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
		27/06/2014

Mr Justice Dingemans :

Introduction

1. This case is an example of what can occur when the Defendant has insufficient resources to monitor and review the administrative detention of persons who are subject to deportation orders.
2. It is established that the Courts will, in order to vindicate the rule of law, "regard with extreme jealousy any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language", R v Home Secretary ex parte Khawaja [1984] AC 74 at 122E. This approach by the Courts includes cases of administrative detention of foreign nationals pending deportation pursuant to the Immigration Act 1971 ("the 1971 Act").
3. The Claimant is a citizen of Sudan who came to the United Kingdom in February 2003 and who made an unsuccessful claim for asylum on the basis that he had been tortured for his opposition to the Sudanese authorities. After his arrival in the United Kingdom, and his release on reporting restrictions, he has absconded on a number of occasions, and he has committed serious criminal offences, including criminal offences against a former partner.
4. The Claimant has, since the completion of his latest prison sentence on 30 August 2011, been detained by the Defendant pursuant to powers contained in schedule 3(2)(3) of the 1971 Act, following the signing of a deportation order on 6 July 2011. Since that date a number of medical reports have been obtained showing that the Claimant has more than 250 scars on his body, some of which must have been inflicted by third parties. This is independent evidence which supports, but does not prove, his claims to have been tortured when in Sudan. It is common ground that it is not for this Court to make findings about whether the Claimant was tortured in Sudan.
5. Notwithstanding this medical evidence, including a report setting out the detail of the scars served on the Defendant on 5 November 2013, and notwithstanding an order made by the Court of Appeal in January 2014 requiring the Defendant to respond to that evidence, the Defendant did not respond to that evidence until 18 June 2014. This was one day before the hearing before me. This created obvious difficulties for both legal teams and the Court. I am very grateful to the legal teams for their assistance, and to Mr Halim and Mr Lewis for their submissions.
6. The reason given for the Defendant's failures to consider the medical evidence and to comply with the Court orders was lack of resources. This has caused problems in other cases, see R(Jasbir Singh) and others v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) at paragraph 15. I accept the explanation about the lack of resources, but it does not provide any legal justification for the lack of action. The effect of the failure of the Defendant to consider the medical evidence, and to review the Claimant's detention is that, as appears below and for the reasons given below: the Claimant's detention has become unlawful; the Defendant has incurred liabilities to the Claimant; and the Claimant must now be released.
7. It is also now common ground that the Defendant's decision dated 1 July 2013, to certify the Claimant's application to revoke the deportation order made against him as "clearly unfounded", should be quashed. The effect of the certification had meant that the Claimant could not appeal to the Tribunals against the refusal to revoke the deportation order.

Anonymity and a derogation from the anonymity order

8. The Claimant's name has not been published, as the Claimant continues to seek asylum and has not been granted asylum. In asylum cases anonymity orders are often made, see R(SK (Zimbabwe)) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299 at paragraph 6, although there is no general rule that there will always be anonymity for asylum seekers, see paragraphs 6 and 122. The making of such an order reduces risks to the person seeking asylum if the claim for asylum is unsuccessful and the person is returned to their home country. I am satisfied that an anonymity order should be made in this case.
9. However the effect of granting anonymity to the Claimant, who currently has very limited means, is that those who may have claims against him will not know that he will, when damages are assessed in these proceedings, receive an award of damages. The evidence before me discloses that the Claimant's former partner: is involved with the Claimant in Family Court proceedings in which costs orders might be made; has a son with the Claimant, which raises potential issues about maintenance; and may have a claim against the Claimant for damages following assaults committed by the Claimant on her.
10. Following discussions with counsel on the best way of: attempting to ensure that the Claimant's anonymity is preserved for the reason set out in paragraph 8 above; and ensuring that the Claimant's former partner who has a legitimate interest in knowing that the Claimant might receive funds is made aware of the fact; I direct that this judgment be sent by the Claimant's legal representatives to the Claimant's former partner, with a letter identifying the Claimant by name as the Claimant in this action.

