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
		11 July 2016

Mrs Justice Lang :

1. In this claim for judicial review, the Claimant challenged the Defendant's decisions on deportation, asylum and detention. Due to developments which have taken place during the course of these proceedings, the asylum and deportation issues are to be determined by way of statutory appeal and so only the Claimant's detention now falls to be decided.

Factual summary

2. The Claimant is a national of Slovakia and was born there on 16 April 1985. Her son was born on 4 November 2006. In April 2014 she arrived in the United Kingdom ("UK"), and resided with her sister and her family whilst working in a supermarket. Her son remained in Slovakia with her mother.
3. On 15 July 2014 the Claimant was arrested for conspiracy to assist unlawful immigration to a member state, namely, agreeing to enter into a sham marriage with a Nigerian man, which would entitle him to claim a right of residence in the UK as the spouse of an EU citizen. The marriage was arranged for financial gain by two other individuals, one of whom (called RS) the Claimant knew from Slovakia. According to the pre-sentence report, which the sentencing judge accepted:

"[The Claimant] explains that prior to the day she was arrested with her co-defendants at the Registry Office in Leeds, she had not met Joseph ... [the groom]. She describes that although a financial payment had been mentioned, no specific amount had been identified and she 'simply' believed that she was going to be looked after. It is not clear whether this was as a result of financial reward or whether [the Claimant] felt she would be looked after by her new husband. …. [The Claimant] is adamant she has not received a penny for her role in the offence…"

4. The Claimant entered an early guilty plea to the charge in September 2014 and on 2 February 2015 she was sentenced to 15 months imprisonment. Because she had been remanded in custody, she was eligible for release on 28 February 2015 (after serving seven and a half months of her sentence). On 28 February 2015, the Defendant decided to detain her under immigration powers. Thereafter she was held in immigration detention for just under a year until her temporary admission on 4 March 2016.
5. On 13 February 2015, the Defendant served the Claimant with a notice of liability to deportation pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006") on the grounds that, as a result of her criminality, her deportation was justified on grounds of public policy and/or public security.
6. On 26 February 2015, the Claimant replied to the notice stating that if she was returned to Slovakia her life would be at risk and that she had family in the UK. In response, on 4 March 2015, the Defendant invited her to apply for asylum and asked her to complete Statement of Evidence forms within 12 working days.
7. On 16 March 2015, the Defendant notified the Claimant that she had rejected her representations against deportation and decided to make a deportation order, though no steps would be taken to deport her whilst her asylum claim was pending. The Defendant referred in detail to the circumstances of the offence and the Judge's sentencing remarks. She said that the seriousness of the offence was reflected in the lengthy prison sentence; immigration crime was not victimless; that the Claimant had given no thought for the consequences of illegal immigration upon the community of the UK; she had acted for personal financial gain and her actions suggested she might well resort to criminal activity to support herself, posing a risk of harm to the public. The Defendant concluded that it was reasonable to expect the Claimant to return to Slovakia where she had spent all her formative years and where her son still resided with her mother. Although the Claimant had stated that she had family in the UK, her family ties were not such as to engage Article 8 ECHR. There was a significant public interest in deporting her, and no very compelling factors against deportation.
8. Although the Claimant was notified of her right of appeal against the decision to deport, she did not file a notice of appeal at that time.
9. On 17 March 2015 the Claimant was transferred from prison to Yarl's Wood Immigration Removal Centre.
10. Detention reviews were conducted during 2015 on the following dates: 27 March, 24 April, 22 May, 19 June, 17 July, 13 August, 10 September, 8 October, 5 November, 3 and 31 December.
11. Although on 5 March 2015 the Claimant confirmed she wished to continue with her claim for asylum, she did not complete the required forms, and on 23 April 2015 she was issued with a notice of deemed withdrawal of her claim for non-compliance. On 9 July 2015, the forms were re-sent to her and eventually completed and sent to the Defendant on 27 July 2015. The Claimant explained that she was at risk of harm from her ex-partner, a violent and aggressive drug-user, who was a member of a Mafia group and a pimp. When they were together he physically assaulted her, demanded money from her, and threatened to shoot her if she complained to the police. He was serving a prison sentence for rape but she feared he would seek her out once released, and discover that she had given birth to his child. The Claimant did not refer to their membership of the close-knit Roma community, a point later heavily relied upon. The Defendant treated this information as a fresh claim for asylum.
12. On 14 May 2015 a bail application to the First-tier Tribunal ("FTT") was withdrawn by the Claimant. The FTT refused a bail application on 18 June 2015. In July 2015 a further bail application was withdrawn as the sureties had failed to attend due to the incorrect information being supplied to them by the Claimant's probation officer. In August 2015, a further bail application to the FTT was withdrawn.
13. On 13 June 2015 an OASYS assessment was completed, based on the pre-sentence report, and it was received by the Defendant on 9 July 2015.
14. On 11 August 2015 Dr Ward, a medical practitioner at Yarl's Wood, made a report under Rule 35 of the Detention Centre Rules expressing concern that the Claimant may have been the victim of torture in Slovakia, namely, physical attacks and threatening behaviour by her ex-partner. The Defendant responded to this report on 12 August 2015, seeking further details. On 13 August 2015, the Defendant wrote stating that she did not accept that the report amounted to independent evidence of torture, and maintaining the detention.
15. On 18 September 2015 the Claimant's solicitors wrote to the Defendant enclosing a witness statement from the Claimant and background evidence concerning Slovakia, together with the Rule 35 report and a referral letter from the Helen Bamber Foundation, asking for the Claimant to be released. The Claimant gave details of mistreatment by her ex-partner and also threats by RS (the Slovak who organised the sham marriage), which she had not previously mentioned. The Claimant's witness statement stated, for the first time, that she was of Roma ethnicity, and suffered discrimination in Slovakia as a result, and that because the Roma community was close-knit, her ex-partner and his criminal associates and RS would easily find her in Slovakia. She said that her photograph and details of the marriage had been publicised on the internet and she feared she would be labelled a prostitute and ostracised for marrying a black man. She said that the shame would be so great that she would commit suicide. On 22 September 2015 the Claimant's solicitors sent a pre-action protocol letter alleging false imprisonment.
16. On 23 September 2015 the Defendant replied to the Claimant's solicitors refusing to release the Claimant and rejecting the Rule 35 report as independent evidence of torture.
17. On 6 October 2015, the Defendant sent the Claimant a decision letter refusing asylum, humanitarian protection and discretionary leave on human rights grounds. The asylum and human rights claims were certified as clearly unfounded under section 94(1) of the Nationality, Immigration and Asylum Act 2002. The Defendant concluded:

