England and Wales High Court (Administrative Court) Decisions

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

		360 High Street Lincoln LN5 7PS
		4 January 2017

HIS HONOUR JUDGE ROGERS:

1. This is the Administrative Court judgment in the case of R (on the application of Leonidas Radciukas) v Secretary of State for the Home Department, reference CO/1633/2016, judgment following oral hearing in Birmingham.
2. This is a claim for judicial review brought by Mr Radciukas. It was a broadly drawn claim originally and the application was pursued on various grounds including a challenge to the deportation order itself and the subsequent decision to certify. Originally the matter went before His Honour Judge McKenna, sitting as a High Court Judge. His grant of permission unfortunately is slightly unclear and arguably ambiguous. He appeared to limit the grant of permission which he gave to the issues only of deportation and certification, but he did not in terms deal with the lawfulness of the detention one way or another. This is relevant because the other grounds have now fallen away or are not pursued simply because they are academic and thus it appears that there is a vacuum in terms of permission in relation to the live grounds. That was raised as a preliminary point before me because the oral argument was limited, first, to the detention and its lawfulness on 6 November 2015 and, secondly, the detention on 8 February 2016.
3. In a short ex tempore judgment given at the outset I indicated, for the avoidance of doubt essentially, that I was prepared to grant permission to appeal in relation to the whole claim in order that the outstanding grounds could be fully argued, which they were, and, if I may say so, expertly by Mr Raphael Jesurum for the claimant and Mr Vinesh Mandalia for the Secretary of State. As well as those oral arguments, I had the skeleton arguments in writing prepared by counsel to supplement the substantial documentation already filed in the claimant's bundle, the permission bundle, all of the supporting documents and of course the Secretary of State's detailed grounds of defence.
4. The background chronology, given the narrowness of the claim now, is not in dispute and can be stated very quickly and in fact for convenience I indicate my acceptance of the material set out in Mr Jesurum's skeleton argument beginning at paragraph 5 when in a list of paragraphs he simply sets out the factual matters. In the very briefest essence the claimant is a Lithuanian having been born in 1963. While still in Lithuania and for many years he conducted a criminal lifestyle involving very serious offending indeed and was sentenced repeatedly to terms of imprisonment. In the early part of this century his son was born. He then was imprisoned for the last time in Lithuania before arriving in the United Kingdom in 2009.
5. He offended regularly in this country and indeed allegedly in Scotland, but on a very much reduced basis, his offending being essentially minor matters of dishonesty and the like. Nevertheless, he came to the attention of the authorities and a notice of deportation was issued and he was detained. A deportation order was formally signed on 4 November 2015. That of course just predates one of the relevant dates in this litigation, shortly after detention.
6. When originally detained, of course, a good deal of paperwork was completed and perhaps one of the most important documents is that to be found at page 188 in the bundle, which is the health screening questionnaire completed at Morton Hall Immigration Centre. For the purpose of this hearing it is noteworthy in two respects. In the various lists of illnesses and other complaints he repeatedly ticks "no", in other words, he does not suffer from them, but over the page under the question: "Have you ever had an operation or been a patient in a hospital in the United Kingdom", he ticks "yes" and says: "Walsall Hospital, prostate cancer." However, he does not, on that document at any rate, complain of any continuing problems and in the response to the rather informal question: "How do you feel you are coping at the moment", the answer states he feels "okay".
7. It is, however, plain that at about this same time he had unfortunately received a diagnosis of prostate cancer, as he indicates. We now know, and as the medical evidence proves now, that the diagnosis turns out to be very much more serious and it is terminal and I am told at the time at any rate of the diagnosis he had a prospective life of about two years. Some considerable part of that has now expired and I have not been told of any other medical developments during the course of this litigation. Reverting to the health screening questionnaire, which is, I should have said, dated 7 October 2015, in response to the question: "Have you ever been a victim of torture", he again ticks "no".
8. In other documents, which are now available but were not contemporaneously seen by the Secretary of State's representatives, are the extensive medical care notes from Nottinghamshire Health Care NHS, beginning on the same date, 7 October, and no doubt covering some of the same material and it confirms that the patient had a prostate biopsy appointment with the subsequent diagnosis and then over several pages the medical developments are set out.
9. There is an entry for 6 November, which of course is a relevant date, dealing with the medication that he was prescribed. I need not read beyond that. They are there to be seen and obviously a very significant medical history is to be observed. I have already indicated, although I do not think I gave the date of his detention on 24 September, thta it was not until 6 November that the first Rule 35 report was undertaken. Much turns on this and the subsequent Rule 35 report, so it is necessary to look in detail at the documentation.
10. At page 116 in the bundle is the certificate of the medical practitioner dated 6 November. Under section 3, "Nature of Report", the box has been ticked:

"I have concerns that this detainee may have been the victim of torture."