The Claimant's claims of torture in Sudan

11. The Claimant is a national of Sudan. He was born in 1983 and is now aged 31 years. The Claimant states that he was arrested in Sudan in 1998 when 15 years old, following a protest at his school. He says he was kept in a cell for 3 days and beaten with sticks, batons and pipes and punched and kicked. He states that he was arrested again in 1998 in similar circumstances and held in prison for a week and beaten frequently by policemen. He signed a paper pledging not to participate in more rallies in order to obtain his release.
12. In 2000 the Claimant states that he refused to carry out his compulsory military service, on religious grounds and because it did not feel right, and he was arrested and beaten for 24 days.
13. In 2002 the Claimant says that he was arrested when attending an anti-Government protest in his first year at University. He says he was taken to prison and kicked, punched and beaten with sticks, plastic pipes and battons, and burned with cigarettes on his arms. His uncle paid a bribe to secure his release, but he says he was taken to Shandi, a town in Northern Sudan and cut with razor blades, had water poured on to his face, branded on his chest with a hot metal bar, and subjected to another assault. He was eventually released.
14. The Claimant states that he was then arrested when walking on the street, but used a false passport to escape, and came to the United Kingdom. The Claimant states that his parents and 3 of his siblings were killed as a result of the war.

The Claimant in the UK

15. The Claimant entered the United Kingdom on 2 February 2003 and claimed asylum on arrival. His asylum claim was refused on 22 March 2003 and he appealed against that decision. He was granted temporary admission on 18 May 2003 while his appeal against the decision to refuse his asylum claim was considered.
16. After a hearing on 16 September 2003, the appeal was dismissed on 3 December 2003. There was a detailed decision which made very serious findings against the Claimant in respect of the credibility of the account that he had given, as appears from paragraphs 19 to 28 of that decision. The inconsistencies in the Claimant's account of the "jail" or "training camp" from which he escaped were particularly notable, see paragraphs 24 and 25 of that decision. The decision recorded that "the cumulative effect of the incoherent inconsistencies, contradictions and implausibilities in the account is that no credence can be attached a) to his account of core events relating to him in Sudan b) to his account of the reasons claimed by him for leaving Sudan, and c) to his account of the risk he would face on return".
17. There is an unusual feature of this case. The Claimant was represented in 2003, for a period of time, by his current legal representatives. A report had apparently been commissioned from the Medical Foundation in 2003. A report, which is undated, was prepared by Dr John Joyce. It was based on examinations on 17 July, 14 August and 29 September 2003. This report listed the scars present on the Claimant at the time of the examination. Dr Joyce recorded that the scars were consistent with the Claimant's account of torture. This was therefore very relevant evidence to be adduced before the Tribunal on 16 September 2003. There were apparently funding difficulties, and the report was not finally completed. At the hearing on 16 September 2003 the Claimant was represented by another person, and it is not clear from the judgment whether that person was legally qualified. In any event there was no apparent reference to the proposed report, or to the fact that, as at the time of the hearing, the Claimant was apparently covered in scars which were capable of providing independent support for his claims of torture. A further unusual feature is that, notwithstanding the funding issues, the Claimant apparently saw Dr Joyce both before and after the hearing.
18. The Claimant did not appeal, and he became appeal rights exhausted on 23 December 2003. It appears that at some stage the Claimant was sectioned under the Mental Health Act 1983 at Hull Royal Infirmary hospital. After the dismissal of his appeal the Claimant was listed as an absconder as he had failed to report since 14 October 2003.
19. The Claimant next came to the attention of the Home Office on 9 November 2004 after he had been arrested for using a forged French ID card in order to obtain employment and open bank accounts. He was detained under immigration powers but was released on 21 September 2005. On 26 June 2006 he was again listed as an absconder.
20. The Claimant came again to the attention of the Home Office on 14 December 2006 when he was arrested for motoring offences. The Claimant stated that he had been unable to report in accordance with reporting requirements because he had been in police custody. There is no evidence to suggest that he had been in police custody at that time, although I note from the papers in the Family Court that there is a suggestion that the Claimant had been violent to a person with whom he had previously been in a relationship, so it is possible that he might have been detained. There is insufficient evidence before me to make any finding.
21. On 27 June 2007 the Claimant was arrested on suspicion of deception having been found to have in his possession a forged Belgium passport which he had been attempting to use to open a bank account. Whilst on police bail the Claimant was also arrested for illegal working and possession of an offensive weapon.
22. At some stage in 2007 the Claimant, then aged 24 years, began a relationship with his former partner, who was then aged 16 years. They had met when the Claimant was delivering pizzas.
23. At Hull Crown Court on 22 November 2007 the Claimant was convicted of knowingly possessing a false document and dishonestly making false representations, and he was sentenced to 15 months imprisonment. On 14 February 2008 the Claimant was served with a liability for deportation notice. On 30 May 2008, when the Claimant was still in prison, his former partner gave birth to a boy, the son of the Claimant. The Claimant was served with a decision to make a deportation order and reasons for deportation letter on the 2 July 2008. The Claimant completed his sentence on 7 July 2008 and was detained under the 1971 Act.
24. On 16 July 2008 the Claimant lodged an appeal against the decision to deport him and on 22 July 2008 the Claimant was granted bail by the Immigration and Asylum chamber.