i) The Claimant had not established a well-founded fear of persecution so she did not qualify for asylum under paragraph 336 of HC395 (as amended). Her alleged fear of mistreatment on return was based upon threats of persecution from non-state agents and the authorities in Slovakia would be able and willing to provide her with effective protection. In addition, it was reasonable to expect her to relocate within Slovakia and there was no evidence that the people she feared would be able to trace her.

ii) The Claimant had not shown that there were substantial grounds for believing that she faced a real risk of suffering serious harm on return from the UK and so she was not entitled to humanitarian protection under paragraph 339F of the Immigration Rules ("IR"). She was also excluded from a grant of humanitarian protection under paragraph 339D IR because she had been convicted of a 'serious crime', defined as one for which a custodial sentence of at least 12 months has been imposed.

iii) The Claimant had not established that deportation from the UK would breach Articles 3 or 8 ECHR. It was not accepted that there was a real risk that she would commit suicide if removed to Slovakia but should such a risk exist, she could receive appropriate mental health support in Slovakia.

18. On 7 October 2015 the Defendant served on the Claimant a deportation order, dated 1 October 2015.
19. On 8 October 2015, Dr Ward made a second Rule 35 report expressing concern that the Claimant may have been the victim of torture, namely, systematic domestic violence. The Defendant responded to this report on 12 October 2015, not accepting that it amounted to independent evidence of torture, and maintaining the detention.
20. On 9 October 2015 the Claimant's solicitors sent a pre-action protocol letter challenging the certification of the asylum claim and the deportation order. The Defendant replied to the pre-action protocol letter on 19 October 2015.
21. The Claimant's sentence and licence expired on 13 October 2015. The OASYS assessment dated 29 October 2015 was not obtained by the Defendant at this time. It was sent by the Claimant's solicitor on 18 December 2015.
22. On 20 October 2015 the Defendant set removal directions for 11 November 2015, which prompted the Claimant's solicitors to issue the claim for judicial review. Permission to apply for judicial review was granted on 12 January 2016.
23. On 27 January 2016, the Claimant's detention was reviewed and authorised.
24. In February 2016, in the course of reviewing the documents for the judicial review claim, the Defendant discovered that the asylum decision of 6 October 2015, including the decision to certify, had been made by case officers on 10 September 2015 before the Defendant received the further evidence submitted by the Claimant's solicitors on 18 September 2015. The Defendant therefore withdrew the asylum decision of 6 October 2015 and on 19 February 2016, a fresh asylum decision was made, upon consideration of all the evidence, which refused the claim but did not certify it.
25. The asylum decision letter dated 19 February 2016 was sent to the Claimant's solicitors by a civil servant in the Criminal Casework Immigration Enforcement department of the Home Office. On 24 February 2016, the same civil servant authorised the Claimant's continuing detention, and expressed the view that the judicial review claim, which was due to be heard shortly, was the only barrier to her removal. This was inaccurate since the Claimant had a right of appeal against the fresh asylum decision. She lodged her notice of appeal to the FTT on 23 February 2016. The FTT also admitted an out-of-time appeal against the decision to deport on 15 February 2016.
26. At the hearing on 23 February 2016, I ordered that the Claimant's proposed application for an interim order requiring the Claimant to be released from detention, be listed to be heard before me at the adjourned hearing on 16 March 2016.
27. In the light of these developments, on 4 March 2016, the Defendant granted the Claimant temporary admission on condition that she resided with her sister, report regularly, and not take on employment.

Legal framework

28. In order to be lawful, immigration detention must be for one of the statutory purposes for which the power to detain is given, and it must accord with the limitations implied by UK and ECtHR case law.
29. The burden is on the Defendant to justify the legality of the detention (R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, per Lord Dyson at [44]).
30. As an EU citizen, the Claimant's detention and deportation was governed by the EEA Regulations 2006, which implement Directive 2004/38/EC. The Claimant was exercising her right to free movement within the EU by living and working in the UK.
31. Regulation 21 gives effect to Articles 27 to 29 by empowering the Defendant to restrict the freedom of movement and residence of Union citizens on grounds of public policy, public security or public health, provided specified criteria are met. These include the requirement that the decision complies with the principle of proportionality: Regulation 21(5), reflecting Article 27(2).
32. Regulation 19(3)(b) provides that an EEA national may be removed from the UK if the Defendant has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.
33. Regulation 24 provides, so far as is material:

"24(1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 19(3)(b), that person may be detained under the authority of an immigration officer pending a decision whether or not to remove the person under that regulation, and paragraphs 17 and 18 of Schedule 2 to the 1971 Act shall apply in relation to the detention of such a person as those paragraphs apply in relation to a person who may be detained under paragraph 16 of that Schedule."

"(3) Where a decision is taken to remove a person under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provisions as to deportation) are to apply accordingly."

34. In R (on the application of Nouazli) v Secretary of State for the Home Department [2016] UKSC 16, the Supreme Court held that the powers of detention in regulations 19(3)(b) and 24(1) were ancillary to the power of removal under regulation 21 and thus the safeguards in Articles 27 and 28 of the Directive, including the requirement of proportionality, applied.
35. Under section 3(5)(a) of the Immigration Act 1971, a person who is not a British citizen is liable to deportation from the UK if the Secretary of State deems his deportation to be conducive to the public good.
36. Where a deportation order is in force, a person may be detained under the authority of the Secretary of State pending his removal or departure from the UK (paragraph 2(3) of Schedule 3 to the Immigration Act 1971).
37. Article 5 ECHR provides that everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the circumstances specified in Article 5(1)(a) – (f) and in accordance with a procedure prescribed by law. Article 5(1)(f) states that a person may be arrested or detained to prevent his effecting an unauthorised entry into the country, or where action is being taken against them with a view to deportation or extradition.
38. By virtue of the Human Rights Act 1998, s.6 (1), it is unlawful for the Defendant to act in a way which is incompatible with a Convention right.
39. The power to detain is subject to the limitations set out in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), [1984] 1 WLR 704. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196, Dyson LJ described the Hardial Singh principles in the following terms:

