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
		26/10/2015

Mrs Justice Andrews:

1. This is a claim for judicial review of (i) the Defendant's ("SSHD") decision of 6 February 2015 (confirmed after further consideration on 16 June 2015) refusing to accept the Claimant's representations as a fresh asylum and human rights claim, and (ii) the lawfulness of the Claimant's detention under immigration powers from 21 November 2014 to 17 April 2015.
2. The Claimant ("C") is a foreign criminal with an appalling immigration history, who is liable to deportation in consequence of having been sentenced to 12 months' imprisonment for being concerned in the supply of class A drugs. He has been diagnosed with schizo-affective disorder, which appears to be well-controlled provided that he takes his anti-psychotic medication. Having exhausted his rights of appeal against the refusal of a very belated claim for asylum, he has done everything within his power to avoid being deported.
3. The period of detention whose lawfulness is challenged in this claim was C's second period in immigration detention. During the first period he used his best endeavours to force the authorities to release him. His compliance with his medical regime became irregular, and subsequently he started to refuse food, medical tests and/or treatment and, intermittently, at least, fluids. After his legal representatives had made two attempts to obtain an order for his release, Jeremy Baker J was persuaded by the medical evidence that he was no longer fit for detention, and ordered his release on bail to enable his transfer to Hillingdon Hospital. There he underwent treatment and made a remarkably rapid recovery for a man who was said to be in imminent danger of death by starvation. He arrived in the hospital on 19 July 2013, where, according to the records, he was found to be suffering from only mild dehydration. He was able to eat and drink normally, and discharged on 23 July. Within a few weeks of his release, he failed to report to the authorities.
4. He was subsequently apprehended by the police after committing further criminal offences. On 17 November 2013 he was encountered for breach of the peace and possession of cocaine. He was described as "being a menace to young females". He was arrested again for breach of the peace on 14 April 2014. On 18 September 2014 he was sentenced to 4 months and 13 days' imprisonment for threatening and abusive behaviour and assaulting a police officer in the execution of his duty; he was detained for a second time under immigration powers on 21 November 2014 after the custodial portion of that sentence ended.
5. C subsequently sought to challenge the first period of detention as unlawful. Hayden J's judgment in that matter [2015] EWHC 2754 (Admin) was handed down on 2 October 2015, shortly before I heard argument in the present case. Hayden J concluded that the evidence "did not come close" to establishing that C had a serious mental health condition that could not be managed satisfactorily in detention or that his food and fluid refusal was or might have been influenced by a serious health condition. He said, at [67] that the facts "point compellingly towards C having calculated and executed a plan to avoid deportation. Quite how cynical it was did not emerge until his discharge. As C himself put it, he had "gone on hunger strike because his immigration case was hopeless"."
6. Although the issues before Hayden J were largely different to those which I have to decide, parts of the medical reports which he considered were also relied on before me. His judgment puts the present claim in context. It is also of some significance that he found that the SSHD was entitled to conclude that C's mental health could be satisfactorily managed in detention despite C being only sporadically compliant with taking medication, and his subsequent decision to refuse food and/or fluids. There were no such complicating factors during the subsequent period of detention with which I am concerned.

