructed. The Claimant's solicitors asked the Defendant to accept either a) that the fresh evidence should entitle the Claimant to be treated as making a fresh claim for asylum or b) the Claimant's removal should be deferred until a proper assessment had been made of the Claimant's claims to have been tortured. They invited a response by 2 p.m. on the same day.
30. On 10th September 2010 the Defendant responded refusing those submissions, again in a lengthy and detailed letter. Reference was made to the Immigration Judge's findings and to the continuing absence of any medical evidence to support the claims of mental health problems.
31. The Claimant was transferred to Colnbrook IRC to effect removal. When screened on arrival he indicated that he had not been the victim of torture.
32. On the same day the Claimant issued the first JR claim. The removal directions set for that same day were cancelled accordingly.
33. The statement of grounds and facts attached to the claim form began by way of summary of the basis of claim:

"1.The Claimant seeks judicial review of the refusal of the Defendant to treat him as having made a fresh asylum claim and/or a fresh human rights' claim for the purposes of paragraph 353 of the Immigration Rules.

2. Additionally or alternatively, he seeks judicial review of the decision of the Defendant to remove him on 10 September 2010 in circumstances where there has been no proper medical evaluation of his repeated and consistent claims to have been tortured and raped."

The statement also included reference to an appointment being offered by MF to the Claimant for 6^th October 2010.

34. Detention was reviewed on 12^th September 2010. The record of decision states :

"JR application received on 10/9/10 and RDs were deferred. Detention remains appropriate to try and expedite JR."

35. On 14^th September 2010 the Claimant's application for temporary admission was refused. He was transferred to Lindholme IRC. When screened on arrival he made allegations of past torture.
36. The Claimant made a fresh bail application to the First Tier Tribunal on 15^th September 2010. A further request for temporary admission was also made and refused on 17^th September 2010. The rejection stated :

"….given that your client's case is receiving urgent attention in respect of the Judicial Review and that your client previously failed to report when required to do so, it is not considered appropriate to release your client at this time. It is also noted that your client has a bail hearing scheduled for 23^rd September 2010."

37. Detention was reviewed on 19^th September 2010. The notes record :

"As previous. MP intervention and requests for bail. Hearing scheduled for 23.9.10. Detention to be maintained."

38. On 20^th September 2010 Annex A of a rule 35 report was completed by a reception nurse at Lindholme IRC. On 21^st September 2010 Lindholme IRC advised the Defendant that no further information had been provided by the Claimant in relation to his allegation of torture and that that the Annex had been completed and signed solely to allow the Defendant access to the Claimant's medical records.
39. On 23^rd September 2010 detention was reviewed and maintained. The notes record :

"Bail outcome expected tomorrow. [Claimant] is fit and well with no mitigating circs to preclude detention. No evidence of torture received. Subject has an appalling immigration history, including entering illegally and absconding. Subject has been in the UK since 2008 and has only obtained a MF appointment. Continued detention deemed appropriate."

40. In fact that bail hearing took place on the same day. Bail was refused. The Judge was not prepared to speculate on the outcome of the first JR claim. The undisputed facts were that the Claimant was granted temporary admission on conditions of reporting and residence, both of which he broke. But for his arrest in July 2010 he might well still have been at large.
41. On 24^th September 2010 the Claimant's solicitors made another request for temporary admission. The Defendant responded, indicating that the request was under consideration.
42. On 24^th September 2010 the Defendant sought medical details about the Claimant from Lindholme IRC, and on 26^th September 2010 medical records were received.
43. On 26^th September 2010 detention was reviewed and maintained. The notes state :

"…decision as to w[h]ether case is to be expedited will be made this week….Detention remains appropriate to expedite JR."