11. The narrative of the report, over the page at 117 and 118, reads as follows. It has obviously been completed by the doctor in the course of examination and discussion with the patient. It begins, somewhat obliquely, simply in this way: "Occurred in 2004 in Lithuania." It may be that there is some text missing but no one seems to be able to shed any light on that. It continues:

"He had been charged with robbery and put in Sikuli prison for two years prior to his court appearance. He states during this time he was interviewed by police many times and tortured during this process and at other times. They were trying to get him to confess to his crime. He was punched, kicked and beaten repeatedly. They used rubber batons and beat him on the head, back and neck. They beat him so hard that his left clavicle was broken and he had surgery to repair this in the prison hospital in 2005. After court he spent a further five years in prison, again being beaten regularly. On release from prison he fled Lithuania to the UK.

Since then he has had pain in the left shoulder, especially on intense activity and overhead activity. He also states in [and I think it reads] 1986 [although the writing is unclear] he was involved in street fighting, arrested and taken to Alytus prison camp where he was kept for four years. Soldiers were sent to the camp who regularly beat them. He was kicked so hard that he fell to the ground sustaining a severe abdominal injury (? perforation) which required emergency surgery. He was also kicked in the left knee when his patella was dislocated and spent two months in hospital after this. He still gets abdominal and knee pain since this.

He is fearful to return to Lithuania due to fear of the police and their practices and states he feels depressed when thinking of returning there. In my opinion, the account he has given is consistent with torture."

12. Over the page on a body map are the indications of the scars to be seen on the upper left part of the patient's body, with notation by the doctor. The formal response of the Home Office Immigration Enforcement Department is to be found at page 120 in the letter of 9 November and, as relevant, reads as follows:

"As a result the decision has been taken to maintain your detention. This is because it is not accepted that this Rule 35 report constitutes independent evidence of torture as it is simply a record of what you said to the medical practitioner. It is considered that your account of the events which led to your injuries and scarring could easily have been tailored to match scarring that you had suffered from incidents other than the torture you have claimed. The medical practitioner does not state that your injuries could only have occurred through torture rather than the account you have given is consistent with torture."

13. There then follows a background history along the lines of the chronology. It continues in the text:

"On account of your criminal history you were served a notice of liability to deportation on 19 August 2015 and invited to submit any reasons that you should not be deported, including any reasons which would breach any article of the European Convention of Human Rights. You failed to raise any claim regarding torture at this point. This casts considerable doubt on the credibility of your claim."

14. And then later still in the document:

"Notwithstanding, even if it was considered that the report constituted independent evidence and it was considered that you were the victim of torture, it is considered that there are very exceptional circumstances to justify maintaining your detention. It is considered that, given your criminal history and the disregard you have shown for the laws in both Lithuania and the United Kingdom, there is an unacceptably high risk of you absconding and risk to the public if you were to be released. For these reasons you are considered to pose a greater risk of absconding. Your continued detention pending the deportation process is still considered to be appropriate and so you will remain detained."

And indeed he was.

15. The second Rule 35 report arose in completely different circumstances and related to his physical health. The documentation is to be found at page 109 in the bundle and the medical certificate dated 8 February has the box ticked:

"This detainee's health is likely to be injuriously affected by continued detention or any conditions of detention."

And the text reads as follows:

"Update on this gentleman with confirmed prostate cancer. He has been under follow-up with urology at Lincoln County Hospital. MRI scan, 18 December 2015, showed the cancer had advanced locally. Further imaging has apparently confirmed 'widespread metastases'. We were informed of this by telephone. Awaiting official correspondence plus a plan for treatment. He is already on hormonal treatment and it appears he will be starting chemotherapy. (He returned from hospital with a leaflet about chemotherapy but again we are awaiting correspondence to confirm this.) If the cancer is indeed widespread treatment is most likely to be palliative/symptomatic, which would involve pain relief plus or minus chemotherapy or radiotherapy. He would require multidisciplinary involvement, including input regularly from the oncologists, general practitioners and district/Macmillan nurses."