"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in re Hardial Singh [1984] 1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Le Tam v Tai A Chau Detention Centre [1997] AC 97, 111A-D … . In my judgment, Mr Robb correctly submitted that the following four principles emerge:

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

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

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

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

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

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

40. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, Lord Dyson said, at [22] and [24]:

"22. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles …

24. As to the second principle, in my view this too is properly derived from Hardial Singh. Woolf J. said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases when it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J. was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."

41. In R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Toulson LJ said:

"45. ….a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle."

…

"55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the UK and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."

42. In Lumba, Lord Dyson approved this approach to the risk of re-offending:

"107 I have some difficulty in understanding why the risk of reoffending is a relevant factor in a case where there is a risk of absconding, but not otherwise. It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by a deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Toulson LJ said, at para 55: [he then quotes the passage I have set out above]

Para 78 of Keene LJ's judgment is to similar effect.

108 I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in A's case to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in I's case at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is "an obviously relevant circumstance".

109 But the risk of reoffending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his reoffending will impede his deportation.

110 The risk of reoffending is, therefore, a relevant factor."

The Defendant's detention policy

43. The statutory powers to detain have to be exercised in accordance with the Defendant's published policies on detention, in Chapter 55 of the Enforcement Instructions and Guidance ("EIG"), unless there is good reason to depart from them.
44. Paragraph 55.1.1 EIG sets out a general presumption in favour of temporary admission or release rather than detention. 55.1.2 provides that cases concerning foreign national prisoners are subject to the general policy in 55.1.1 and that the starting point in such cases "remains that the person should be released on temporary admission or released unless the circumstances of the case require the use of detention".
45. However, 55.1.2 goes on to say that the nature of foreign national prisoner cases means that special attention must be paid to their individual circumstances and provides that in any case in which the criteria for considering deportation action are met:

"the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding."

46. Paragraph 55.1.3 EIG states that detention must be used sparingly and for the shortest period necessary. All other things being equal, a person who has an appeal pending might have relatively more incentive to comply with any restrictions imposed, if released, than one who does not and is imminently removable.

Rule 35 Detention Centre Rules 2001

47. Rule 35 of the Detention Centre Rules 2001 requires medical practitioners to report, inter alia, on the case of any detained person if they are concerned he or she may have been the victim of torture. The Detention Services Order 17/2012 sets out what should be included in a Rule 35 Report, including whether and to what extent the evidence of injury etc. is consistent with torture. It is not a medico-legal report and is not prepared by reference to the Istanbul Protocol.
48. Paragraph 55.8A EIG explains that 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.
49. Paragraph 55.10 EIG lists those classes of persons normally considered unsuitable for detention save in very exceptional circumstances. The list includes "those where there is independent evidence that they have been tortured". In criminal casework cases, the risk of further offending, or harm to the public, may outweigh factors that would otherwise indicate that a person was unsuitable for detention.
50. Upon receipt of a Rule 35 report, caseworkers must review continued detention in the light of the report and respond to the centre within two days of receipt. The 'Detention Rule 35 Process' sets out the steps which the immigration officer must take. These include, at section 3, consideration of whether or not the report constitutes independent evidence of torture:

"Because each case will be different, it is not possible to provide definitive guidance on when a Rule 35 report will constitute independent evidence of torture. However, it must have some corroborative potential (it must "tend to show") that a detainee has been tortured, but it need not definitively prove the alleged torture. The following pointers may assist:

A report which simply repeats an allegation of torture will not be independent evidence of torture.

A report which raises a concern of torture with little reasoning or support or which mentions nothing more than common injuries or scarring for which there are other obvious cause is unlikely to constitute independent evidence of torture;

A report which details clear physical or mental evidence of injuries which would normally only arise as a result of torture (e.g. numerous scars with the appearance of cigarette burns to legs; marks with the appearance of whipping scares), and which records a credible account of torture, is likely to constitute independent evidence of torture."