44. On 29^th September 2010 the Defendant refused temporary admission in a full and reasoned letter. Reliance was placed on the Immigration Judge's findings, on the Claimant's answer in relation to torture on screening on 11^th July 2010, on the absence of evidence of torture, on the availability of appropriate facilities and on the Claimant's immigration history.
45. On 30^th September 2010 the Defendant filed an Acknowledgement of Service and proposed a stay until after the Claimant's appointment with MF on 6^th October 2010. The Claimant agreed to a stay.
46. Detention was reviewed on 3^rd October 2010 and maintained. The notes record that temporary release "would not be ordered until a medical report had been received from [MF]."
47. The Claimant's appointment with MF on 6^th October 2010 did not take place, due to administrative error or misunderstanding. In circumstances where the date of a new appointment was not known, the Defendant then released the Claimant on 7^th October 2010 with reporting and residence conditions.
48. On 23^rd November 2010 by consent the first JR claim was withdrawn upon the Defendant agreed to reconsider the Claimant's submissions.
49. As stated above, the present claim was issued on 7^th January 2011.
50. No medical evidence had been received by the Defendant by then. Indeed, the only medical evidence available is a report from Dr Sanmugan Jegarajah MBBS DTCD FRCP (Lon) dated 17^th September 2012. This is based on 4 examinations of the Claimant between 3^rd December 2010 and 14^th March 2011. It does not appear to have reached the Defendant until March 2014, although it may have been sent to UKBA on 1^st October 2012.
51. Dr Jegarajah noted 24 scars or clusters of scars. Amongst other things, he opined that some are highly consistent with and some typical of being hit with a cricket stump. Some are diagnostic of or highly consistent with ligature marks from restraint during torture. Some have the classic appearance of cigarette burns. Some marks he found more likely to be self harm. Dr Jegarajah concluded that the Claimant is suffering from a depressive illness with features of anxiety and post traumatic stress disorder. Based on his findings, he stated that he had no reason to doubt the Claimant's claimed history of torture.

The Law

Power to detain

52. The power to detain an illegal entrant such as the Claimant derives directly from the power to remove him or her from the United Kingdom.
53. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 provides a power of detention pending administrative removal as follows:

"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 or 12 to 14, 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."

54. It is clear that the power to detain in such circumstances is subject to limitations. The starting point is Hardial Singh (supra). There Woolf J held (at 706):

"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the Claimant is being detained…pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

55. A breach of the Hardial Singh principles would render detention unlawful both at common law and under Article 5 of the ECHR: see the judgment of Laws LJ in SK (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ. 12304 at 22, 33). The exercise of the statutory power is not subject to compliance with the Detention Centre Rules 2001 ("the DCR") and/or the Defendant's policy. However, such compliance will generally ensure compatibility with the Hardial Singh principles.
56. The Hardial Singh principles were restated by Dyson LJ in R(I) v Secretary of State for the Home Department [2003] INLR 197 at paragraphs 46-48:

"46. There is no dispute as the principles that fall to be applied in the present case. They were stated by Woolf J in Hardial Singh … in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment, Mr Robb correctly submitted that the following four principles emerge:

i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

57. As is apparent from the above, the power to detain is of course also circumscribed by Article 5 of the ECHR, which provides, so far as material:

'Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law […].'

There then follows a list of permitted exceptions, of which the last one is:

'f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition'.

58. The aim of Article 5 is 'to ensure that no one should be dispossessed of [their] liberty in an arbitrary fashion': Engel v Netherlands (1976) 1 EHRR 647 at 58; 'no detention that is arbitrary can ever be regarded as "lawful"': Winterwerp v Netherlands [1979] 2 EHRR 287 at paragraph 39.
59. The general limits of the exercise of the statutory power to detain were also considered by the Court of Appeal in R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804. There it was held that :

a) The power to detain may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case (see paragraph 43);

b) Where there is a risk of absconding and a refusal to accept voluntary repatriation "those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention". The risk of absconding "is important because it threatens to defeat the purpose for which the deportation order was made" (see paragraph 54). The "risk of absconding is a matter of the greatest importance, since if the person in question were to abscond and it were to prove difficult to trace him, the whole purpose of the deportation order would be frustrated" (see paragraph 77).

60. In Abdi v Secretary of State for the Home Department [2009] EWHC 1324 (Admin) ("Abdi 2"), Davis J, whilst not accepting that it was invariably correct to exclude as a relevant consideration (in assessing the overall reasonableness of detention) any period when the individual is pursuing a claim or appeal, held that "generally" it would be correct to do so (at paragraph 31). He accepted that (at paragraph 36):

"…the act that a period of detention occurs whilst the applicant is pursuing an appeal or comparable judicial process will be a highly relevant factor: commonly, no doubt, in cases where there is also a risk of absconding and/or of reoffending, it may be a decisive one where the only operative bar to removal is pursuit of the very appeal process. Thus it is most certainly one of the matters, and a very important one, to be taken into account in deciding on the reasonableness of detention."