25. On 5 August 2008 the Claimant made fresh submissions. As a result the decision to deport was withdrawn by the Home Office on 14 October 2008. However whilst on bail from the Immigration and Asylum Chamber the Claimant was arrested on 9 May 2009 for burglary and on 24 July 2009 for fraud.
26. On 14 August 2009 the Claimant was served with a decision to make a deportation order and the reasons for deportation letter. He lodged an appeal against this decision on 25 August 2009 but his appeal was dismissed in a decision dated 24 November 2009, following a hearing on 19 November 2009 at which the Claimant and his former partner gave evidence. In that decision the way in which the Claimant's case had developed in relation to his claimed background were noted (at paragraph 23), as was the way in which the Claimant's claimed political affiliations had changed (at paragraph 24). The Claimant was found not to be credible, and reference was made to the fact that he had said that his former partner's mother was out of the country and could not give evidence, whereas his former partner had confirmed that her mother was at work in Hull (at paragraph 29 of the judgment). Although the Claimant was represented by counsel, the Claimant did not appear to make any reference to his scarring in support of his case.
27. The Claimant became appeal rights exhausted on 24 December 2009. On the same date the Claimant's former partner reported that she had ended her relationship with the Claimant following an incident on 22 December 2009.
28. Less than one month later, in January 2010, the Claimant was convicted at Hull Magistrates Court for battery which was committed against his former partner. He was sentenced to 20 weeks imprisonment. He also received a restraining order which was to remain in force until 21 January 2013. This restraining order required him not to approach, contact, pester or harass his partner.
29. By 28 April 2010 there were reports that the Claimant was going round to his former partner and causing problems. It appears that the Claimant was arrested at some time in about May 2010 and held in custody awaiting trial.
30. On 2 May 2011, at a time when he was in HMP Hull, the Claimant made an application for contact with his son. Later reports produced in those proceedings have recommended that there should not be contact unless the Claimant established a right to reside in the country. The Defendant has now been made a party to the Family Court proceedings, and served a position statement.
31. On 1 June 2011 the Claimant was convicted at Kingston upon Hull Crown Court for breaching of a restraining order and fraud and he was sentenced to 30 months imprisonment.
32. On 31 May 2011 the Claimant lodged a further appeal against the decision to deport him. This was struck out on 29 June 2011 as he had already exhausted his appeal rights.
33. On 6 July 2011 a deportation order was signed against the Claimant and served on him on 11 July 2011. The Claimant completed his custodial sentence on 30 August 2011 and has, since that date been detained under the 1971 Act. The evidence shows that the Claimant has been moved between Immigration Removal Centres and prisons, and that rule 35 reports have been produced about the Claimant.
34. Medical evidence relating to the Claimant has been served on the Defendant during his time in detention, and this is considered further below. The medical evidence was relied on to challenge the deportation order. On 1 July 2013 the Defendant rejected the challenge, and certified the Claimant's challenge to the decision to deport him as "clearly unfounded" pursuant to section 94(2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The effect of such certification was that the Claimant could not challenge the Defendant's refusal to revoke the deportation order in the Asylum and Immigration Tribunals.
35. Materials disclosed by the Defendant on 18 June 2014 show that there were no detention reviews on the Claimant between 17 December 2013 and 6 June 2014. The only suggested explanation for the failure to carry out those reviews was lack of resources.
36. It is apparent that during 2014 some consideration was given to releasing the Claimant, subject to conditions. The Claimant's legal representatives wrote to the Defendant seeking the Claimant's temporary admission and release from detention. A chasing letter was sent on 29 January 2014. On 6 February 2014 the Claimant made an application for a bail address and support under section 4(1)(c) of the Immigration and Asylum Act 1999 ("the 1999 Act"). Further chasing letters were sent on 11 February 2014 and 21 February 2014. On 17 March 2014 the Defendant acknowledged the application for bail and reported that accommodation providers had sourced accommodation but, because of the Claimant's previous convictions, the accommodation needed to be approved by the police.
37. On 14 April 2014 a letter before action was sent to the Defendant's legal representatives complaining of the delay in approving accommodation. By letter dated 30 April 2014 a reply was sent, and the Defendant noted that an address proposal had been received on 17 March 2014, and required approval from the Humberside Police before it could be offered to the Claimant. On 31 March 2014 Humberside Police responded objecting to bail because of concerns about the Claimant. Attempts were made to persuade Humberside Police to carry out a risk assessment regardless of costs involved, but it appears from Humberside Police's acknowledgment of service that no risk assessment was carried out because the relevant address was not in their police area.
38. On 22 May 2014 the Claimant applied for urgent interim relief from the Administrative Court for release. I have been provided with no evidence about Humberside Police's concerns, and it may be that further decisions about the Claimant will need to be taken by the Defendant and other relevant authorities after delivery of this judgment, which has been provided to the parties in draft.
39. The evidence shows that the Sudanese embassy has, to date, refused to provide Emergency Travel Documents ("ETD's") for the Claimant. The Claimant cannot be deported without ETD's. As a matter of history the Claimant had apparently denied being a national of Sudan, but this difficulty has now been resolved. More recently the Sudanese embassy has refused to provide ETD's because the Claimant had outstanding Family Court proceedings seeking contact with his son. It is apparent that the Defendant considered that it might be able to persuade the Sudanese embassy to issue ETD's for the Claimant.