FACTUAL BACKGROUND

7. C is a national of the Gambia who first entered the UK on 18^th September 2007 on a visitor's visa, ostensibly to visit his "fiancée" Linda Firth (a lady in her forties, who he claims was already married). He made three applications for entry clearance, the first two of which were made in July 2007 and were refused. His occupation was given as "tourist taxi driver". The date of birth in his passport and on all three of those applications is 13 May 1978, which would make him 37 years old now and 29 when he first arrived here; but he now claims that he was actually born in 1993. If that is true, he would have been 14 when he first arrived, and is still only 22. He overstayed after his visa expired on 18 December 2007, and has remained in the UK illegally ever since.
8. Records on the SSHD's file which were put before the First-tier Tribunal of the Immigration and Asylum Chamber ("FtT") at his asylum appeal indicated that his sponsor (Linda) told the immigration authorities he had absconded on 22 January 2008, but that they then received a letter from her in March 2008 which indicated that the couple's problems had been resolved and that they were going back to the Gambia to get married. The letter asked whether his overstay would go against him. C denied that there was ever a plan to return to the Gambia to marry Linda, and accepts that he was not honest with her.
9. Between 2008 and March 2012, by which time he was living in Scotland, C was convicted of a number of criminal offences, ranging from being drunk and disorderly to threatening behaviour. The heaviest sentence imposed on him during that period was one of three months' imprisonment. Most of the convictions were under a false identity, Lamin Suwaneh. On 21 May 2012 he was arrested for being concerned in the supply of controlled drugs and remanded in HMP Barlinnie, which is when he came to the attention of the immigration authorities. He was served with papers as an overstayer, at which point he claimed asylum.
10. On 9 August 2012 he pleaded guilty to the drugs offence before Glasgow Sheriff Court, and received a sentence of 12 months' imprisonment. This rendered him liable to automatic deportation on completion of his sentence. The Sheriff was told by his solicitor at the sentencing hearing that his personal circumstances had changed, because prior to his remand in custody he had been in a steady relationship and living with a (female) partner, but that although she remained supportive of him, that relationship had now ended. C identified the woman concerned to the immigration authorities as Caroline Gunn. He said she was a 49 year old British citizen, and that he had a sexual relationship with her.
11. During the formal screening interview, which took place on 21 September 2012, C claimed that he was bisexual, and that his family wanted to kill him when they found out about his sexuality. He also claimed to fear persecution or severe ill-treatment in the Gambia on account of his bisexuality or homosexual orientation if he were to return there. Both at his initial asylum interview and at his formal screening interview C gave his date of birth as 5 May 1981. He said that he was 14 or 15 and sleeping rough on a beach when he met Linda Firth and her husband. He began an affair with Linda and told her he wanted to come to the UK. She sent him money for the visa and he told the authorities that she was his fiancée. He did not tell her his age or that he was bisexual. When he came to the UK, Linda met him at the airport and took him to Leeds, but not to the house where she lived with her husband and two children. He said she did not live with him all the time and would go back to her family house. However around 2 months after he arrived in the UK he told her the truth about his sexuality and the relationship ended.
12. When questioned about his discovery of his sexual orientation C said he realised he was "different" when he was around 10 years old but he did not sleep with a male until he was 13 or 14 when he started going out with a German man, Karl Hans Kloser, whom he met by the beach. C said he was working in a restaurant and a hotel at that time, but the jobs did not last long. He told the interviewing officer that when his family found out about his sexuality, his brother beat him with an iron bar on his stomach and hit him on the face, and he pointed to two scars. When he was asked how his family found out that he was homosexual he said "rumours, people told them and they confronted me and I couldn't tell them lies". He said he ran away, but his family found him and gave him "a serious beating" and he had to go to hospital for a couple of days. He ran away from the hospital before they found out he was there and came to get him. He was 15, or turning 15 when he ran away for the last time, and after that he came to the UK. He said he paid a police officer the equivalent of £20 to get him his passport. He said he told the policeman that he was born in 1978.
13. On 6 November 2012 the SSHD made a removal decision, signed a deportation order and refused C's asylum claim. On 12 November his custodial sentence came to an end and he was detained under immigration powers. On 19 November 2012 he appealed against the decision to deport him. A document was produced for the appeal which contained a paragraph by paragraph commentary on the decision letter, accepting some parts of it and contesting others. In that document, C repeatedly stated that he was 19. His formal statement gave his date of birth as 1 August 1993, but his oral evidence at the hearing was that his date of birth was 1 September 1993. Under cross-examination he claimed that he was indeed driving a taxi in the Gambia at the age of 14. He alleged that he obtained a driving licence by showing the Gambian authorities his passport, which had a false age on it, and that he met Linda nearly a year before he came to the UK and she gave him money which, together with money that other tourists gave him, he was able to save in order to travel. His formal witness statement gave an account of his relationships with Linda and with Caroline Gunn, with whom he said he had been living for over two years, as well as his alleged homosexual relationship with the German man he met on (or by) the beach.
14. C was transferred to Harmondsworth Detention Centre on 24^th November 2012. It is unnecessary for the purposes of this judgment to repeat the detailed history set out in Hayden J's judgment about what happened whilst he was there.
15. The FtT dismissed C's appeal against deportation on 21 May 2013. They considered that credibility was the fundamental issue in determining the appeal, and in a long and detailed determination they reached the conclusion that his claim to be at risk on return to the Gambia because he is bisexual lacked any real credibility. The tribunal was not persuaded by his excuses for failing to claim asylum on his arrival, if, as he alleged, that was the real reason why he came to the UK. He had told them that he was scared because people told him that he would be sent back. The tribunal did not believe him. They said: "He speaks perfect English and clearly had access to the Internet because he refers to finding partners online. We find that he could have obtained legal advice as to how to claim asylum if he had wanted to do so." They went on to find that the damage to his credibility which naturally followed from his immigration history was substantial; it was "quite plainly difficult to believe anything he says".
16. Those adverse credibility findings were made even before the FtT went on to consider the rest of C's evidence, which reinforced their view. At paragraphs 24 to 26 of the determination they examined the evidence as to his date of birth, his use of a false name, his account of what allegedly happened in the Gambia before he came here and his account of how he spent his time in this country. They found the suggestion that he was born in 1993 to be particularly lacking in credibility, because it would have meant that he was under 14 at the time that he was working as a taxi driver in the Gambia. They did not find it credible that he was able to lie successfully about his age to the Gambian authorities in order to obtain a passport and a driving licence, or that the entry clearance officer in the Gambia who interviewed him for his visa would have thought that he was 29 years old when in fact he was 14. They also said that the fact that he had given five different dates of birth at various times "demonstrates unequivocally that he is an habitual liar and that his evidence cannot be relied upon". They went on to find that whilst there was some evidence corroborating his account of his relationship with Linda Firth, and he had been reasonably consistent as to his relationship with Caroline Gunn, his evidence as to his having had homosexual relationships was "vague and lacking in any credible detail".
17. The FtT did not refer specifically to C's account of having been beaten by his brother, to the scarring that he told the interviewer at his screening interview had been caused by the beating with the iron bar and the blow to his face, or to the further beating alleged to have been administered by his family which led to his going into hospital for two days. It is that evidence which is central to the fresh asylum claim.
18. No medical evidence had been adduced before the FtT. On 6 July 2013, at a time when he was ostensibly on hunger strike, Dr Naomi Hartree conducted a medical assessment of C, and on 16 July 2013 she produced a detailed report. For the purposes of the "fresh claim" C seeks to rely on the aspects of that report which he claims to be independent evidence of torture or of ill-treatment at the hands of his family on account of his sexuality.
19. Although Hayden J was justifiably critical of those aspects of Dr Hartree's report which related to C's fitness for detention and his food and fluid intake, and he held that she lacked impartiality, as demonstrated by the lengths to which she went to explain away C's weight gain at a time when he was supposed to be starving himself, there is nothing in the section of her report dealing with the scars on C's body that suggests a similar lack of objectivity, despite her explaining away the discrepancies between the history he related to her and to others on the generalised basis that trauma survivors very commonly do not give full or identical accounts of their ill-treatment in every interview. On behalf of the SSHD, Mr Waite very properly refrained from criticising the doctor's independence, or her qualification to express the opinions that she does on the scarring.
20. Dr Hartree has applied the Istanbul Protocol, and she has explained her findings by reference to diagrams illustrating where the scars are to be found. In summary, she found that all the scars on C's body were more than six months old but that it was not possible to date them more accurately than that. One scar on his lip, attributed by C to being beaten on the occasion that his family discovered his sexuality, was described as "typical of an injury caused by assault with a sharp or blunt object or of a punch with a fist." "Typical", in this context, means "an appearance that is usually found with this type of trauma, but there are other possible causes." Dr Hartree goes on to explain why in her opinion that injury is unlikely to have been caused by an accident.
21. Two other scars specifically attributed by C to being beaten by his family when they discovered his sexuality were described by Dr Hartree as "highly consistent" with having been caused by an assault in the manner in which C claimed he was assaulted, including being hit with an iron bar or with a cord, whip or rope, and with the resulting injuries having been treated in the manner which he described. "Highly consistent" is defined in the Istanbul Protocol as meaning that "the lesion could have been caused by the trauma described, and there are few other possible causes".
22. Other scars were "consistent" or "highly consistent" with assault, including in some cases the childhood beatings to which C ascribed them, although Dr Hartree explained that there were other credible causes for the scarring, including, in some instances, an accident. "Consistent" means that "the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes". None of the scars attributed by C to beatings, whether in childhood or on account of the discovery of his sexuality, was described by Dr Hartree as "diagnostic" which means "this appearance could not have been caused in any way other than that described."
23. The doctor concluded that there was nothing in the overall clinical picture to suggest a false allegation of mistreatment. The scarring was widely distributed over various parts of the body, in locations which would be difficult to self-inflict and which she said was unlikely to be accidental. Her view was that C has scars whose patterns and appearance closely reflect his account of the assaults he alleged, and the subsequent treatment of the wounds he described.
24. Both Dr Hartree and a consultant forensic psychiatrist, Dr Jan Vermeulen, who examined C in November and December 2013, (when he was no longer detained) and spoke to him on several occasions on the telephone, also expressed the opinion that he was exhibiting symptoms of post-traumatic stress disorder ("PTSD"). Consistently with the views of the FtT, and unlike Dr Hartree, Dr Vermeulen found C to be an unreliable historian who gave a vague account of himself. Nevertheless, on carrying out cross-checks of the various accounts that C had given of the physical abuse which caused the trauma, he found no significant discrepancies between the statements that C had made to Dr Vermeulen himself on various occasions, and the statements he had made to others, including Dr Hartree, Dr Quinn (the psychiatrist who assessed him in prison in August 2012 and first diagnosed his schizophrenia), to a mental health nurse, and to the interviewing officer at his September 2012 screening interview. In short, Dr Vermeulen was of the view that, since claiming asylum for the first time in 2012, C has given various people, including other medical professionals, a largely consistent account of being severely beaten by members of his family at the age of 14 because they came to learn of his homosexual orientation, and of being beaten by them for disciplinary reasons on other occasions during his childhood.
25. Dr Vermeulen concluded that C was not feigning symptoms of PTSD, as he did not have sufficient detailed knowledge about trauma-related symptoms to be able to do so. His presentation during interview gave rise to genuine cause for concern (consistent with the type of trauma that might arise from such ill-treatment). In paragraph 9.9 of his first report Dr Vermeulen says that C's "flexible age" has little bearing on the opinions he has expressed about C having suffered severe trauma, and that there are no objective grounds to doubt his account of ill-treatment, "however, the beatings he received from his family may have occurred five to ten years before his arrival in the UK, rather than earlier that year."
26. Two further matters have been relied on by Ms Hirst as independent evidence capable of corroborating C's claim to be homosexual or bisexual. The first is that when Dr Vermeulen (to whom C had identified himself as homosexual, rather than bisexual in orientation) rang C unexpectedly one evening he "awoke him and a male companion". The short answer to that is that Dr Vermeulen is an independent expert, not a witness of fact, and even if he were permitted by a tribunal to fulfil both roles, there is no reason to conclude on the basis of that evidence that the other male was a sexual partner. C was living in asylum support accommodation in Glasgow at the time; he is unlikely to have been the only male asylum seeker sleeping on those premises.
27. The second piece of evidence is a witness statement by a lady named Manjiki Trawally who lives in Kent, and who claims to be a distant cousin of C (she says they have a great-grandfather in common). Ms Trawally states that she came to the UK from the Gambia on 18 August 2002, aged 20 – that is, five years before C arrived. She says she has had no direct contact with C since she left the Gambia. Her evidence is that some years ago, before her mother passed away in 2012, they had a telephone conversation in which her mother told her that the family had found out that C was homosexual, that his brothers had beaten him and that he had left the family home. She also states that C was born in 1993 and that she remembers this because he is nearly the same age as her sister Fatou, who was born on 8 February 1993.
28. Quite apart from the timing of this statement (it is dated 2 February 2015) and its obvious self-serving nature, the witness is unable to give any evidence from her own knowledge of him that C is homosexual or bisexual. Moreover, she supports his claim to have been aged 14 when he arrived in the UK. Thus she corroborates an account that would require him to have duped the entry officer in the Gambia into believing he was a 29 year old taxi driver who wished to visit his fiancée, and at the age of 13 to have successfully deceived a married woman in her forties into embarking on an affair with him, providing him with money to travel to the UK, and later, (notwithstanding that he had subsequently told her of his sexual orientation) believing that he was going to marry her. That account was disbelieved by the FtT for wholly understandable reasons. Nevertheless Ms Hirst submitted that the decision maker was wrong to be dismissive of this witness statement as evidence on which a fresh tribunal might rely so as to reverse the unfavourable view initially taken of C's uncorroborated evidence.
29. Although this claimant presents as a thoroughly undeserving, mendacious and manipulative individual, and he is a persistent offender, it is important to bear in mind that the law exists to protect everyone equally, and it must be applied with absolute impartiality. The Court must not allow an unfavourable impression of him or of his behaviour to influence its approach to this judicial review. If the evidence meets the fresh claim test, then C is entitled to have his appeal considered by a fresh tribunal.
30. The SSHD must apply the law and her policy consistently. This means that a decision-maker considering evidence in support of a fresh claim for asylum has to be scrupulous about examining the evidence in question with the requisite degree of "anxious scrutiny," however sceptical about it he or she may be. True it is that C appears to be willing to go to almost any lengths to avoid going back to the Gambia, but that is as consistent with a genuine fear of return as it is with playing the system in order to remain in the UK, as Mr Waite very fairly acknowledged.
31. I will come back to the history of C's behaviour after his discharge from hospital in July 2013 when I turn to consider the claim for wrongful detention, but it has no bearing on the fresh claim for asylum/humanitarian protection, to which I now turn.