Detention of torture victims

61. The Defendant's policy on the exercise of the power to detain can be found in the Defendant's Enforcement Instructions and Guidance manual (the "EIG"). Chapter 55.3.1 states that a relevant factor that must be taken into account when considering the need for initial or continued detention is whether or not the subject has a history of torture. At paragraph 55.10 it is stated that "those where there is independent evidence that they have been tortured" are included in the categories of persons "normally considered for detention in only very exceptional circumstances". The underlying rationale for this approach may be said to be that "those who have suffered in the past are disproportionately adversely affected by detention" (see R (EO and others) v SSHD [2013] EWHC 1236 (Admin) at paragraph 59).
62. "Independent evidence" of torture is not the same as proof of the same (see R (AM) v SSHD [2012] EWCA Civ 521 at paragraphs 29-30 and EO ...supra) at paragraph 68. What is required is "necessarily something beyond the say so of the person concerned".
63. In EO (supra) Burnett J went on (at paragraph 69) to say :

"69…….The policy gives some help with what may inform whether there are very exceptional circumstances. It refers to the need to weigh risks to the public of releasing convicted offenders with particular care. A very high, rather than routine, risk that the detainee will abscond might well also provide a proper basis for maintaining detention. The rubric is such that a host of factors may come into play. It was not suggested by the Claimants in these cases that credibility is an irrelevant consideration in determining this question. In my judgment, the credibility of a detainee may be a factor which informs the question whether there are very exceptional circumstances for maintaining detention. Doubts about the credibility of the detainee would not be sufficient – that is commonplace. Acting on doubts would be tantamount to requiring the detainee to prove that the allegation of torture was true. The policy does not require that. However, there may be cases in which information available to the decision maker leads him to the firm conclusion that the torture claim is untrue, that is to say incredible or very unlikely to be true. It would be a perverse application of the policy to require the Secretary of State to release from custody someone in respect of whom there exists independent evidence of torture but also where it is clear that the claim is untrue. The policy does not require that. However, it should not be overlooked that the fact that a person is in detention in the first place will often have followed, or be associated with, a conclusion that an underlying claim has little or no substance. The fact that a person is in detention will usually suggest that an assessment has been made that there is a risk of absconding, or a risk of offending or some threat to the public. The policy assumes that these facts, presenting in a way which would ordinarily justify detention, are not without more sufficient to do so when there is independent evidence of torture."

64. In R (Anam) v SSHD [2009] EWHC 2496 (Admin) Cranston J also referred (at paragraph 68) to the strong presumption in favour of release where someone fell within the categories of those not normally considered suitable to detention. The balance of other factors has to be substantial then to justify detention. There would need to be an elevated risk of absconding and re-offending.
65. An important part of the policy of not detaining those where there is independent evidence of torture is the DCR, made pursuant to s.153 of the Immigration and Asylum Act 1999. In R (D & K) v SSHD [2006] EWHC 980 (Admin) Davis J stated (at paragraphs 50 to 53) that the purpose of the DCR was to ensure that potential torture victims were not held unnecessarily in detention. In EO (supra) Burnett J stated (at paragraph 59) that the DCR were "important features in a process which is designed to ensure that [the Defendant's] case workers are provided with material upon which to consider the policy relating to torture". In R (RT) v SSHD [2011] EWHC 1792 (Admin) Kenneth Parker J stated that the purpose of a rule 34 examination (referred to below) was "to ensure that those who were likely to be victims of torture were not held in detention".
66. Albeit in the context of the mentally ill, the Court of Appeal in R (Das) v SSHD [2014] EWCA Civ 45 upheld the view of Sales J at first instance that the Defendant was "under a public law obligation to take reasonable steps to give practical effect" to the policy of not detaining mentally ill people. Beatson LJ (at paragraph 70) referred to the requirement on the Defendant "conscientiously to make reasonable inquiries as to the physical and mental health of the person who is being considered for detention". In D & K (supra) Davis J referred to an obligation on the detaining authorities "to provide the medical attendance which may in turn, in some cases, lead to a report capable of being independent evidence of torture." In RT (supra) it was held that it was incumbent on those handling the Claimant to be satisfied that, when not consenting to a medical examination, she understood the consequences of such refusal.
67. The DCR provide as follows, so far as material,:

'Rule 33 – Medical Practitioner and Health Care Team

'(1)Every detention centre shall have a medical practitioner who shall be vocationally trained as a general practitioner […].