These proceedings

40. This hearing relates to two sets of judicial review proceedings. In the first set of proceedings the Claimant challenges the lawfulness of his detention, and seeks damages for his past detention. In the second set of proceedings the Claimant challenges the refusal of his application to revoke his deportation order, and the decision to certify the application as "clearly unfounded".
41. Permission to apply for judicial review was refused at first instance, but the Claimant was granted permission to bring the proceedings by orders made by the Court of Appeal dated 17 and 22 January 2014. The Court of Appeal directed the Defendant to serve detailed grounds of defence, together with any response to the Claimant's fresh evidence, within 35 days of 17 January 2014. It is right to record that, following the refusal of permission to apply at first instance and before the hearing in the Court of Appeal, further medical evidence was served on behalf of the Claimant. The Claimant remains in detention.

Issues

42. It appears that the following matters are in issue in these proceedings:

(1) Whether the Claimant's detention has been unlawful from 25 October 2011, or some later date;

(2) If so, whether the Claimant is entitled to damages for that unlawful detention, or only nominal damages;

(3) Whether the Claimant should be released from detention.

43. As noted above, following the service of the Defendant's Skeleton Argument on 18 June 2014, it is now common ground that the Defendant's decision dated 1 July 2013 to certify the Claimant's application to revoke the deportation order made against him as "clearly unfounded" should be quashed.
44. It was also confirmed on behalf of the Claimant that although claims for damages for wrongful detention had been made in respect of detention in 2004-5 and in 2008, these claims were not now being pursued and had not been pursued since amended grounds were filed in May 2013.

Relevant policies

45. The Defendant was given power by the Immigration and Asylum Act 1999 to make rules for the regulation and management of Detention Centres. The Detention Centre Rules 2001 ("the 2001 Rules") make provision for persons who are detained. They provide at rule 9 for reviews, where a person is subjected to a period of detention, every 28 days. They also make provision for safeguarding the wellbeing of a victim of torture who is detained. Rule 34 provides that every detained person shall be given a physical and mental examination by a medical practitioner within 24 hours of admission to a detention centre. Rule 35 provides obligations for the medical practitioner to report: on the case of a detained person whose health is likely to be adversely affected by detention; on the case of a person suspected of having suicidal intentions; and where there are concerns that a detained person may have been the victim of torture.
46. The Rules are supplemented by the Defendant's "Enforcement Instructions and Guidance" ("the EI Guidance") which sets out the Defendant's policy applicable to the detention, temporary release and temporary admission of asylum seekers. In Chapter 55 it is recorded that it is necessary to retain the power to detain to maintain effective immigration control, but there is a presumption in favour of temporary admission or release. The power to detain is most appropriate "to effect removal … where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release".
47. Chapter 55.8A of the EI Guidance refers to Rule 35 of the 2001 Rules. It states "The purpose of rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention". The EI Guidance makes it clear that the information in the report needs to be considered in deciding whether continued detention is appropriate in each case, and that on receipt of a Rule 35 report, "caseworkers must review continued detention in light of the information in the report … and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro forma".
48. The EI Guidance provides, at 55.10, that "The following are normally considered suitable for detention in only very exceptional circumstances … those suffering from serious mental illness which cannot be satisfactorily managed within detention … those where there is independent evidence that they have been tortured."