THE CHALLENGE TO THE DECISION OF 6 FEBRUARY 2015

32. The test for the decision-maker considering whether there is a "fresh claim" under paragraph 353 of the Immigration Rules (HC395) is whether there is a real (as opposed to fanciful) prospect that a fresh tribunal, equipped with the previous evidence and the new evidence (viewed holistically) would conclude that C has overcome the modest threshold of establishing that he faces a real risk of being persecuted or subjected to ill-treatment on his return. The decision must be informed by "anxious scrutiny" of the material, because decisions of this nature, if made incorrectly, may lead to the applicant being subjected to persecution or ill-treatment on his return: see WM (DRC) v SSHD [2007] Imm AR 337, [2006] EWCA Civ 1495 per Buxton LJ at [7].
33. The SSHD accepted for the purposes of this claim that, if the FtT were to conclude that C was actively gay or bisexual, he would be able to establish the existence of a real risk for the purposes of the Refugee and Human Rights Conventions. No suggestion to the contrary had been made in the decision letter. Thus the central issue for any fresh tribunal, as it was for the original tribunal, would be whether C is telling them the truth about his sexuality.
34. The question for this Court is whether the decision that the asylum appeal has no real prospect of success before a fresh tribunal is Wednesbury reasonable: MN (Tanzania) v SSHD [2011] 1 WLR 3200. Part of that evaluation involves the Court examining whether the decision was informed by a proper assessment of the fresh evidence taken together with the original evidence. Ms Hirst submitted that the SSHD's approach, in dismissing the fresh evidence on the basis of previous adverse credibility findings, was contrary to the guidance of the Court of Appeal in R (Mibanga) v SSHD [2005] EWCA Civ 367 and therefore there was a material error of law. She also contended that it was irrational on the facts, in that no reasonable decision-maker could decide that the fresh evidence "which went directly to the heart of C's asylum claim" had no realistic prospect of persuading a future tribunal to re-evaluate his credibility and reach a different conclusion about it.
35. Mibanga is a case in which the SSHD and the adjudicator (the equivalent at that time of the FtT) had rejected the appellant's account of having been detained and tortured by rebel forces in the Democratic Republic of Congo. The Court of Appeal held that the adjudicator had erred in law in the way in which she had conducted the requisite fact-finding exercise. She had not looked at all the evidence in the round, as she should have done, but had examined the non-medical evidence first, determined that the appellant's account was incredible, and only then considered whether the medical evidence resolved any of the doubts she had expressed on the credibility of fundamental aspects of his claim. The court held that where a medical report is specifically relied on as a factor relevant to credibility, the proper approach for the adjudicator is to deal with it as an integral part of the findings on credibility, rather than just as an add-on which does not undermine the conclusions to which he would otherwise come.
36. It is hardly surprising that the Court of Appeal took the view that it did in that case, where the medical evidence in question supported the appellant's account of having suffered torture by the application of electrodes to his genitals. Ward LJ agreed that experts cannot usurp the fact-finder's function in assessing credibility, but they can offer a factual context which may prove a crucial aid to the decision whether or not to accept the truth of the asylum-seeker's account. He said, at paragraph 24:

"What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence."