(2)Every detention centre shall have a healthcare team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at the centre. […]

'Rule 34- Medical examination upon admission and thereafter

'(1)Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner [at the person's request]) 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.

'Rule 35 – Special illnesses and conditions (including torture claims)

'(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.

'(2)The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

'(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.'

68. Reference is also made to Detention Service Order 03/2008 headed "Special Illnesses and Conditions (including torture claims)". Amongst other things, the Order provides internal guidance to the Defendant's caseworkers and case owners on dealing with rule 35 reports. It reads so far as material as follows :

'3 Background

'Under Rule 35 of the Detention Centre Rules 2001, healthcare teams at Immigration Removal Centres (IRCs) who have concerns that a detained person has a special illness or condition or may have been a victim of torture, are required to report such cases to the centre manager. These reports are then passed via the United Kingdom Border Agency teams at the IRCs, to the office responsible for managing and/or reviewing the individual's detention and to the casework unit/case owner dealing with the individual's substantive case. […]

'The principal purpose for generating such reports is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing that person's detention. The information contained in such reports will need to be considered in deciding whether continued detention is appropriate, and may also need to be considered in relation to its possible impact on the prospects for removal. It is also important that due consideration is given to these reports in connection with considering the substantive asylum and Human Rights Act application.

'For the purpose of this instruction an allegation or claim of torture is defined as any act of torture which occurred outside of the United Kingdom. [emphasis original]

'4.Receipts of Reports of Special Illnesses and Conditions (Including Torture Claims): Detention Review

'4.0.1 Action to be Taken by Healthcare Teams Based at Detention Centres

'On receipt of a report from a detainee or where the terms of Rule 35 (1) to (3) are met the medical practitioner must:

'? Make a report of the claim;

'? Immediately inform the UK Border Agency Contact Management Teams based at the Immigration Removal Centre….."

The correct approach in unlawful detention and damages claims

69. In Lumba v SSHD (supra) (also reported sub nom WL (Congo) v SSHD) the Supreme Court considered the question of the effect of an unlawful decision on the lawfulness of consequent detention. Of the issues identified by Lord Dyson SCJ at 10, (ii) and (iii) are directly relevant here:

'(ii) If unlawful policies were applied to the appellants, was their detention unlawful in consequence…?

'(iii) If their detention was unlawful, are the appellants entitled to more than nominal damages…?'

70. The fundamental principles confirmed by the decisions of the majority in Lumba (supra) are as follows :

a) False imprisonment is a trespassory tort, actionable per se regardless of whether the victim suffers harm: paragraph 64;

b) A decision to detain is unlawful if it is made in breach of public law principles, as long as the breach is material to the decision: paragraphs 66, 88, 207;

c) It is no defence for the Defendant to say that the detention would have been maintained if a lawful decision had been made, although if that is established, it may well affect the level of damages: see in particular Lord Dyson SCJ at paragraph 71:

'71. I can see that at first sight it might seem counter-intuitive to hold that the tort of false imprisonment is committed by the unlawful exercise of the power to detain in circumstances where it is certain that the Claimant could and would have been detained if the power had been exercised lawfully. But the ingredients of the tort are clear. There must be a detention and the absence of lawful authority to justify it. Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.'

d) Thus if a person would inevitably have been detained even without the error of law, they are not entitled to substantial damages: paragraphs 90, 169.

71. Accordingly in each case (before a declaration of unlawful detention and an order for damages can be made), an inquiry has to be made as to what caused the Claimant to be detained and whether in fact he would have been detained in any event. Once the Claimant establishes direct and intentional detention, which is of course not in dispute in cases such as these, the burden of proof shifts to the Defendant to show that there was a lawful justification (see for example paragraphs 65 and 88 of Lumba (supra). (This may not mean that the Defendant necessarily bears the burden of proving something merely because the Claimant raises an argument on a particular point.) And on the inquiry into damages, it is for the Defendant to establish that lawful detention would in any event still have taken place on the balance of probabilities. The question of whether the Claimant could have been lawfully detained is a matter of legal assessment.