51. In Secretary of State for the Home Department v BA (Nigeria) [2016] EWCA Civ 458, Elias LJ (at [25] – [51]) rejected the submission that this guidance was too restrictive and held that a mere assertion by the medical practitioner that he found the detainee's account credible would not necessarily constitute independent evidence. If, however, the medical practitioner asserted that the injuries were consistent with the account given, and gave a reasoned explanation why this was so, this could constitute independent evidence which corroborated the account given. The Rule 35 process was concerned with evidence of torture; it did not require definitive proof of torture (at [41]).
52. In BA (Nigeria) Elias LJ also reviewed the authorities on the test which the court should adopt, confirming that the court should only interfere if the decision of the Secretary of State was in breach of traditional public law principles (at [52] – [55]). He agreed with Burnett J.'s observations in R (EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), at [16], that the question whether a report is evidence of torture is relatively "hard-edged" and in most situations the result would be the same whichever approach was adopted.
53. In EO Burnett J. received evidence on the meaning of torture, and defined its meaning, in the context of the Defendant's policies on detention, as follows:

"82. … the word "torture" in the detention policy means any act by which severe pain or 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."

Grounds for judicial review

54. The Claimant submitted that her detention breached the second, third and fourth Hardial Singh principles: the length of detention was unreasonable in all the circumstances; the Claimant was detained even after it became apparent that the Defendant would not be able to effect deportation within a reasonable period; and the Defendant failed to act with reasonable diligence and expedition.
55. The Claimant also submitted that the Defendant failed to apply her own policy in EIG 55:

i) by detaining the Claimant when her offending behaviour was not serious and the risk of absconding and re-offending was, in reality, low; and

ii) continuing to detain her after receipt of the Rule 35 reports.