37. Mibanga was not a fresh claim case, but a case in which the adjudicator of the original claim did not look at all the evidence holistically when deciding whether or not to accept the appellant's account. Whilst it is right that, in a fresh claim case, all the evidence must also be viewed in the round, the SSHD may be entitled to reject representations based on new medical evidence as a fresh claim, notwithstanding that the evidence in question appears both independent and credible, if it is fanciful to suppose that when taken together with the other evidence it will disturb fatal findings that have already been made about the appellant's credibility.
38. Mr Waite referred by way of example to the recent case of RB (Sri Lanka) v SSHD [2015] EWHC 813 (Admin) in which the appellant had sought to rely on a further medical report to supplement the deficiencies in the medical evidence he had originally adduced before the FtT as corroboration of his account of being tortured. The judge found that the new medical report was thorough, comprehensive and properly compiled, and that it was compliant with the requirements of an expert and with the Istanbul Protocol. The doctor had concluded that the medical evidence in support of the appellant's account was "compelling". Nevertheless the judge held that the fresh evidence, taken in the round with all the earlier evidence, did not give rise to a realistic possibility of reversing the adverse credibility findings of the original tribunal.
39. On the facts of that case, this was because an analysis of the fresh medical evidence compounded the appellant's credibility difficulties rather than neutralising or explaining them. Although it rectified the defects identified by the tribunal in the original medical evidence, it could not begin to explain away the appellant's own evidence. Ms Hirst sought to distinguish the decision on the basis that the fresh medical evidence conflicted with the appellant's evidence in a material respect. That is true, but in principle the same reasoning must apply in a case where, on the facts, the medical evidence fails to neutralise or explain away serious credibility difficulties that are entirely unrelated to the parts of the appellant's account that it potentially supports. If there is no realistic chance of the fresh evidence, when it is taken into account with all the other evidence, causing a tribunal to reach a different assessment of the appellant's truthfulness on the essential aspects of his claim, the requirements of the rules are not met.
40. In the present case, the official making the decision on behalf of the SSHD, Ms Alison Cousins, cited and applied the correct legal test for fresh claims. She noted that Dr Hartree's report "relies heavily on the account given to her by [C]". By reference to the case of AE FE (PTSD-Internal Relocation) Sri Lanka [2002] UKIAT 05237 Ms Cousins said that "although that does not mean the report lacks status as independent evidence, it may reduce very considerably the weight that can be attached to it." She went on to refer to the rejection of C's account and evidence by the original FtT and stated that "it is right that considerable weight should be attached to the findings of an expert Tribunal". She said that she did not regard Dr Hartree's suggestion that discrepancies in the accounts of asylum seekers are not uncommon as a viable explanation for the "deliberate and repeated" lies told by C about his age or identity, and concluded that there was no realistic prospect of a second Tribunal reaching a different assessment of C's credibility on the basis of the doctor's generalised comments.
41. Ms Cousins stated that in reaching her decision, account was taken of the medical evidence that C had injuries that are or might be consistent with his account of ill-treatment. However, she went on to say that the marks could equally be consistent with accidental injuries or even injuries arising from altercations for different reasons, including fights for reasons other than those suggested by C (whether in the UK or the Gambia). She made what appears to me to be the entirely fair comment that "although some of the injuries may be consistent or highly consistent with injuries sustained as a result of being beaten and/or fights, Dr Hartree is unable to comment on the reasons behind the beatings/fights."
42. Ms Hirst submitted that this was an unfair characterisation of Dr Hartree's evidence and indicative of a failure by Ms Cousins to scrutinise the medical evidence with the requisite degree of care. Dr Hartree's report was not dependent upon an uncritical acceptance of C's factual account. Instead Dr Hartree made a properly objective consideration of whether C's scarring did or did not tally with his account to her of how he came by each of his injuries, and she noted further physiological symptoms to which C had not referred which were also consistent with his having been severely beaten, (the mottled hyperpigmentation on his lower back).
43. Ms Hirst submitted that Dr Hartree did not accept that there were equally plausible alternative explanations for all the scarring, but only for some of it; on the contrary, the doctor said that the scars denoted as "typical" or "highly consistent" with C's account of how he came by them in the course of the beating when his sexuality was allegedly discovered by his family, were highly unlikely to have been caused accidentally or self-inflicted, and in each case she gave reasonable explanations for that opinion. Ms Hirst also submitted that Ms Cousins had failed to regard as significant, and as potentially lending additional support to C's credibility, the fact that he attributed some of his scars to earlier childhood beatings wholly unconnected with his family's discovery of his sexuality, or to other causes, such as injuries sustained in the course of running away from a beating.
44. Mr Waite submitted that this was not an example of a Mibanga type error but of the decision-maker properly considering how a fresh tribunal would approach the fresh evidence (both medical and factual) in the light of the decision of the earlier tribunal. On a fair reading of the decision, he submitted that Ms Cousins plainly considered the evidence holistically. He pointed out that in its approach to the earlier adverse findings on credibility, the fresh tribunal would apply the guidelines in Devaseelan [2002] UKIAT00702 which have been endorsed by the Court of Appeal on a number of occasions, including in R (YH) v SSHD [2010] EWCA Civ 116 at [13]-[14]. Ms Cousins made express reference to this approach at one point in her decision when she said that there was "no realistic prospect of a second Immigration Judge, applying the Devaseelan principles, reaching a different assessment of [C's] credibility on the basis of Dr Hartree's generalised comments."
45. The Devaseelan guidelines make it clear that although the first tribunal's findings are not binding on the later tribunal, the earlier decision should always be the starting point for consideration, and the later tribunal will be slow to depart from the findings made on that occasion (unless there is good reason for doing so) especially where the facts relied upon remain the same. Mr Waite relied in particular on guideline (6):

"If before the second Adjudicator the appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated."