The Issues

72. There are three central issues for my determination :

a) whether or not the Claimant's detention was unlawful from shortly after the point where he was detained "because the [Defendant] failed to carry out a medical examination for [the] purposes of rules 34 and 35 of the [DCR]" (see paragraph 89 of the Amended Statement of Grounds);

b) if unlawful, whether or not the Claimant could and would have been lawfully detained in any event? If so, the Claimant is only entitled to nominal damages;

c) (separately) whether or not the Claimant's detention after 10^th September 2010 was unlawful by reason of his removal being no longer imminent or achievable within a reasonable period once the first JR claim had been issued (see paragraph 111 of the Amended Statement of Grounds)?

The Claimant's initial detention

73. The Claimant raises two challenges to his detention from 12^th July 2010 onwards : first, that the Claimant was not seen by a general practitioner ("GP") as required by rule 34 of the DCR; secondly, that if the Claimant was seen by a GP, then he was not given a physical and mental examination as required by rule 34 of the DCR.
74. The Defendant has not been able to identify the precise medical personnel who saw the Claimant on 12^th July 2010. Oakington IRC closed on 12^th November 2010.
75. However, in my judgment it is (highly) probable that it was a GP who saw the Claimant on 12^th July 2010. The Claimant had been seen by a nurse on detention on 11^th July 2010. The notes made at that time refer to the Claimant being due for review with a GP in the morning. The Claimant was then seen in the morning at 1125 hours. Not only was it expressly anticipated on 11^th July 2010 that a GP was to see the Claimant, to be seen by a GP was a standard requirement under rule 34 of the DCR. The notes are also consistent with having been made by a doctor. As it was put in oral submission (in fact by counsel for the Claimant), they are "typical doctor's" notes. It is also to be noted that in the letter before claim of 8^th September 2010 written by the Claimant's solicitors it was stated that the Claimant had been seen by a doctor at Oakington IRC on numerous occasions.
76. The second challenge also fails. The GP would have known what function he or she was performing (under rule 34) and would have examined the Claimant as required. The extent of physical and mental examination, and the extent of the records of such examination, was a matter for his or her judgment. It can be expected that a medical practitioner performing a rule 34 review will carry out such review to the level and extent necessary. Finally, there is no evidence from the Claimant to suggest that he was not examined.
77. It is in these circumstances that the Claimant went on in submission to advance, if not an unpleaded, then certainly an unparticularised case that, even if the Claimant was examined by a GP on 12^th July 2010, the Defendant nevertheless failed to discharge her public law duties. Reliance is placed on the Das (supra) line of authorities referred to above. In the broadest of terms it is said for the Claimant that the Defendant failed to take reasonable steps to investigate the possibility that the Claimant was a torture victim. It was said in oral submission that "the mechanisms designed to prevent the detention of torture victims other than in exceptional circumstances failed to work."
78. In terms of descending to any detail the Claimant submitted that he should have been asked (by the GP) expressly whether he had been tortured, or should have been examined to see if that was the case. The Claimant suggests that the fact that the Claimant later volunteered that he had been tortured (on 8^th September 2010) demonstrates that he was not asked about torture on 12^th July 2010. The Defendant erred in failing to make the GP aware of the fact that the Claimant had made allegations of torture at interview in asylum interview or that MF had accepted the Claimant for treatment. The end result, submits the Claimant, would have been a report (presumably during the relevant period) along the lines of that produced in 2012 by Dr Jegarajah.
79. The Defendant submitted that the line of reasoning identified in Das (supra) is of no application to the facts here. Das was a case dealing with serious mental illness, where there is a greater degree of judgment involved than with torture cases, and the principles there established concern exclusively mental health cases. Torture, by contrast, is a hard-edged question where "independent evidence" is required.
80. I doubt that there is a distinction in policy approach to be drawn as suggested by the Defendant. What is relevant, however, is to apply policy to the individual facts of each case. The fact that independent evidence of torture is required for a person to fall within the category of protected person identified in chapter 55.10 of the EIG is a material consideration. And the facts of the present case are far removed from those in Das where officials knew of the existence of a psychiatric report but failed to obtain a copy when they could and should have done. Moreover, when it was received, they failed to pass it on appropriately.
81. I do not accept the Claimant's submissions on the facts for a number of reasons. First, as to the GP's examination, the allegation is essentially one of incompetence on the part of the GP and falls foul of EO (supra). As Burnett J said there:

"59. It is desirable that those conducting medical examinations have wide experience as general practitioners including experience of mental health. It is desirable that those conducting medical examinations have experience of dealing with victims of torture and other inhuman and degrading treatment. It is desirable that if there are physical signs which provide independent evidence to support an allegation of torture they are picked up as early as possible….However, in my judgment it is a mistake to conflate what is desirable with what is required by the policy operated by the Secretary of State in this area. The policy of the Secretary of the State at the time (and for that matter rule 35 itself) did not implicitly require the medical practitioner to provide any particular detail in his report or to have any particular specialist skill beyond that required by the 2001 Rules……….there is no failure by the Secretary of State to comply with her policy were a medical practitioner to miss signs of torture even if, for the sake of argument, a claim could show that the failure was negligent in the Bolam sense : Bolam v Friern Hospital Management Committee [1957] 1 WLR 582."

82. Secondly and in any event, the Claimant had been asked expressly about the possibility of being a torture victim on the preceding day. He stated that he did not wish to make an allegation of torture prior to coming to the UK. This was clear and recorded on the initial screening assessment which would have been available to the GP. There was no sufficient reason for the GP (or anyone else) to go behind that answer.
83. The Claimant submitted that it was not reasonable to rely on the answer on the initial screening assessment form in relation to torture because the heading to the form refers to the purpose of provision of the information being for the Claimant's health (and nothing else). Thus the Claimant was not making an informed decision, knowing the consequence, when he gave the (negative) answer that he did. Reliance is placed on RT (supra).
84. Again, there is no evidence from the Claimant as to what was said to him or what was his understanding of the purpose of the question posed to him on 11^th July 2010. But in any event, the submission is in my judgment an unreal and wholly artificial one. It was a simple question. There would be no reason for the Claimant not to answer in the affirmative if he wished to assert that he was a victim of torture (for any reason). Moreover, for this argument to be sustained, the Claimant would have to posit that his suffering and experiences as a torture victim had no relevance to his current mental or physical health. That is not his case.
85. Thirdly, it cannot be said what the Claimant was and was not asked about torture on 12^th July 2010. No material weight is to be attached to the fact that he did not (apparently) mention torture on 12^th July 2010. It is consistent with his answer on 11^th July 2010, and with his failure to make allegations of torture on the very many (13 or so) subsequent occasions when he was seen by the healthcare team at Oakington IRC. On 24^th August 2010 he did refer to beating but no more and then not in any detail. When the Claimant made the allegations that he did on 8^th September 2010, there had been a material change in circumstance, namely the fact that he was by then due to be deported within the next 48 hours.
86. Fourthly, the allegations of torture made by the Claimant in asylum interview had been considered fully and rejected by an independent Immigration Judge. As for the information from MF, this did not reveal any particulars of what concerns MF may have had or on what information any such concerns were based. Without such details, it is difficult to see how it could amount to "independent evidence" for the purpose of chapter 55.10 of EIG. Moreover, the Defendant was (reasonably) exploring the authenticity of that information in any event into August 2010 and beyond.
87. In my judgment, in all the circumstances, it cannot be said that the Defendant failed in her public law duties in failing to take reasonable steps to give practical effect to the policy of preventing the detention of torture victims other than in exceptional circumstances.
88. Finally and for the sake of completeness, I record a further alternative submission made on behalf of the Claimant, namely that the Defendant failed to respond adequately to the rule 35 report. This would lead to a claim for damages for unlawful detention from some point after 8^th September 2010.
89. There is nothing in this point either. First, the rule 35 report contained no more than the Claimant's assertion of events, and a record of the presence of scars. It cannot be said to have amounted to independent evidence of torture. Secondly, as at 8^th September 2010 the Claimant's removal was imminent. Thirdly, upon the Claimant being moved to Colnbrook IRC on 10^th September 2010, the Claimant again denied ever being the victim of torture. Finally and in any event, by this stage the Defendant was in correspondence with the Claimant's solicitors, reasonably requesting further material and evidence in support of the Claimant's allegations, as set out in the factual narrative above. So, for example, the Claimant's solicitors had indicated that the Claimant had a medical appointment on 13^th September 2010. Events were also being overtaken by the issue of the first JR claim and for example the Claimant's bail application to the First Tier Tribunal to be heard on 23^rd September 2010.