16. The Immigration Enforcement response, dated 10 February, at page 108 in the bundle, reads, as relevant, as follows:

"Information contained within the report has been considered and the decision to detain you has been reviewed. You have not been exercising Treaty rights in the United Kingdom, therefore you do not qualify for protection under the 2006 Act and you have no right to be in the United Kingdom. If you were to be released into the community in the United Kingdom you would not be entitled to housing or medical treatment. The doctor has stated your treatment would best be conducted in the community, but has not stated that it must be conducted in the community. Given the above, treatment is better suited in detention. Under the circumstances it is not accepted that your health will deteriorate if you remain in detention."

Then the letter continues with discussion of his fitness to fly, which I need not read into this judgment.

17. It is contended on his behalf that both of those events and both of those assessments rendered his detention from those dates unlawful.
18. The law in this regard is not, I am happy to say, especially controversial and was referred to by both counsel, but essentially to the same effect. Within the bundle of documents provided for the court is a substantial body of material from the Home Office guidance. Chapter 55 of the guidance, which begins at page 445 of the bundle, under the general heading "Detention and Temporary Release", is of some help. And I was taken to various passages, to which I will simply refer in outline. At page 447, paragraph 55.1.3, "The Use of Detention", was referred to at page 474, paragraph 55.8A, "Rule 35 Special Illnesses and Conditions". I just read briefly from that:

"Rule 35 of the Detention Centre Rules 2001 sets out requirements for health care staff at removal centres in regards to any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention [second, irrelevant], third, for whom there are concerns that they may have been a victim of torture."

19. In other words, two of the three categories were engaged in this case head-on. At page 483, under paragraph 55.10 of the guidance, "Persons Considered Unsuitable for Detention", the guidance reads:

"The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons."

Then, as relevant, fourth:

"Those suffering from serious medical conditions which cannot be satisfactorily managed within detention and ... [six] those where there is independent evidence that they have been tortured."

20. In Mr Mandalia's skeleton argument on behalf of the Secretary of State he sets out, and I need not repeat it, the legal framework from paragraph 8 onwards dealing with detention, deportation and the engagement of Rule 35 procedures. And at paragraph 11 he reviews, if I may say so, in helpful short form, a number of the relevant authorities and Mr Jesurum took no issue with that.
21. Rule 35, to which reference has already been made, of the Detention Centre Rules 2001 was also looked at in detail at the hearing. At page 514 in the bundle, at rule 1.3 of the guidance headed "Detention, Rule 35 Process", guidance rule 1.3 reads as follows:

"Rule 35 of the Detention Centre Rules 2001 lays out certain requirements for medical practitioners defined in Rule 33 as a registered general practitioner. (1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention ... (3) the medical practitioner shall report to the manager of the case of any detained person who he is concerned may have been the victim of torture."

22. The exact text or vocabulary of course is relevant because it informs the tick box forms which are worked through and to which reference was earlier made. And then, without reading them, I was also referred to page 517, giving the procedural requirements and the approach to be taken. And then I was shown, importantly in terms of responses, Rule 35.3, "Responses Handling", and (i), consider whether the Rule 35 report constitutes independent evidence of torture. The guidance is this:

"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 will need not definitively prove the alleged torture. The following pointers may assist."

And then three bullet points. First:

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

Second:

"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 causes is unlikely to constitute independent evidence of torture."

Third:

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

23. It then goes on to deal with the proviso of very exceptional circumstances, which of course was invoked in this case. Again without reading them, I draw attention to annex A with a list of frequently asked questions, some of which were referred to.
24. As well as the statute and the guidance, the authorities to which I was referred were bundled helpfully in a folder which I have looked at, but perhaps the two which featured most prominently were the decision in R on the application of SA (Holland) v the Secretary of State for the Home Department [2014] EWHC 2570 (Admin), a decision of Mr Mark Ockelton sitting as a High Court judge. The facts were rather different, but some of the reasoning of the learned deputy judge was referred to and relied upon. Perhaps the most convenient summary is under his general heading "The Facts in Detail", paragraph 17 of the judgment. Mr Ockelton says:

"As the authorities make clear, claims of this sort are fact sensitive. The question at each point at which detention was authorized is whether at that point the defendant was entitled to take through her officer the decision she did. At each stage the decision-maker must take into account all relevant circumstances, including circumstances that point to what is likely to happen in the future, but beyond that cannot be required to predict the future. It is fatally easy but wrong to attribute to a decision-maker knowledge of facts that have since transpired but had not then happened. In applying the standards of review, as set out at paragraph 6 above, the relevant factors on each date are those displayed by what was apparent at the time, not those displayed by what has in fact happened since."