46. In this case the medical evidence supports, or is at least capable of supporting C's account of being severely beaten, and indicates that he has been seriously traumatised by that experience. Mr Waite pointed out that despite this, the factual account of why, when and by whom C was beaten, of his alleged homosexual (and heterosexual) relationships, of his true age, of how he came to the UK, and his explanation for why he delayed in claiming asylum, would remain the same. The evidence before the tribunal which went to those matters would also be essentially the same as that available to C at the time of the first hearing, apart from the hearsay evidence of Ms Trewally to which, Mr Waite submitted, no tribunal could be expected to attach any weight even if she turned up at the hearing to be cross-examined.
47. Ms Hirst accepted that the new tribunal would follow the Devaseelan guidelines, and that in general terms evidence that an appellant could have obtained and put before the first tribunal will be treated with circumspection by the second – "great circumspection" when it is evidence of facts personal to the appellant (guideline (4)). However she pointed out that guideline (5), which relates to cases in which reliance is placed on other facts besides facts personal to the appellant, makes it clear that such facts may not suffer from the same concerns as to credibility, although they should still be treated with caution. She drew the Court's attention to paragraph 38 of the judgment of the Court of Appeal in LD (Algeria) v SSHD [2004] EWCA Civ 804 in which expert evidence was treated as falling within this guideline. Although Ms Hirst acknowledged that C could be said to have chosen not to put independent medical evidence before the FtT at the hearing of his appeal, she submitted that Dr Hartree's and Dr Vermeulen's evidence was not in fact available until after that hearing because they had not yet examined him.
48. I do not consider that guideline (5) has any significant bearing on the present case, though of course I accept that expert evidence which an appellant could have obtained in support of his original appeal but only obtains after the appeal has been dismissed, is of a different character to "fresh" evidence given by the appellant himself or by a witness of fact. The real point here is that once the medical evidence is added to the other evidence, it is not enough in and of itself to demonstrate the real risk of torture or ill-treatment on return for the reasons claimed by C. The tribunal would still have to evaluate the truthfulness of C's own evidence, taking into account the aspects of the medical evidence which support the credibility of his account of how he came by the injuries on which he relies. There is force in Mr Waite's submission that it was right for Ms Cousins to assume that the fresh tribunal would direct itself in accordance with guideline (6) when it carried out that evaluation, and that she was entitled to take the view that Dr Hartree's general comments about how asylum seekers behave would not afford a sufficient reason for the fresh tribunal to depart from its previous adverse findings on credibility.
49. I accept Mr Waite's submissions that on a fair evaluation of the decision under challenge Ms Cousins did not make the error of law identified in Mibanga but asked herself, correctly, how the fresh tribunal would approach the new evidence and the original evidence, taken as a whole, in accordance with the Devaseelan guidelines, and whether in the light of that likely approach, there was a real prospect of success. In order to succeed in this aspect of the claim for judicial review, therefore, C has to show that the decision was Wednesbury unreasonable, which as Ms Hirst recognized, on the facts of this case really means irrational or perverse.
50. Ms Hirst submitted that once the independent medical evidence and the evidence of Ms Trewally was added to the evidence before the original FtT, no reasonable decision-maker could conclude that the prospects of a fresh tribunal reaching a different view of the credibility of C's claim, particularly his claim to be homosexual or bisexual, were fanciful. Attractively though Ms Hirst's submissions were put, I cannot accept them.
51. At the heart of the criticism of the rationality of the decision is the proposition that the reasoning of Ms Cousins depends on the flawed premise that, because C's credibility has been wholly undermined, medical evidence which depends wholly or partly on assuming the truth of what C has said cannot logically assist. That is how Jay J. described C's argument when granting permission to seek judicial review. However, on closer examination it is apparent that the decision does not depend on that premise at all. This is not a case in which what is being said is that credibility, once lost, is incapable of being retrieved when it is revisited in the light of further evidence. Nor is it a case in which the decision maker has unfairly or illogically concluded that there is no prospect of the second tribunal accepting the medical evidence, or of treating it as independent, just because it depends wholly or partly on the truth of C's account. That approach would have been flawed because it begs the question of whether the medical evidence would have had a bearing on the acceptance of that account if the first tribunal had seen it.
52. On the contrary, Ms Cousins was making the valid point that, whilst the medical evidence is capable of affording some corroboration of C's account that he was beaten by his family in the manner he described, it remains the case that the only direct evidence of who beat him, when they beat him, and why, emanates from C himself. The medical evidence cannot realistically make a radical difference to the assessment of C's credibility on the key issue of why he suffered those injuries, since the fatal damage to the credibility of his claim to be bisexual was caused by aspects of his evidence that are unconnected with his account of how he came by those injuries, on which the medical evidence about the scarring has no bearing.
53. In assessing whether the fresh evidence test is made out, the reasonable decision-maker can only have regard to the specific claim for asylum or humanitarian protection that is being advanced, and the facts that are relied upon by the asylum-seeker in support of it. In this case, C's claim to be homosexual or bisexual is integrally bound up with his account of having come to this country at the age of 14 (or possibly 15) having suffered serious physical abuse at the hands of his family on account of their discovery of his homosexual orientation, which forced him to leave home and live rough on a beach for around a year until he saved enough money to travel. It is not a claim that he was physically abused as a teenager but did not leave the Gambia until five or ten (or even fifteen) years later. If that were the case, he would have to explain how he managed to avoid suffering further injuries despite remaining in the Gambia for that further lengthy period. Nor is it a claim that he was beaten up by his family at the age of 28 or 29, which would raise other avenues of inquiry.
54. The tribunal who saw and heard C did not regard him as a credible witness for reasons unconnected with his account of how he came by the scars; in particular, his lies about his age, his considerable delay in claiming asylum, their rejection of his explanation for that delay, and his adoption of a false identity. The question for the decision maker, therefore, was whether it was realistic to suppose that the emergence of medical evidence that is consistent with his account of how he came by his scars, (but also, as Ms Cousins points out, equally consistent with his having been badly beaten up for some entirely different reason either by his family, or by others at some different time, even possibly in the five years after his arrival in the UK) would give rise to a different evaluation of the credibility of his evidence taken as a whole.
55. Both the original tribunal and the fresh tribunal would be considering exactly the same evidence given by C regarding his sexuality. They would have the same history of two established long-term sexual relationships, both with women in their forties, one of which lasted for at least two years and incepted several years after he first came to the UK, the other which was said by him to have lasted for over a year before he arrived here, starting when he was 13 years old, and to have been serious enough to give rise to expectations of marriage on the part of the woman, but only what was described as "vague evidence" from C himself of sexual encounters with other men, uncorroborated by any male sexual partner.
56. On a fair reading of the decision, I find that Ms Cousins did look at all the evidence with the appropriate degree of care. She reasonably concluded that taking the material, old and new, as a whole, any appeal based on it would be bound to fail. Although when addressing the evidence of other potential causes of the scarring Ms Cousins has arguably failed to draw a clear distinction between the scars found by Dr Hartree to be either "typical" of or "highly consistent" with C's account of how he came by them, and others which were found to be merely "consistent", I do not consider that this undermines the validity of her conclusions or points to a failure to afford anxious scrutiny to the medical evidence. In particular it does not detract from the legitimacy of her conclusion that even if the medical evidence is consistent or highly consistent with the injuries in question being caused by a beating or in a fight, it sheds no independent light on who inflicted them or why.
57. Ms Cousins was entitled to take the view that the general observation by Dr Hartree that asylum seekers are often unreliable historians would not be regarded by a new tribunal as a sufficient or satisfactory explanation for C's lies about his age and identity (which, it goes without saying, the medical evidence about his scars and the diagnosis of PTSD would not explain). As she pointed out, an experienced immigration tribunal can draw on its own experience of how asylum seekers give evidence in relation to their experiences. No doubt that is what the original tribunal did; but unlike Dr Hartree, it had the advantage of seeing C's evidence tested in cross-examination and against objective evidence such as the visa applications, and the records of what Linda had said to the immigration authorities after he first absconded.
58. The hearsay evidence from Ms Trawally as to the reasons given by her deceased mother in an alleged telephone conversation some years previously as to why C left the family home, at best duplicates his own account, but its credibility is seriously undermined not only by its timing and general vagueness, but by its express corroboration of his current evidence as to his age which the original tribunal disbelieved. Indeed she bolsters his claim to have been born in 1993 by reference to her own sister's date of birth. Ms Cousins was entitled to take the view that it was fanciful to expect a fresh tribunal to place any weight on that evidence as supporting C's alleged sexual orientation, and that it could not possibly be treated as outweighing all the other factors pointing towards C's story being a total fiction. The fresh evidence goes nowhere near explaining how a boy in his early teens could have fooled the Gambian authorities who issued him with a passport and driving licence, a police officer who arranged the issue of the passport, the entry clearance officer or officers who interviewed him personally, and a mature married woman with whom he claims he conducted an affair for over a year, into believing he was in his late twenties or old enough to get married.
59. Neither of the medical experts appears to have been asked to consider C's true age, which was and is an integral and essential part of his claim for asylum and which, as Mr Waite submitted, cannot be divorced from it. Dr Vermeulen rightly observes that C's inconsistent/unreliable narrative in respect of his age has no impact upon the objective medical evidence that the scarring and his symptoms of PTSD are consistent with his account of severe ill-treatment by beating, but he does raise the possibility that the beating(s) occurred many years before C travelled to the UK, instead of months beforehand. That does not help C's cause; indeed on one view it seriously undermines it, though that was not a point taken by Ms Cousins in the impugned decision.
60. C's own account of how he came by other scars indicates that he was or may have been subjected to beatings by his family during childhood for reasons wholly unrelated to his alleged sexuality. Even if a new tribunal might be prepared to accept that he was also subjected to violence at the hands of his family when he was a teenager, that falls a long way short of establishing that this inevitably leads to the conclusion that there must be a more than fanciful prospect of a new tribunal accepting that he is bisexual, in the light of the fact that the fresh evidence does not impinge upon the compelling reasons for the adverse credibility findings made, especially on that aspect of his evidence, the first time round.
61. In summary, a reasonable decision-maker applying the correct legal test to the evidence taken as a whole would be entitled to reach the conclusion that it is fanciful to suppose that the fresh evidence would cause a new tribunal to take a different view of C's overall credibility, particularly as regards his claim as to his sexual orientation. I am therefore unable to accept that the decision under challenge was Wednesbury unreasonable. On the contrary, it fell comfortably within the ambit of decisions reasonably open to the SSHD on affording anxious scrutiny to the fresh evidence (medical and factual) considered together with the evidence adduced before the original FtT. Frankly, it is difficult to envisage the properly directed decision-maker reaching any other conclusion on the facts of this case.
62. Therefore, even if I had been persuaded by Ms Hirst that Ms Cousins fell into error in her understanding of what the medical experts were saying, or mischaracterised that evidence in her decision, or that her reasoning was logically flawed, or that she did not look at the evidence holistically or afford it anxious scrutiny (which, for the reasons I have given, I was not), I would not have exercised my discretion to grant relief. It would have served no useful purpose to quash the decision on the basis that the approach taken was legally flawed, if a decision taken adopting the correct approach would produce exactly the same result, as it would (and, in my judgment, did). The challenge to the 6 February decision therefore fails.