Conclusions

56. In my judgment, the Defendant's decision to hold the Claimant in immigration detention from 28 February 2015, rather than allow her to be released on licence, was both reasonable and lawful. The initial decision to detain and the subsequent detention reviews show that the Defendant correctly considered and applied the presumption in favour of release, as set out in Chapter 55 EIG, and the guidance on deportation cases where the presumption of release may be displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding. The imminence of deportation was plainly central to the Defendant's considerations. The Defendant expressly referred to the question whether it was proportionate to maintain detention, in the light of the circumstances prevailing at the particular time, and in my view, the balancing exercise required by Chapter 55 EIG, which the Defendant carried out, also reflects the requirements of proportionality.
57. The Defendant was justified in taking the view that the Claimant had committed a serious offence, and as she pointed out in her letter of 16 March 2015, immigration crime is not victimless and the Claimant had no thought for the consequences of her actions on the community. The judge considered that the offence was sufficiently serious to merit a custodial sentence of 15 months, even though the Claimant had no previous convictions, played a secondary role in the conspiracy, had some personal mitigation, and had entered an early plea of guilty. I do not agree with Ms Asanovic that the judge accepted in her sentencing remarks that the Claimant did not understand what she was doing. The plea of guilty to the charge of conspiracy would not have been accepted by the judge if she considered that the Claimant did not have sufficient knowledge or understanding to enter into the agreement to assist unlawful immigration, which was the essence of the charge. I also consider Ms Asanovic's submission to be unrealistic. No matter how naïve or ill-educated the Claimant might be, she must have realised that a complete stranger would only marry her in order to gain some advantage, which in this instance could only be her EU citizenship.
58. In my view, it was reasonable for the Defendant to take the view that the Claimant's willingness to commit this offence demonstrated a "blatant disregard" for UK immigration law. Her proven lack of respect for immigration law made it all the more likely that, if she was released, she would fail to report or abscond, particularly since she was aware that deportation was being actively considered by the Defendant. The Defendant regularly assessed the risk of absconding, and the reports disclose differences of views. Generally the risk of absconding was assessed as medium/high, which I consider reasonable in the circumstances. This was an important and legitimate factor pointing in favour of detention.
59. The Defendant noted that the Claimant had not undertaken courses to address her offending behaviour and considered that as she committed the offence for financial benefit, and her financial circumstances had not improved, there was a risk that she would re-offend in order to support herself. In my view this was a reasonable view to take. Both the probation officer and the sentencing judge confirmed that the Claimant was motivated by the financial benefits which she would secure for herself and her son, and the Claimant's admissions about this are recorded in the OASYS reports. Generally, the Defendant assessed the risk of re-offending, and the risk of harm to the public, as medium. These assessments were not an unthinking rubber-stamp exercise. The reports reflect genuine re-considerations of her case by different case officers at different times. For example, in the detention review on 24 April 2015 the authorising officer disagreed with the medium/high assessment of risk of reoffending and recommended the assessment be reduced to "low".
60. Ms Asanovic criticised the Defendant for making risk assessments without the pre-sentence report and the sentencing remarks, pointing out that as the UKBA conducted the criminal prosecution, these documents should have been readily available. She relied on the fact that the pre-sentence report assessed the Claimant's risk of re-offending and harm to the public as low. I do not know precisely when the sentencing remarks were obtained, but they were referenced in the first detention review in March 2015. The first OASYS report was prepared on 13 June 2015 and received by the caseworker on 9 July 2015. It contained extracts from the pre-sentence report, though the pre-sentence report itself does not appear to have been sent to the caseworker until December 2015. Of course, the Defendant ought to take into account all relevant material wherever possible but if, for whatever reason, material from the criminal trial is not available, it is not unlawful for the Defendant's experienced Criminal Casework Directorate ("CCD") to make its own risk assessments without them. In this instance, since UKBA had conducted the prosecution, the details of the offence and sentence were available, as the reports demonstrate. The assessments made were justifiable and reasonable, in my view.