Relevant principles of law

49. It is established that the power of detention set out in the 1971 Act is subject to implied limitations. In order to be lawful, the detention must comply with the following conditions: (i) the Defendant 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 became apparent that the Defendant will not be able to effect deportation within a reasonable period, the Defendant should not seek to exercise the power of detention; and (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal; see R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and R(Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 at paragraph 22. A relevant consideration will be whether a person to be deported is likely to abscond, because if a person absconds, he will frustrate the proposed deportation.
50. Further a failure to apply the Defendant's relevant policy may, if the policy is sufficiently linked to the decision to detain or to continue detention, give rise to a claim for unlawful detention, see R(Lumba) at paragraph 68 and R(SK (Zimbabwe)) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299 at paragraphs 42, 51 and 52.
51. It is also established that expelling and deporting a foreign person in the middle of contact proceedings in a family case may infringe articles 6 and 8 rights protected by the European Convention on Human Rights ("ECHR"), see Ciliz v The Netherlands [2000] ECHR 365 at paragraphs 62 and 71. That decision was applied and followed by the Court of Appeal in MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133; [2007] Imm AR 538. The reason for the possible infringement is because the applicant might be unable to access the Court from the location to which they have been removed, and might lose the opportunity to establish contact. As a result of these decisions it appears, from the headnote to the judgment in MH v Secretary of State for the Home Department [2010] UKUT 439 (IAC), that the Defendant's usual practice is not to remove parents when family or other Court proceedings are current, and a short period of leave to remain is sometimes granted.
52. A rule 35 report under the 2001 Rules is capable of constituting independent evidence of torture, see R(D and K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin) at paragraph 50.

Family Court proceedings did not make detention unlawful

53. The Claimant contends that his outstanding application for contact in the Family Court meant: (1) that he should have been released from detention under the relevant policy; and (2) that he would not be deported within a reasonable time so that his detention became unlawful under Hardial Singh principles. The Claimant also relied in this respect on the fact that ETD's have not been provided.
54. The Defendant says that the evidence shows that the Claimant has been able to play a full part in the Family Court proceedings, and that the Claimant's detention was not in breach of policy. The Defendant also notes that it was considered that the Family Court proceedings would conclude within a reasonable period of time, and that it was considered likely that the Sudanese embassy could be persuaded to issue ETD's for the Claimant.
55. The documents show that the Defendant was aware that the Claimant was involved in Family Court proceedings by 25 October 2011, and the Claimant contends that he should have been released on that date. Various detention reviews noted that Family Court proceedings were a possible barrier to deportation, and it was also recorded that the Claimant might normally have been expected to be released. Other reviews noted that the Family proceedings were not a barrier to removal, and that the Claimant could participate in the proceedings, and maintain contact if contact was ordered, by modern means of communication.
56. As noted in paragraph 51 above, the headnote to the judgment in MH v Secretary of State for the Home Department shows that the Defendant's usual practice is not to remove parents when family or other Court proceedings are current, and a short period of leave to remain is sometimes granted. I was not shown details of the policy in the evidence before me. However there is nothing in the headnote or decision in MH to suggest that the policy does not take account of relevant circumstances, and it would be surprising if any policy provided that relevant considerations should be ignored. In my judgment the Defendant was entitled to take account of the fact that the Claimant had relevant convictions and had in the past absconded. Lumba supports the proposition that a person's propensity to abscond is a material consideration, because if the person has absconded he cannot be deported, see paragraphs 104 and 121.
57. Ciliz and MS establish that the Claimant should be able to take a proper part in the Family Court proceedings. It is well known that Claimants can continue to take a proper part in Court proceedings from detention. The existence of the Family Court proceedings did not require the Claimant's release. In my judgment it would be wrong to suggest that a person who is detained pending deportation should immediately be released the moment that he starts Family Court proceedings, regardless of other relevant matters. The decision must depend on relevant matters, and I do not find that the Claimant has established any relevant breach of policy.
58. Further, the evidence before me does not show that the Family Court proceedings or the absence of ETD's have meant that "it became apparent that the Defendant will not be able to effect deportation within a reasonable period", see paragraph 49 above, such that the Claimant ought to have been released. It appears to have been considered that the Family Court proceedings would conclude within a short period of time, and that the Sudanese embassy would issue ETD's, and in my judgment this was a permissible and reasonable approach. I note that a number of hearings in the Family Court have been arranged and adjourned, and that another date for a final hearing has been set for July 2014.
59. I should record that one report writer in the Family Court proceedings considered that a relevant factor about whether to order contact (which has not occurred for a considerable period of time between the Claimant and his young son) was whether the Claimant would be deported or would remain in the jurisdiction. It is apparent that this is therefore likely to be a relevant factor in the Family Court proceedings, but in these circumstances there is an obvious risk that proceedings considering deportation, and proceedings considering contact, might become circular. For example the Tribunal may, before making a decision about deportation, decide to wait on a decision in the Family Court proceedings. Equally the Family Court might decide to wait on a decision from the Tribunals of the Immigration and Asylum Chamber about whether the Claimant will be deported before making a decision on contact. The proceedings must not be permitted to become circular.