THE CLAIM FOR WRONGFUL DETENTION

63. I now turn to the claim for wrongful detention. The burden of proof lies on the SSHD to prove the legality of detention throughout the period in question: R (I) v SSHD [2003] INLR 196 at [28]. There was ample justification for placing C in immigration detention in November 2014 pending his removal from the UK; not only had he failed to report after his release from detention on the first occasion, but he had committed further criminal offences, of a nature likely to cause harm to the public. He was found in possession of class A drugs again and he was violent. The likelihood of his absconding was very high, given his proven determination to avoid deportation at all costs and the fact that he knew his removal was imminent. On a number of previous occasions he had refused to co-operate with Emergency Travel Documentation interviews. However by the time he was detained the second time, the necessary travel document had been obtained. Although in the event the document expired during the second period of his detention, it would be possible to obtain a new one in a matter of days rather than weeks.
64. A few weeks after he was detained, on 8 December 2014, C jumped from a third floor balcony in Barlinnie prison in an apparent suicide attempt, and broke his ankle. He was transferred to hospital for treatment. I should add, in parenthesis, that the evidence in this case (including a more recent report from Dr Vermeulen dated 14 April 2015 which assesses him as being at a moderate risk of suicide, whether or not he is detained) falls a long way short of establishing that Article 3 ECHR would be engaged by reason of his threats to commit suicide on account of a subjective fear of return to the Gambia. That was an argument that was raised at one point, but the SSHD was entitled to reject it, and her decision that Article 3 is not engaged is not seriously open to challenge.
65. On 9 December 2014 C's application to revoke his deportation order was refused by the SSHD and the decision was purportedly certified under s.94(2) of the Nationality, Immigration and Asylum Act 2002. For reasons that I need not dwell upon, that decision was ultra vires (as Mr Waite accepts) and it was ultimately superseded by the decision of 6 February 2015. In the interim, proceedings for judicial review of the earlier decision had been issued on 17 December 2014. That claim was later amended to challenge the 6 February decision. Pursuant to an earlier agreement with C's solicitors that removal directions would not be set if he sought judicial review, removal directions (initially set in apparent ignorance of that agreement) were cancelled on 19 January 2015.
66. On 6 January 2015 C was convicted of possession of a controlled drug (Class A) and two counts of behaving in a threatening or abusive manner likely to cause a reasonable person to suffer fear or alarm. Those further offences had been committed during the period after he had been released from detention following his "hunger strike". He still has not been sentenced for those offences. The sentencing hearing has been postponed several times.
67. C's detention during the period with which I am concerned was periodically reviewed in accordance with the SSHD's policy, and on each occasion the decision was taken to maintain detention, broadly for the same reasons, namely that given his past history and ongoing conduct there was a high risk of absconding, a high risk of re-offending and a high risk of harm to the public. Removal was reasonably in prospect; the decision-maker always properly considered the impact of various legal challenges on the likely timescale. His medical condition was also properly taken into consideration, although it took some time for the SSHD to gain access to his medical records relating to his custodial detention. This was because C initially refused to permit the immigration authorities to have such access, and the records were eventually obtained through his solicitors.
68. The evidence adduced in this case satisfied me that C's mental health issues were being adequately managed throughout the period whilst he was in detention. Barlinnie prison had reported that whilst he was on high risk for a few days in early November due to outside parties raising concerns about his mental state, that status was reduced to "no apparent risk" on 4 November 2014. The evidence indicates that he was undergoing sessions with the psychiatrist and on alcohol awareness. After his medical records were obtained on 4 February 2015, the authorities had all the information they needed to know about the nature and dosage of the medication that he required, and throughout the remaining period of his detention, his mental health was considered to be under control with the prescribed medication.
69. An application for temporary release submitted on 17 December 2014 was refused, not only because of the very high risk of his absconding or committing further criminal offences but because the bail address that was provided to the authorities turned out to be temporary, and thus unsuitable. On 14 January 2015 C was transferred from prison back to Harmondsworth. Bail was refused by an Immigration Judge on 20 January. However, following the grant of permission to bring this claim for judicial review at an oral hearing on 15 April 2015, C was released with reporting restrictions. On 2 May 2015 he was arrested for breach of the peace. As I have already mentioned, he currently awaits sentencing for possession of a controlled drug (Class A) and behaving in a threatening manner likely to cause a reasonable person to suffer fear and alarm. I was told by Mr Waite that he is also facing trial in Edinburgh in January 2016 in relation to a separate matter, though I had very little information about that.
70. The Secretary of State's power to detain and her detention policy are described in detail in the judgment of Burnett J (as he then was) in EO and others v SSHD [2013] EWHC 1236 (Admin) at [13] to [18],which also sets out the text of the relevant rules. It would serve no useful purpose for me to repeat that description here; I simply adopt what is said in that judgment. Likewise, I adopt without repetition Burnett J's masterly analysis of the leading authorities in paragraphs [21]-[46]. If the SSHD departs from her own policy, it may render detention unlawful if the requirement of the policy in question is material to the decision to detain, whether the requirement of the policy is substantive, or whether it is procedural, such as the requirement to carry out monthly reviews of a detainee's detention.
71. C fell within Chapter 55.3A of the SSHD's Enforcement Instructions and Guidance ("EIG") because he was a foreign national offender who not only met the criteria for consideration for deportation, but who had been convicted of a more serious offence (being concerned in the supply of Class A drugs). The application of the guidance in Chapter 55.3 to C weighed heavily in favour of his detention.
72. Chapter 55.8A of the EIG concerns Rule 35 of the Detention Centre Rules 2001 which sets out requirements for healthcare staff at removal centres in relation to any detained person whose health is likely to be injuriously affected by detention, who is suspected of suicidal ideation, or for whom there are concerns that they may have been a victim of torture. The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those responsible for authorising, maintaining and reviewing detention. C was subject to Rule 35 on any view because of his mental health, but no matters of concern were raised about him by the medical professionals responsible for reporting on his condition in detention. In particular there was no Rule 35 report raising concerns by the doctors who examined him that he may have been a victim of torture. Unlike some of the cases considered in EO and others, this is not a case in which the medical evidence relied on resulted from a Rule 35 examination, but there are other aspects of the judgment in that case which are of wider relevance. I shall return to consider these in due course because they have a direct bearing on the claim for wrongful detention in the present case.
73. Ms Hirst very sensibly did not dwell on the ambitious submission that C's detention was contrary to Hardial Singh principles. It was not. On the evidence before the Court, the SSHD plainly intended to deport C once he had exhausted his legal avenues of challenge, and the period of his detention was reasonable in all the circumstances, bearing in mind the gravity of the risk of his absconding, committing further offences and causing harm to the public, which was not seriously disputed. There was, at all material times, a realistic prospect of his removal within a reasonable time.
74. Miss Hirst understandably focused her submissions on the alternative ground of challenge, namely, that C's detention was contrary to the SSHD's own policy as set out in Chapter 55.10 of the EIG (set out verbatim in EO at [8]). Chapter 55.10 identifies certain classes of people who are "normally considered suitable for detention in only very exceptional circumstances". It provides that in criminal casework cases, when the person concerned falls into one of those categories, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. For example, there may be cases where the risk of harm to the public is such that it outweighs factors that would normally indicate that a person was unsuitable for detention.
75. The classes of persons falling within Chapter 55.10 include those suffering from serious mental illness which cannot be satisfactorily managed within detention, and those where there is independent evidence that they have been tortured. The guidance states that if a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file.
76. In EO, Burnett J decided that "torture" for the purposes of detention policy has a wider meaning than that in Article 3 of the UN Convention on Torture. He held, at [82] that it means:

"any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind."

77. C did not fall within the category of "persons suffering from serious mental illness which cannot be satisfactorily managed within detention" because all the evidence available to the SSHD – and to the Court – pointed towards his illness being managed (and capable of being managed) satisfactorily during his periods of incarceration, even during the earlier period of detention when he was not compliant with taking his prescribed medication. I am fully satisfied that Chapter 55.10 was never engaged on that basis, despite Ms Hirst's attempts to persuade me otherwise.
78. However Ms Hirst also submitted that there was independent evidence that C had been tortured, namely, the reports of Dr Hartree and/or Dr Vermeulen, and that in the light of this evidence he should not have been detained, or his detention should not have been maintained once the SSHD had been afforded a reasonable opportunity to consider those reports. She submitted that there were no "very exceptional" circumstances to justify maintaining the detention in the face of such evidence.
79. In EO, at paragraphs [65]-[69], Burnett J referred to the decision of the Court of Appeal in R(AM) v SSHD [2012] EWCA Civ 521, in which it was held that a report by an independent medical expert on a claimant's scarring which complied with the Istanbul Protocol was capable of amounting to independent evidence of torture; each case inevitably would have to be considered on its own facts to determine whether the evidence provided did no more than repeat the claim to have been tortured, or provided additional objective evidence. There is a clear distinction between independent evidence and proof, and that must be borne in mind.
80. Burnett J held that the credibility of the complainant did not go to the question whether something amounts to independent evidence of torture; such evidence is necessarily something beyond the say so of the person concerned. If an objective finding by a suitably qualified doctor is consistent with that person's account of how he came by certain injuries, then it does provide the necessary degree of independent support for it.
81. However, Burnett J also held that credibility does come into the picture when the SSHD is considering whether or not very exceptional circumstances exist for justifying the detention under Chapter 55.10. At paragraph [69] he gave the following guidance, which I have found particularly useful in the present case:

"If the detainee falls within one of the categories listed the default position must be release. 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 …. 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 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."