25. I need not go back to paragraph 6, but in the course of his judgment the learned deputy judge sets out in full and scholarly form the material upon which cases such as the present are to be decided.
26. The other authority from which general comments were derived is that of Burnett J in R (on the application of EO, RA, CE, OE and RAN) v Secretary of State for the Home Department [2003] EWHC 1236 (Admin), and again from the body of the report, without it necessary to look at the individual facts in play in that case, he deals particularly with the issue of medical examination. He said:

"It is desirable that those conducting medical examinations have wide experience as general practitioners including experience of mental health. It is desirable that those conducting medical examinations have experience of dealing with victims of torture and other inhuman and degrading treatment. It is desirable that if there are physical signs which provide independent evidence to support an allegation of torture they are picked up as early as possible. There is no doubt about the underlying rationale of the policy. Those who have suffered torture in the past are disproportionately adversely affected by detention. That is why the Secretary of State will normally detain those in respect of whom there is independent evidence of torture only in very exceptional circumstances. However, in my judgment it is a mistake to conflate what is desirable with what is required by the policy operated by the Secretary of State in this area. The policy of the Secretary of State at that time (and for that matter Rule 35 itself) did not implicitly require the medical practitioner to provide any particular detail in his report or to have any particular specialist skill beyond that required by the 2001 Rules. Mr Brown also developed a submission to the effect that if the report were shown to be inadequate because, for example, the doctor concerned has missed some objective signs consistent with torture, that too would render detention unlawful because either the rule requires the examination to be thorough and competent or the policy requires it. In short, he submits that an examination carried out negligently would result in subsequent detention being unlawful. I do not accept that submission. The Secretary of State's policy, which is the vehicle through which the lawfulness of detention must in my judgment be gauged, determines that independent evidence of torture will tell against detention. It assumes that there will be a medical examination on entry into the system and that a medical practitioner will report on a case where he has concerns that the detainee may have been tortured. Rules 34 and 35 are important features in a process which is designed to ensure that case workers are provided with material upon which to consider the policy relating to torture. However, there is no failure by the Secretary of State to comply with her policy were a medical practitioner to miss signs of torture even if, for the sake of argument, a claimant could show that the failure was negligent in the Bolam sense: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582."

27. Later in the same judgment, from paragraph 65 onwards, the learned judge deals with the particular task of assessing evidence of torture and the interplay, if any, with the detainee's credibility. Having set out a few definitions he goes on at paragraph 68:

"The court contrasted 'independent evidence of torture' with proof that there had been torture. The same distinction is drawn in the Secretary of State's policy documents. There is a clear difference between something that amounts to independent evidence of a fact and proof of that fact. In making any finding of fact, the factfinder will weigh all of the evidence according different weight to different pieces. The credibility of a witness will be critical in determining the answer to any factual question; and when a witness is making a claim his credibility will be crucial. But that does not mean that a piece of evidence which supports his central claim is any less 'independent evidence' even if, in the end, the claim is rejected. The underlying credibility of a detainee does not, in my judgment, 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.

"The whole rubric of the relevant part of the policy is:

" 'The following are normally considered suitable for detention in only very exceptional circumstances'."

And then the full list has already been set out.

"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."

And it continues.