Unlawful failure to take account of relevant medical evidence relating to scarring and to carry out detention reviews

60. The second main basis that the Claimant relies on to show that the detention is unlawful is that the Defendant received rule 35 reports and medical evidence and failed to consider it. The Claimant claims that the medical evidence showed that the Claimant was not fit to be detained because of his mental illness, and that the medical evidence was independent evidence of torture, meaning that the Claimant should be released unless there were very exceptional circumstances under the relevant policies. The Claimant stated that he was the subject of good reports from prison and that he had been detained for a period of time which was not reasonable, and was unlawful. The Claimant relies on the fact that the Defendant, in breach of the order made by the Court of Appeal on 14 January 2014, did not file detailed grounds of defence, and did not address the fresh medical evidence. The Claimant also relied on the fact that there had been no detention reviews, which should take place every month, between January and June 2014.
61. The Defendant contends that proper consideration was given to the rule 35 reports, and some of the medical evidence. It is accepted that more recently there has been a failure to respond to medical evidence and carry out detention reviews, but it is submitted that the Claimant has suffered no loss because he would have been detained in any event.
62. It is necessary to consider the medical evidence. On 13 April 2012 there was a Rule 35 report which recorded "scars show evidence of extensive torture …". This was considered by the Defendant and by letter dated 15 April 2012 the Defendant referred to the decision dated 3 December 2003 and the finding on credibility set out above. Reference was also made to decision dated 24 November 2009 and the adverse findings on credibility.
63. By letter dated 26 March 2013 the Medical Foundation report from 2003 was served by the Claimant's legal representatives, who stated that they were in the process of conducting a full review of the case. The report is the undated Medical Foundation report prepared by Dr John Joyce referred to in paragraph 17 above. The report listed the scars present on the Claimant at the time of the examination. Dr Joyce recorded that the scars were consistent with that account.
64. A second rule 35 report dated 1 May 2013 was produced. This contains a short description of the circumstances of ill-treatment and torture alleged by the Claimant and states that the Claimant says he has 263 scars on his body. A body map was produced. The notes record scar and burn marks. Mr Halim submitted that the report showed that the Claimant had been beaten with plastic pipes, burned with cigarettes and cut with a razor, but the report reads as if the report writer is recording what the Claimant has said about the scars. It does not appear that there was any response to this report, which is a breach of the relevant provisions set out in the 2001 rules. However it is apparent from the letter dated 7 June 2013, and later detention reviews, that inquiries were being made of practitioners who were responsible for the care of the Claimant when in HMP Leeds.
65. A report from Dr Millington dated 24 April 2013, produced following an assessment on 10 April 2013 at HMP Leeds, was served on the Defendant on 9 May 2013. Dr Millington qualified in 2000 before working in medical and surgical house jobs in Barnsley District Hospital. Dr Millington now works as a General Practitioner and reports that a large percentage of GP work is concerned with the mental health of patients. At the time of the assessment in April 2013 Dr Millington reported that the Claimant was on hunger strike, and had been for 40 days. The Claimant became distressed in interview when giving details about alleged assaults. Dr Millington diagnosed the Claimant with Post Traumatic Stress Disorder ("PTSD") which was assessed as being consistent with the Claimant's account of torture, and consistent with scarring which documented severe ill-treatment. Reference was also made to a chest infection, and to the fact that the Claimant's medical conditions could not properly be treated in prison.
66. By letter dated 7 June 2013 Dr Brew of HMP Leeds Healthcare responded to Dr Millington's report. Dr Brew noted that the Claimant had seen the mental health team on a number of occasions, and no firm diagnosis had been suggested. It was noted that the Claimant's weight had actually increased during the alleged hunger strike. Dr Brew made a number of comments about Dr Millington's qualifications and experience, and Dr Millington responded to those by letter dated 28 August 2013.
67. By letter dated 1 July 2013 the Defendant wrote a detailed letter responding to an application to revoke the deportation order, and addressing correspondence written by the Defendant's legal advisers. This recorded, at paragraph 96, that "all points raised in [the 2003 Medical Foundation report] were actually considered at some length during both appeals". Extensive reference was then made to the adverse credibility findings against the Claimant, and it was recorded that there was no new evidence to contradict the Immigration Judge's finding that the Claimant would be of no interest if returned to Sudan. Dr Millington's report was addressed by reference to Dr Brew's comments, and by noting that Dr Millington had diagnosed the Claimant by reference to the Claimant's account of events, which were contended to be untrue. It was noted that the Claimant had not made reference to his scarring when giving evidence in 2003. This was the letter which certified that the claims made by the Claimant were clearly unfounded.