82. In my judgment, applying the approach set out in AM and EO, Dr Hartree's report in respect of the scarring did constitute independent evidence of torture because it had some corroborative potential. Dr Vermeulen's initial report lends some further weight to this, by providing evidence that the source of C's mental health problems, specifically his PTSD, could be traced back to a severe beating or beatings of the type that he described.
83. It is incumbent upon the SSHD to consider whether Chapter 55.10 applies to the person who is (or who is to be) detained. In this case the SSHD undoubtedly took reasonable steps at all material times both prior to and during C's second period of detention to inform herself sufficiently about his mental health, so as to determine whether Chapter 55.10 was engaged on that account, despite the initial impediments to obtaining the necessary information about his medication. However, Ms Hirst submitted that there was no evidence that the SSHD considered the question whether her policy was applicable to C in relation to torture at any point prior to his detention on 21 November 2014. She reminded the Court that the burden of proof was on the SSHD to justify his detention. The minute of the decision to detain C in November 2014 to facilitate his removal (then scheduled for 15 December) makes no mention of independent evidence of torture.
84. Ms Hirst pointed to what she characterised as the telling absence of any witness statements from any of the responsible decision makers which might have explained or sought to excuse the failure to address Dr Hartree's report at the time when C was detained for the second time, or within a reasonable time thereafter (allowing for the consideration of the material and any countervailing factors). She relied upon R(Das) v SSHD [2014] EWCA Civ 45, particularly at [66]. In that particular case, which involved a detainee who was not an offender and who had mental health issues, the Court of Appeal held that the SSHD had failed to take reasonable steps either before or during the claimant's detention to inform herself sufficiently about the claimant's mental health so as to be able to make an informed judgment about whether the policy applied to her. It was emphasised that where someone does fall within Chapter 55.10 the SSHD must surmount a high hurdle in order to justify their detention. Ms Hirst also placed reliance upon the observations of Sales J at first instance, which Beatson LJ quoted with approval at paragraph [80], about the drawing of adverse inferences in a case where the SSHD elects not to call explanatory evidence in a claim for judicial review.
85. In evaluating the lawfulness of the decision to detain, and whether reasonable steps were taken by the SSHD to ascertain whether Chapter 55.10 applied to C, I must bear in mind that Dr Hartree's evidence was supplied to the SSHD in July 2013, during C's first period of detention – sixteen months before he was detained a second time. Dr Vermeulen's first report was only obtained some months after that, when C was still at liberty. Consequently it was not relied on at that stage as evidence engaging the policy under Chapter 55.10. Whilst it is true that the representations made by C's solicitors on 17 July 2013, shortly before the order was obtained for his release from the first period of detention, did make express reference to the policy in Chapter 55.10 both as regards torture and as regards the management of his mental health issues, that was with a specific view to getting him released from detention on that occasion. It is also fair to say that those submissions were chiefly directed towards his mental state and the impact upon his physical wellbeing of his refusal to take his medication, food and fluids. Once C's cynical ploy to ensure his release had succeeded, the independent medical evidence was relied on for a wholly different purpose, namely to persuade the SSHD to revoke the decision to deport, and to allow the fresh claim for asylum/humanitarian protection to proceed. A decision on that application was still outstanding at the time when C was detained the second time. It was finally made on 9 December 2014.
86. Does the failure by the SSHD to look afresh at the medical evidence, which at the time of C's detention was being relied on by C's solicitors for purposes unconnected with his detention, amount to a failure to take reasonable steps to ascertain whether Chapter 55.10 applied to him by reason of evidence of torture, which tainted the legality of C's detention from its inception? In my judgment, on the facts of this case, it does not. Matters might have been different if, for example, a court had already ruled that C's earlier detention infringed the policy in Chapter 55.10 on the basis of Dr Hartree's evidence. However, I do not consider that the obligation to make reasonable inquiries goes so far as to require the person making the decision to detain to ask whether the legal representatives of a prospective detainee whose evidence has been comprehensively disbelieved by a specialist tribunal have, at some time in the past, provided medical evidence that might constitute independent evidence of torture. Nor was there an obligation on the person dealing with the outstanding challenge to the deportation decision on behalf of the SSHD to ask herself the question whether the evidence relied on in support of that challenge might also amount to independent evidence of torture for the purposes of Chapter 55.10, and refer it to her colleagues dealing with the decision to detain, particularly if C's legal representatives had not yet done so.
87. It is not as if the officials responsible for C's detention were oblivious to the fact that he was potentially vulnerable, or treated him just like any other foreign criminal detainee; quite the reverse. They did take reasonable steps to find out if the policy applied to him. That was the purpose of the inquiries about his mental health and his medication. C was also made subject to the Rule 35 procedure in accordance with the EIG. The whole purpose of that procedure, as I have said, is to identify particularly vulnerable individuals who might otherwise go through the system unnoticed. Some time must be allowed for the examination of the individual and for the doctor to provide a report to those responsible for authorising that person's detention. C was identified as being appropriate for Rule 35 treatment, and consequently subjected to a procedure that might have been expected to identify factors bringing him within Chapter 55.10, but that process failed to do so. That was sufficient, in my judgment, to amount to the taking of reasonable steps to ascertain whether Chapter 55.10 was applicable to him, for whatever reason, before and at the time of his detention.
88. Ms Hirst submitted that, even if the SSHD could be forgiven for overlooking the independent medical evidence at the inception of C's detention on 21 November, it was specifically drawn to the attention of the SSHD by C's solicitors in a letter dated 3 December 2014 seeking his temporary release, in which specific representations were again made about the policy in Chapter 55.10. I agree that there is no legitimate excuse for the SSHD's failure to consider the evidence within a reasonable time after that letter was received.
89. It stands to reason that a decision maker must have a reasonable time to obtain and/or to assimilate any information or evidence about the detainee that would or might lead him to conclude that the detainee falls within one or more of the categories that would trigger the application of the policy under Chapter 55.10. How much time is needed will depend on the facts. For example, in the case of someone who is obviously a child, the evaluation can take place with little or no delay. However, sometimes further inquiries will be needed (e.g. if the person presents as an adult, but claims to be a child, or if the person presents with symptoms of a mental health problem but needs to be examined by a psychiatrist to evaluate its nature and seriousness and to decide whether it can be treated appropriately in detention).
90. In considering what would have been a reasonable time in the present case I again derive assistance from the decision of Burnett J. in EO and others v SSHD. The case has many similarities to that of EO, although in that case the independent medical evidence was produced for the first time after the claimant's detention. In EO the Rule 35 medical report had not provided independent evidence of torture and the UK Border Agency case worker had so found. However the subsequent independent medical report, rather like Dr Hartree's, had found scarring which was consistent with the history given by the claimant (which at times was vague). Burnett J held that the report was independent evidence of torture. He rejected the submission that an independent medical report should be considered as swiftly as a Rule 35 report, i.e. within two days after its arrival. At [101] he held that medico-legal reports of this nature require a good deal more time to digest than a Rule 35 report, and that case workers cannot be expected to drop everything to prioritise this work to the possible detriment of other detainees. He referred to the fact that in AM the Court of Appeal had held that a period of a fortnight to consider the report was reasonable, and said that such a time frame might be reasonable when the monthly review is not imminent; but what is reasonable depends upon the circumstances.
91. I note that the detention review which took place after the letter of 3 December was received (on, say, 4 or 5 December) was on 19 December 2014. That is approximately a fortnight later, and long enough for the question whether Dr Hartree's report amounted to independent evidence of torture to have been addressed and, if the conclusion were reached that it did, for the exploration of whether there were "very exceptional" circumstances justifying C's detention. Yet despite this, the SSHD's internal records and the records of C's detention reviews indicate that, by contrast with his mental health, which appears to have been of paramount concern, the question whether there was independent evidence of torture was not addressed until the monthly detention review on 13 February 2015. That was a clear breach of the SSHD's public law duty which was material to the lawfulness of his detention. His detention for the period from 19 December 2014 up to and including 12 February 2015 was therefore unlawful.