61. Ms Asanovic criticised the Defendant for disregarding the Claimant's family ties, which the Claimant referred to briefly in her letter of 26 February 2015, and in her bail applications, and in her statement of evidence forms sent on 27 July 2015. The Claimant's sister lives in the UK with her husband; they stood surety for her and their address was assessed as suitable for the Claimant to reside at when she was released. In my view, even though the Claimant could not establish family ties sufficient to establish a claim under Article 8, the Defendant's reports were inaccurate in stating that she had no family ties. I am satisfied that this inaccuracy did not adversely affect her bail applications, as the information about her sister and her husband appears in the relevant documentation. I do not consider that this inaccuracy would or should have made any difference to the Defendant's decision on detention. The fact that the Claimant was residing with her sister when she committed the index offence indicates her sister was not able to prevent her from breaking the law, for financial benefit. The relationship with her sister would be unlikely to deter her from absconding to avoid deportation, if she was otherwise minded to do so.
62. At the outset, the Defendant considered she met the criteria for deportation, and deportation could be effected within a reasonable time scale. The Defendant took appropriate and timely steps to progress the deportation process. The Claimant did not lodge an appeal against the decision to deport, made on 16 March 2015, and therefore the Defendant did not anticipate any undue delay or uncertainty arising from an appeal. However, the Claimant's letter dated 26 February 2015 raised a protection issue as she said "they would try to kill her" if she returned to Slovakia. The Defendant correctly identified that the deportation could not be proceeded with until the protection claim had been investigated and determined. I do not consider that the very brief details provided by the Claimant could or should reasonably have altered the Defendant's initial view that the Claimant was likely to be deported. Thereafter the Defendant took appropriate steps to investigate the protection claim. I do not accept Ms Asanovic's criticisms of the steps taken by the Defendant to ensure that the Claimant completed the required statement of evidence forms. It seems to me that there was inordinate delay on the part of the Claimant and her advisers in providing details of her asylum claim. The statement of evidence forms were not sent until 27 July 2015. The Claimant's witness statement, which raised the issue of the Claimant's Roma ethnicity for the first time, together with background material on Slovakia, was not sent to the Defendant until 18 September 2015.
63. I do not consider that the Defendant delayed unreasonably by not making her decision on the protection claim until September/October 2015. There were a number of discrete issues to be considered and assessed. I see from Mr Gossage's witness statement that the caseworker made the decision on 10 September 2015; it was approved by the senior caseworker on 11 September 2015 and on the same day returned to the CCD to conclude the deportation paperwork and arrange removal. CCD sent the decisions to the Claimant on 6 and 7 October 2015.
64. Regrettably, the Defendant overlooked the additional material provided by the Claimant's solicitors under cover of the letter of 18 September 2015 and the protection claim was rejected in the decision letter of 6 October without taking it into account. For reasons which were not clear, the Defendant did not even notice that this material had been left out of consideration until February 2016. I agree with Ms Asanovic's submission that this oversight revealed a lack of diligence and undue delay on the part of the Defendant. In my view, if the Defendant had addressed the additional material at the appropriate time, it is more likely than not that in October 2015 she would have made the decision which she subsequently made on 19 February 2016, namely, to refuse the protection claim but not to certify it. As Mr Gossage, the case worker, explained in his witness statement, his research showed that "sufficiency of protection would not always be forthcoming due to societal attitudes towards Roma people in Slovakia therefore the case was not suitable for certification under section 94."