68. A further report from Dr Millington was sent by letter dated 5 November 2013. This report concluded that the extensive scarring was highly consistent with torture. The report was dated 28 October 2013, following an assessment at HMP Leeds on 9 July 2013.
69. Dr Millington noted the relevant factual background relayed by the Claimant, and reported distress when the Claimant was recounting assaults. Dr Millington noted a large number of scars over various parts of his body, which the Claimant said had, apart from two on his left forearm from self harming, resulted from assaults received when he was detained in Sudan. Dr Millington recorded these on a body map and reported "numerous scars and pigmented lesions over his face". Dr Millington noted the age and appearance of the scars, noting that some were highly consistent with burns, beating and assault with a sharp object. Dr Millington considered other causes for the scarring, including deliberate self-harm but noted that some of the scars would have been difficult or unusual to self inflict. Dr Millington considered that the overall pattern of scarring was "highly consistent" with the Claimant's account.
70. Dr Millington stated that his psychiatric symptoms and psychological distress at the time of assessment were severe. This accorded with her clinical impression and the Claimant's refusal of food and history of suicide attempts. Dr Millington considered other causes for the Claimant's symptoms including his migration, the death of family members, the breakup of his marriage, his imprisonment and anxiety about his asylum claim, but considered that they could not explain the trauma-related symptoms of intrusive memories, nightmares and flashbacks. I did not hear evidence from the medical practitioners.
71. I turn to consider the periods of detention. In my judgment the Defendant was entitled to detain the Claimant following the completion of his sentence of imprisonment. The evidence shows that the Claimant has committed offences, and also shows that he has absconded on more than one occasion. At the time that he was first detained there was a real prospect of deporting the Claimant within a reasonable time.
72. The Defendant's response in 2012 to the first rule 35 report was made within time. It is right to note that the response was mainly concerned with the decisions made by the Tribunals about the Claimant's lack of credibility, but these findings had been important and damaging findings against the Claimant, and they appeared to be soundly based on the facts before the Tribunals. The Defendant was entitled to take them into account and maintain that the Claimant had not been the victim of torture. The rule 35 reports did not show why their findings were independent of the Claimant's version of events.
73. The Defendant failed to respond to the second rule 35 report within 2 days, in accordance with Chapter 55.8A of the EI Guidance. There was no good reason not to follow the policy. In my judgment the policy of responding to rule 35 reports is closely linked to the decision to detain or to continue detention. This is because the policy is designed to highlight matters relevant to the detention of particularly vulnerable detainees and ensure that they are brought to the attention of those responsible for authorising, maintaining and reviewing detention. This failure to comply with the policy therefore made the continued detention unlawful, see R(SK (Zimbabwe)).
74. However it appears, and I find, that the relevant authorities were considering the Claimant's situation because after the Millington report was served, evidence was obtained from the healthcare professionals at HMP Leeds, and there was a detailed letter sent by the Defendant on 1 July 2013 which addressed allegations of torture. The Defendant decided not to release the Claimant at that time. I will therefore need to consider whether the Claimant is entitled to real, or only nominal, damages for the period from 3 May 2013 (2 days after the second rule 35 report) until 1 July 2013, and I address this below.
75. I have also considered anxiously whether the Defendant should have released the Claimant from detention some time shortly after receipt of the second rule 35 report and the first report from Dr Millington on 9 May 2013. I am satisfied that the Defendant has shown that the detention would, but for the failure to respond to the rule 35 report before 1 July 2013, have been lawful. This was because the Claimant continued to pose a serious risk of absconding. The Defendant had medical evidence disputing Dr Millington's conclusions. The Defendant was entitled to consider that whatever medical condition suffered by the Claimant, it could be managed within prison. Finally, as appears from the detail set out in the letter dated 1 July 2013, there were good grounds on which to reject the Claimant's account of having been tortured.
76. In my judgment matters changed with the service of the second Millington report on 5 November 2013. This report showed that not all of the scars could have been self inflicted, and gave clear details about them. This report was independent evidence supporting the Claimant's case that he had been tortured. The second Millington report plainly justified careful consideration by the Defendant. The Defendant needed to consider whether it was reasonable to maintain the certification that the Claimant's claim to revoke his deportation order was "clearly unfounded", and whether if not, the Claimant was likely to be involved in detailed and contested Tribunal proceedings. Any such Tribunal proceedings were likely to impact on the issue about whether the Claimant could be deported within a reasonable time.