92. Ms Hirst pointed out that even then, the detention review on 13 February makes no specific mention of Dr Hartree's report. It does not expressly record "very exceptional circumstances" for C's continued detention in the section in where they should have been noted, which records that there are "none". However, the document has to be read in its entirety. In the lengthy and careful commentary which appears at the end, the reviewing officer, Mr Dudman, makes express reference to the categories of persons falling under Chapter 55.10. He addresses the risk of absconding and the risk to the public, and C's mental health. He makes the laconic statement that "it is not accepted Mr Drammeh has been tortured." He then goes on to record that the greater risk of absconding and the risk to the public outweigh the presumption on liberty (sic) and do amount to very exceptional circumstances. He concludes that although a judicial review is outstanding, weighing up the risk of harm [to the public] against the length of possible detention to decide the case, even if detention is prolonged [by the legal process] it is still within a reasonable timeframe considering the risk.
93. Although there is no witness statement from Mr Dudman, the comments that he has made in the report of C's February 2015 detention review only make sense in the context of an acceptance that Chapter 55.10 is engaged. The question whether there are "very exceptional circumstances" need only be addressed if the detainee is regarded as falling within one or more of the categories under Chapter 55.10. Given Mr Dudman's conclusion that C's mental health issues can be addressed by providing him with medication in detention, there is really no room for argument that he thought that Chapter 55.10 was engaged on the basis that C suffered from a serious mental illness which could not be managed satisfactorily within detention. The comments about torture are clearly part of a consideration of whether C's detention is justified under the policy, and necessarily imply an acceptance that there is independent evidence of torture. Whilst in an ideal world it would have been preferable to have identified that evidence, there was no obligation to do so. Mr Dudman came to the conclusion that there were very exceptional circumstances justifying C's detention.
94. Ms Hirst submitted that this decision was flawed in any event. "Very exceptional circumstances" must be circumstances over and above those which would justify detention in the first place (without the detainee having the added vulnerabilities which engage Chapter 55.10). By way of example, Ms Hirst referred to a risk that the detainee would kill or seriously injure a member of the public (mentioned in Das). She submitted that there was no risk of that magnitude here. C's offending was, for the most part, relatively minor. Mr Waite's response to this was that it is a fact-specific inquiry in any given case whether very exceptional circumstances exist. In this case, he submitted, the conclusion was justified. I agree.
95. Whilst I accept that "very exceptional" means something more than the factors that would justify detention in any case, such as a general risk of absconding or reoffending, the level of that risk and the detainee's history are plainly material. The guidance in Chapter 55.10 itself, and in the case of EO, points firmly towards this being a case in which the decision maker would not only be justified in reaching the conclusion that very exceptional circumstances existed here, but inexorably driven to that conclusion. Mr Dudman refers to the greater risk of absconding and to the fact that C has committed further criminal offences even knowing that he was subject to deportation. He finds that there is clearly a risk to the public, and recites that C has 11 convictions (which he describes) and has been encountered by the police for being a menace to young females and possession of cocaine. I am unable to accept that it was wrong in principle for Mr Dudman to conclude, on carrying out the complex balancing exercise, that the risk to the public was sufficiently serious to outweigh C's perceived vulnerability whilst in detention. C was a man with mental health issues who did not always take his medication, he had a pattern of offending whilst intoxicated by alcohol or Class A drugs or both, which involved threatening behaviour and the use of violence to a police officer, and he had been concerned in the supply of cocaine. He was highly likely to reoffend. There is also a reference in Mr Dudman's commentary to C's refusal of foods and fluids during his previous period in detention, and to his jumping off a balcony in prison, landing on a prison guard. That incident demonstrates at the very least a cavalier attitude to the safety of others in pursuit of a steadfast determination to avoid deportation.
96. Mr Waite submitted that it is highly unusual for someone to offend so rapidly and prolifically as soon as he is released from immigration detention. Indeed the soundness of the view taken of the likelihood of C's reoffending was proved by the fact that he committed further offences after his release in April 2015. Moreover, C plainly posed a higher than normal risk of absconding in the light of his pattern of behaviour to avoid deportation, which went far beyond simply failing to report when released under reporting restrictions. I agree with that assessment, which is reflected in Mr Dudman's comments. In EO Burnett J envisaged that there may be cases in which the extremely high risk of absconding would in and of itself justify a finding of "very exceptional" circumstances. In this case, that risk was coupled with the abnormally high risk of the commission of further criminal offences, and the high risk of harm to members of the public posed not only by the nature of the criminality but, as the unfortunate prison officer who broke his fall would no doubt attest, by C's determination to avoid deportation at any cost. As Mr Dudman observed in his comments at the time of the detention in November 2014, "subject is a multiple offender who continues to commit crimes whilst subject to a deportation order. Clearly the threat of deportation does not act as a deterrent and thus subject is a risk to the public."
97. There is also the further factor of credibility. As Burnett J said in EO at [69], the policy does not require the SSHD to release somebody from custody in respect of whom there exists independent evidence of torture, but also where it is clear that the claim is untrue. That is this case. Mr Dudman appears to have come to the conclusion that the torture claim was incredible or very unlikely to be true, hence his remark "it is not accepted Mr Drammeh has been tortured." That is hardly surprising given the findings made by the FtT described earlier in this judgment, and the legitimate rejection of the fresh claim by Ms Cousins on 6 February 2015 which pre-dated the February detention review. However even if that is putting too much of a gloss on Mr Dudman's remark in the absence of a statement from him explaining what he meant by it, there was ample justification for the finding of very exceptional circumstances on the other grounds stated in the document.
98. C's detention on and after 13 February 2015 until he was released in April 2015 was lawful. The two detention reviews in March and April maintained his detention on essentially the same grounds as the February review, fortified by the fact that in March it was noted that since the February review the immigration authorities had found out that C was due to be sentenced for further offences, which increased the already significant risk of commission of further offences and harm to the public.
99. Finally, I have to consider whether it was inevitable that C would have been detained if the SSHD had properly considered Dr Hartree's and Dr Vermeulen's evidence at any time during the period of C's unlawful detention, that is, from 19 December 2014 until 12 February 2015. I am entitled to draw appropriate inferences as to what would have happened from the documentary evidence of what did happen after the medical evidence was considered. It is obvious that if the SSHD gone about things the right way sooner, and applied the policy at an earlier juncture, C would still have been detained.
100. This is a case in which, like one of the cases considered by Burnett J in EO and others, (the case of OE), the conclusion that the circumstances very exceptionally justified detention notwithstanding the medical evidence was inevitable. Thus the failure by the SSHD to recognize that there was independent evidence of torture, and to reach that inevitable conclusion, rendered C's detention technically unlawful for a period of approximately seven weeks, from 19 December 2014 to 12 February 2015; but he is not entitled to claim any compensatory damages.
101. I would have reached exactly the same conclusion, for the same reasons, if, contrary to my findings in paragraphs 85-87 above, the period of C's unlawful detention incepted on 21 November 2014 instead of on 19 December 2014.

CONCLUSION

102. In summary, the claim for judicial review of the SSHD's decision of 6 February 2015 fails. Far from being perverse or irrational, it is difficult to envisage any other decision being reached by a reasonable decision-maker on a proper application of the legal test for fresh claims. C was unlawfully detained from 19 December 2014 up to and including 12 February 2015, but he has no entitlement to compensation for that period. His detention from 21 November 2014 until 18 December 2014 (inclusive) and from 13 February 2015 until his release on 17 April 2015 (inclusive) was lawful.