Nominal or substantive damages

90. In the light of my finding on the first issue, the question of whether or not the Claimant is entitled to nominal or substantive damages does not arise. However I address it for the sake of completeness.
91. Were I to be wrong in my conclusion above and the Claimant was not examined by a GP on 12^th July 2010 (or there was some other investigative failure meaning that a report such as that of the rule 35 report was not produced at that time and not later in September 2010), I would conclude that the Claimant could and would on a balance of probabilities have continued to be detained lawfully in any event.
92. First, I am not satisfied that a different rule 34 examination by a GP on 12^th July 2010 (questioning the Claimant about torture or not) would probably have produced a rule 35 report. The Claimant knew that his allegations of torture had been rejected roundly by the UK courts. He did not raise the allegations when examined by a nurse on 11^th July 2010 and expressly asked about torture. He did not raise the allegation on 12^th July 2010. It is notable that he also did not make any allegation of torture on 13 occasions between 30^th July and 6^th September 2010, with the exception of the comment on 24^th August 2010. On 10^th September 2010 on transfer to Colnbrook IRC he is recorded as stating that that he had not been tortured.
93. In any event, the rule 35 report did not constitute independent evidence of torture. It recorded the Claimant's assertions of torture and the presence of multiple small circular scars to his arms and legs and linear scars to his knees. No medical opinion as to, let alone support for, the veracity of the Claimant's assertions or of any connection between the scars and his assertions was expressed. It was no more than the Claimant's say-so. Whilst the maker of a rule 35 report is not obliged to express an opinion and such a report is "at least capable of constituting independent evidence" (see D & K) (supra) at paragraphs 116 to 118), this report did not go further in effect than recording the Claimant's assertions. As was submitted for the Defendant, if the rule 35 report is to be treated as constituting independent evidence, every detainee who merely asserts torture and shows some scars will be entitled to release absent very exceptional circumstances. Thus the Claimant did not fall within the category of persons considered unsuitable for detention in chapter 55.10 of the EIG.
94. Moreover, the Claimant's allegations of torture had been considered fully previously by the Defendant, and rejected, and by the Immigration Tribunal, and again rejected in clear and compelling terms. The Defendant was entitled to have not just "commonplace" doubts about the Claimant's credibility on the facts of this case but rather to reach the firm conclusion that the torture claim was untrue, that is to say incredible, or very unlikely to be true. An example is the fact that it is a matter of record that the Claimant visited the British High Commission during a period when he alleged that he was incarcerated. This was not something that he had ever volunteered. When confronted with the problem by the Defendant, he stated for the first time on 9^th September 2010 that he, with the help of his brother-in-law, had managed to bribe his way out of prison ostensibly for medical treatment in February 2005. He then in fact visited the High Commission. The Claimant suggests that, when considering the evidence recorded for example in GJ and others v SSHD [2013] UKUT 00319 (IAC) in relation to the prevalence of bribery and corruption in Sri Lanka, what he says is not at all fanciful. But, as the Defendant points out, even if that were the case, it begs the question why the Claimant would have returned voluntarily to his alleged torturers.
95. Thus, even if there were independent evidence of torture, and exceptional circumstances for detention were needed, these would be such, particularly coupled with the Claimant's immigration history and risk of absconding. The risk of absconding was very high, not simply routine. The Claimant had been at large unlawfully for some 10 months and was then only encountered by chance.
96. This conclusion is supported by the evidence of Linda Thompson in a witness statement dated 27^th November 2013. She is a chief immigration officer within UKBA, a position she has held since October 2009. She was responsible for authorising the Claimant's detention between 11^th July and 8^th October 2010. She states that, had the rule 35 report been produced shortly after the Claimant's initial detention, rather than on 8^th September 2010, she would have continued to authorise detention. She would not have considered the rule 35 report to constitute independent evidence. The Claimant's allegations of torture had been rejected by the Immigration Tribunal. The Claimant's removal was likely to be imminent. All that stood in the way was the need to respond to further submissions on file and the obtaining of an emergency travel document. "Most important", she says, was the fact that the Claimant had demonstrated a complete disregard for the laws of the United Kingdom, had entered illegally, and failed to comply with conditions. She considered that he posed a high risk of absconding. The Claimant knew that the Defendant intended to remove him, that she was in the process of obtaining the travel document, and would have had no incentive to comply with reporting restrictions.
97. The Claimant submits that Ms Thompson's evidence is self-serving and that I should treat it with caution. Of course Ms Thompson deposes to hypothetical actions after the event and in the context of this claim. But it is evidence from a responsible officer in circumstances where the Defendant, as it must when appropriate, does accept in cases such as these that detention would not otherwise have taken place.
98. Moreover, it is highly pertinent that when the rule 35 report was received on 8^th September 2010, it was carefully considered and the decision to maintain detention was made positively and consciously (on 10^th September 2010), as set out above. Ms Thompson herself did not make that decision, but in her witness statement says she would have made the same decision. She says that she would not have treated the information from MF as independent evidence, since it lacked any detail. Even if there had been independent evidence, she says that she would have found very exceptional circumstances to exist : on credibility grounds and the Claimant's immigration history.
99. I therefore find that not only could the Defendant have continued lawfully to detain the Claimant, but she would have done.
100. For these reasons, I would in any event have found that the Claimant was entitled to nominal damages only.