77. The second Millington report also raised issues about whether the Claimant's detention should be maintained because the report constituted independent evidence that he had been tortured, meaning that detention could only normally be justified in very exceptional circumstances. If the Defendant was going to act with "reasonable diligence and expedition to effect removal" which the Defendant had to do to comply with the principles set out in Hardial Singh, the Defendant had to consider that report. Although it was not served as a Rule 35 report, it plainly merited very rapid attention by the Defendant, and there were no submissions to me to suggest that the 2 day period set out in the EI Guidance for rule 35 reports should not apply to this report. This would have meant that the report should have been responded to by 7 November 2013. Mr Lewis noted that it was deeply unfortunate that the report had not been considered. In my judgment the failure to consider the second Millington report rendered the Claimant's detention unlawful from 8 November 2013, the day after it should have been considered. The materials before me show that this failure continued until 18 June 2013.
78. The failure to review the Claimant's detention from January to 6 June 2014 was also in breach of the relevant policy set out in the EI Guidance. This failure also rendered the Claimant's detention unlawful, for the reasons given in R(SK (Zimbabwe)). On this ground alone the Claimant's detention was unlawful from January until 6 June 2014.
79. The Defendant says that although the Claimant's detention did become unlawful for periods, in particular between January and May 2014, the Claimant should be entitled only to nominal damages. It is established that if it can be shown, on the balance of probabilities, the public law failing had not occurred the Claimant would still have been lawfully detained, the Claimant is entitled only to nominal damages, see R(Lumba).
80. It is therefore necessary to address each period of unlawful detention. Although, for the reasons given above, in my judgment the failure to consider the second rule 35 report rendered the Claimant's detention unlawful for the period from 3 May 2013 (2 days after the second rule 35 report) until 1 July 2013, I find that if the second rule 35 report had been considered by 3 May, the Claimant would have been lawfully detained in any event. This is because this is exactly what happened when medical evidence in the report from the Medical Foundation which was to the same general effect as the second rule 35 report, namely that the Claimant had scars and claimed to have been tortured, was considered by the Defendant on 1 July 2013.
81. However the period from 8 November 2013 onwards is different. If the Defendant had considered the second Millington report the Defendant would have been bound to quash the certification that the Claimant's application to revoke the deportation order was "clearly unfounded". I say this not just because the Defendant has now agreed that the certification should be quashed, but because the contents of the second Millington report, providing independent evidence of torture, meant that such a certification was not sustainable. The quashing of the certification would have meant that, at the least, the Claimant would have been entitled to pursue the application to revoke the deportation order to the Tribunals. The fact that the Defendant did not consider the report until 18 June 2014 means that the whole period from 7 November 2013 has been wasted, while the Claimant has been detained with no progress towards a resolution, one way or the other, being made.
82. It is also clear that, in the circumstances of this particular case, once the second Millington report had been served the Defendant would "not be able to effect deportation within a reasonable period", meaning that the Claimant could not be detained without infringing the limitations set out in Hardial Singh. The reason that the Claimant would be deported within a reasonable time, was because the second Millington report raised important matters which justified careful consideration. This part appears from the fact that the Defendant, having considered the report on 18 June 2014, asked at the hearing for a further 8 weeks to decide how to respond to the second Millington report. Reference was made in submissions to the need to obtain medical evidence. If the Defendant maintains the decision to refuse to revoke the deportation order against the Claimant, the Claimant will challenge that decision in the Tribunals. Mr Lewis suggested that a Tribunal hearing might take place in October 2014, some 4 months in the future, but that timescale is likely to depend on the availability of medical evidence. In my judgment the Claimant is entitled to be sceptical about the Defendant's now stated desire to deal promptly with his case, in circumstances where nothing relevant has happened between 8 November 2013 and 18 June 2014.
83. In these circumstances the Claimant is entitled to real, and not nominal, damages for the period from when his detention became unlawful, which is 8 November 2014, until his release. As the Claimant's current detention is unlawful, because he cannot be deported within a reasonable time, he should be released.

Conclusion

84. For the detailed reasons given above I find that: the Claimant's detention was unlawful for the period from 3 May to 1 July 2013, but the Claimant is entitled to nominal damages only for that period; the Claimant's detention was unlawful for the period from 8 November 2013 to date, and that the Claimant is entitled to real damages for that period; and that the Claimant is entitled to be released from detention because the Defendant is not able to effect deportation within a reasonable period of time. An anonymity order ought to be made for the reasons given in paragraph 8, but the Claimant's former partner should be provided with further information for the reasons set out in paragraph 10.
85. The parties are to liaise and attempt to produce an order to give effect to this judgment, and any necessary consequential matters. If the order cannot be agreed I will hear short further submissions.