65. The Claimant would then have been able to exercise her right of appeal in October 2015. The statutory appeal process typically takes many months to conclude. For example, I was informed that the appeal lodged in February 2016 was listed to be heard by the FTT in November 2016; there would then be the possibility of further appeals from the FTT's decision. In my view, once the Claimant had exercised her statutory right of appeal, the Defendant could no longer have reasonably concluded that the Claimant's deportation was imminent, or that it could take effect within a reasonable time. Taking into account all the circumstances of the Claimant's case, including the nature of her offending and the medium level of risk of absconding, re-offending and harm, I consider it would no longer have been lawful to detain her once she exercised her statutory right of appeal. Allowing for time for the Defendant to consider the new material submitted on 18 September 2015, and to make her decision, and for the Claimant to appeal, I find it was no longer lawful to detain her from 12 October 2015 onwards.
66. I turn now to consider the Rule 35 reports. Dr Ward, in her first report dated 11 August 2015, gave a brief account of the Claimant's history, and violence at the hands of her aggressive ex-partner. She lost 5 or 6 front teeth when he hit her and had to wear false teeth. Dr Ward noted that she had no other scars, both in the narrative and in the body diagram when she examined the Claimant. Dr Ward noted that she was distressed and tearful as she related the story, and that she was anxious, slept badly and had nightmares and flashbacks. Dr Ward noted some symptoms of post-traumatic stress disorder ("PTSD").
67. In my view, the Defendant was entitled to conclude that this very brief summary did not constitute independent evidence of torture as it was mainly a record of what the Claimant told Dr Ward. The only recorded injury was the loss of her front teeth, and Dr Ward did not provide any reasoned analysis of that injury to support the allegation that the Claimant lost her teeth as a result of torture, rather than in an accident or in a one-off assault. The absence of any scars or reference to other specific injuries made the allegation of torture less plausible.
68. Of course, physical injury is not essential for a finding of torture to be made but the Defendant was entitled to conclude that the Rule 35 Report did not provide a sufficiently detailed and reasoned assessment of her psychological symptoms to constitute independent evidence of torture. The Defendant asked Dr Ward to provide more information about her symptoms of PTSD, but she did not respond. The Claimant's anxiety/panic attacks, and stress at her immigration status, had been recorded by Healthcare in April/May. She did not require treatment or medication, no further issues had been raised, and her condition was considered to be within normal limits. Moreover, the cause of these symptoms was far from clear.
69. In the light of this evidence, and the Defendant's assessment in the letter of 13 August 2015, I consider that the Defendant's decision to continue to detain her was reasonable and lawful.
70. The letter from the Helen Bamber Foundation expressing its clinical opinion that there was a prima facie case of torture or cruel, inhuman and degrading treatment which required further clinical investigations by an independent medical expert, was not written until a month later (17 September 2015) and not sent to the Defendant until 18 September 2015. Even then, it was only an assessment based on documents; they had not seen or examined the Claimant. At that stage, the only medical evidence available to the Defendant was Dr Ward's report of 11 August 2015 and the detention centre healthcare records.
71. On 8 October 2015, a second Rule 35 report was sent to the Defendant by Dr Ward. It gave a fuller account of "a long systematic series of domestic abuse" by her ex-partner, including regular beatings. The Claimant said she was beaten on the head with a stick and Dr Ward documented a 4 cm linear scar on the Claimant's scalp, finding it was probably caused by a blunt trauma from a stick. The Claimant said he used to pull on her earrings when he attacked her until they were ripped out. Dr Ward documented traumatic damage to her ear lobes from earrings being ripped out. Dr Ward also documented scarring on her hand from an unstitched defensive wound. Dr Ward again recorded the missing front teeth as a result of her ex-partner punching her in the mouth, indicating that the injury was consistent with the Claimant's account.
72. Dr Ward referred to her anxiety and panic attacks as a possible cause of her palpitations, for which she was receiving medication. Dr Ward also said that her palpitations were likely to be due to the stress of detention, but as her father died of a heart attack aged 40, this caused her added anxiety. Dr Ward considered her anxiety was likely to improve if she were to be released.
73. Dr Ward addressed the likely explanation for the Claimant's failure to disclose all these matters at the earlier consultations, concluding:

"It is not uncommon in systematic domestic violence for the victim to withhold information due to fear and denial and I have no concerns regarding the validity of this account which is backed up by her obvious injuries. These are unlikely to be accidental in nature and her explanation is feasible."

74. On 12 October 2015, the Defendant responded to the second Rule 35 report stating she did not accept that it constituted independent evidence of torture, as it was simply a record of what was said to Dr Ward, mirroring the Claimant's asylum claim. Dr Ward had not demonstrated any evidence of torture as her injuries could have occurred in other ways. Her anxiety and panic attacks could be treated whilst in detention.
75. In my judgment, on this occasion, the Defendant did not have sufficient regard to Dr Ward's findings, and erred in not applying the guidance in 'Detention Rule 35 Process' fairly and properly. In the second Rule 35 Report Dr Ward did provide a sufficiently cogent, detailed and reasoned description of systematic, repeated assaults, documenting the injuries which she found to be consistent with the Claimant's account, and giving her professional opinion that they were unlikely to be accidental. Applying the guidance, as analysed by Elias LJ in BA, at [39]-[41], Dr Ward's report did provide corroboration for the Claimant's account and did constitute independent evidence of torture by a medical practitioner. It was irrational for the Defendant not to accept this. Although Dr Ward had missed the scars on her previous examination, there was no evidence to suggest that the scars were newly-inflicted, and it seems more likely that, as the Claimant had not pointed them out, they were not observed by Dr Ward who was only conducting a brief examination. The symptoms of PTSD were, at the very least, consistent with having been previously subjected to systematic violence, even if the stress of her current predicament was the probable cause of her current anxiety and panic attacks. Moreover, if her account was true, it would be plausible that the threat of deportation back to a country where her ex-partner might find her would cause her anxiety.
76. By October, there was also support for Dr Ward's assessment from the Helen Bamber Foundation recommending clinical investigation by an expert on the basis that there was prima facie evidence of torture, which does not seem to have been taken into account by the Defendant, even though acceptance for pre-assessment by the Helen Bamber Foundation is considered to be of sufficient significance to suspend a pending asylum decision (Asylum Policy Instruction).
77. I conclude therefore that the Defendant erred in not considering the Claimant's case, as a person in respect of whom there was independent evidence of torture, under paragraph 55.10 EIG. Only "exceptional circumstances" would have justified continued detention, and no such exceptional circumstances existed in this case. The nature and degree of the Claimant's previous offending, and the level of risk which she represented, would not, in my view, have justified continued detention pursuant to the Defendant's policy.
78. Furthermore, by early October the Defendant had received both the second Rule 35 Report as well as the further information in support of the asylum claim from the Claimant's solicitors. In the light of both these new factors, the decision to continue to detain the Claimant was both contrary to the Defendant's policies in Chapter 55 EIG and unreasonable.
79. In conclusion, I find that the Claimant was unlawfully detained from 12 October 2015 to 4 March 2016. Following receipt of this judgment in draft, the parties agreed that the Defendant would pay damages in the sum of £25,000 in respect of the Claimant's unlawful detention.