Unlawful detention upon issue of the first JR claim

101. The Claimant submits that he should have been released shortly after he issued the first JR claim, since from that point in time his removal was not imminent.
102. The Defendant submits that the issue of a judicial review claim challenging removal does not without more mean that removal would not take place within a reasonable time or that the Claimant was entitled to automatic release in some way. This is made clear in chapter 55.14 of the EIG. It is, though, something that needs to be taken into account, as does the risk of absconding.
103. The Defendant says that the fact that the first JR claim was "wholly unmeritorious" was also a relevant matter when determining whether or not a period of detention was reasonable in all the circumstances – see Lumba (supra) (at paragraph 115). The Claimant takes issue with this, pointing to the fact that the Defendant ultimately conceded the claim. To this the Defendant says that, as often happens in these cases, such concession was for pragmatic reasons only and in no way reflects the original merits of the claim. I do not find it necessary to express any firm view on the merits of the first JR claim, save to say that the Defendant's decision of 23^rd August 2010 under challenge was a full and reasoned one which would have been difficult successfully to quash.
104. Ms Thompson addresses the issue of detention after 10^th September 2010 in her witness statement as well. She says that the fact that the Claimant had lodged a claim for judicial review on 10^th September 2010 meant that he could not be removed immediately, but she would have concluded that the claim would have been determined quickly. The Judicial Review Unit had told the detention team that consideration was being given to expedition. On 27^th September 2010 she was told that a consent order had been suggested staying the claim for judicial review until a medico-legal report had been obtained as a result of a forthcoming appointment for the Claimant with MF. A consent order was drawn up on 30^th September 2010, 6 days away from the appointment, and the claim was stayed for a short period after that. She still considered that removal would take place soon. She would also have taken into account the Claimant's immigration history. It was only at the end of 6^th October 2010 when the Claimant missed the appointment that day (through no fault of his own), and when MF would not assess him in an IRC, that it became apparent that removal would not take place in a reasonable time. There was no date for a new appointment. Therefore, on 7^th October 2010 she considered that it was no longer reasonable to maintain detention. The Claimant's solicitors were informed accordingly on 7^th October 2010 and the Claimant released on 8^th October 2010.
105. The factual narrative shows that the Claimant's detention status was given anxious consideration throughout the period from 10^th September 2010 to 7^th October 2010. During this period there was a bail application to the First Tier Tribunal on 23^rd September 2010. Expedition of the first JR claim was clearly under consideration. It was then decided to await the outcome of the appointment of 6^th October 2010.
106. In my judgment, the Defendant did not exceed her powers lawfully to detain the Claimant during this period. The Claimant was not detained for more than a reasonable period in all the circumstances. A period of 20 days (from 10^th September to 30^th September 2010 when the short stay was proposed) cannot be said to be unreasonable, given the need for the Defendant to decide the appropriate way forward (including possible expedition) and the considerable activity being generated by the Claimant's solicitors and the Defendant alike. The proposal to a stay cannot be said to have been unreasonable, not least because the Claimant's solicitors agreed to it on 4^th October 2010.
107. It was reasonable to conclude up until 7^th October 2010 that the Claimant would be removed in a reasonable period and to continue his detention. There was good reason to anticipate early disposal of the first JR claim and then removal. The Claimant was being kept in suitable conditions. There is no evidence of any adverse effect on family, for example. There remained a very high risk of absconding.
108. Once it became clear that the appointment of 6^th October 2010 had been missed, the Defendant moved expeditiously the next day.

Conclusion

109. For all these reasons, I dismiss the claim. I invite the parties to seek to agree an order reflecting the above and any consequential matters, including costs.