28. Against those preliminary factual findings and concessions and with the guidance and the authorities in mind, I consider the individual claims in this case. In relation to the first detention the claimant says that there is indeed independent evidence of torture. The defendant replies that all that there is in reality is the self-report of the claimant, which is set out by the doctor, whose only opinion in conclusion is that the account is consistent with torture.
29. In his skeleton Mr Mandalia goes on to say that there are other worrying issues about the claimant's position. Firstly, that he made no prior claim and indeed, when given the opportunity in the Morton Hall documentation, specifically disavowed any allegation of torture. Secondly, that there was no previous medical note and that, although there were recorded injuries by the doctor, including surgical scars, they were at least consistent with other matters and indeed that specifically the claimant himself had referred to having been involved in street fighting.
30. It is necessary for the decision-maker and me reviewing it to look at the whole passage from 123 to 124. I am entirely satisfied that the decision-maker was merely reciting the claimant's own narrative account. The scarring and surgical appearances set out on the body map are of course potentially consistent, as the doctor finds, but were not beyond that probative and there are other explanations.
31. Putting the matter shortly and properly in the context of this jurisdiction, I am satisfied that the decision-maker's decision and the analysis of it and explanation for it on page 120 is sound. The rationale is set out and, in my judgment, was open to the decision-maker. I am not satisfied that it could be said that there is independent evidence of torture, as was found by the decision-maker, whose decision, it seems to me, is not therefore impugned.
32. As to the subsidiary finding as to very exceptional circumstances, it seems to me, given the state of knowledge of the decision-maker, that there was proper evidence before him or her to the effect that there remained a high risk of absconding and a very high risk and an unacceptably high risk of absconding and risk to the public. The only contraindication to that was the claimant's own statement that there had been a diagnosis of prostate cancer made, but none of the other medical material with any suggestion of debilitation or impairment of functioning would have been known to the decision-maker. In my judgment, there was no realistic duty to make further extensive and wide-ranging inquiries.
33. In respect of the first period, therefore, and the first decision made in November, this claim must fail. The detention is lawful. By the time of the second decision in the February of 2016 the claimant's medical position of course was very much better known. On page 109 the doctor specifically gauges the report in terms of the first box which is ticked:

"This detainee's health is likely to be injuriously affected by continued detention or any conditions of detention."

34. I have already read the text on page 110. It seems to me that the text there is abundantly clear. Whilst one or two references appear to be second-hand and awaiting confirmation from the diagnosing hospital, it seems to me that the doctor's knowledge was extensive by this stage and I do not accept Mr Mandalia's point that there is any ambiguity or lack of clarity about it. It follows therefore that the response, short as it is on page 108, is, in my judgment, wholly inadequate. It does not engage in any meaningful sense with the reality of the medical position or the doctor's own views. It is in many ways a rather curious document. The doctor, entirely properly, because of the prompt on the tick box, was answering the specific question or highlighting the specific question about health being injuriously affected by continued detention. The response letter of 10 February does not appear directly to deal with that point.
35. In my judgment, the conclusion is irrational. In that sense it does not engage with the proper question or the tests which are very clearly and extensively, as I have sought to show, laid out in the guidance and it must be regarded as inadequate.
36. In the claimant's skeleton, at page 48, Mr Jesurum sets out over the next several paragraphs the problems as he submits there are with the procedure, which he describes as failing to give adequate consideration, failing to address the doctor's concern and in particular failing to deal with the very practical point made at the conclusion of the report as to the need for a multidisciplinary medical response.
37. The question of "satisfactorily managed", which of course is the vocabulary to which reference should have been made, is missing in the response letter and a different approach is set out. And I accept Mr Jesurum's criticisms of the approach, which accord with my own analysis of the case.
38. He also goes on to deal with what is a curious, in my judgment, further justification used by the defendant that the claimant was not in any event exercising Treaty rights. That is, in my judgment, a subsidiary issue to the main point, which I have already resolved in favour of the claimant, but in any event, in my judgment, for the reasons set out by counsel, is flawed in any event. The apparent lack of NHS provision, even if correct as a matter of statutory interpretation (about which I remain unpersuaded), must, in my judgment, be read subject to the test. The response in the letter is put in this way:

"Under the circumstances it is not accepted that your health will deteriorate if you remain in detention."

39. That is the wrong question, but in any event on the objective view of the facts is a wrong conclusion in any event. Furthermore, the phrase "treatment is better suited in detention", even if I ignore the apparent ambiguous language, is a very surprising response and, in my judgment, is unsupportable and therefore impugnable in this jurisdiction.
40. Although the discretion of the decision-maker is wide and the court's role to review is very limited, in this case I am quite satisfied that the second decision cannot stand. I therefore grant judicial review in relation to that second limb only. For the reasons that I have sought to explain, I declare that the detention pursuant to that second decision was unlawful in that it was not consistent with the medical report and did not engage with the consequences of that medical report. In those circumstances, pursuant to that declaration, there will be a grant of judicial review.
41. This is a judgment delivered simply with notes being taken but without learned counsel present. My view at the moment is that costs should follow the event, in other words, that the defendant should pay the claimant's costs, although since I have dismissed one limb of the judicial review and found on the other, there may be other arguments, in which case they can be set out succinctly in writing for me to determine in due course. If any further relief arises from my judgment or any consequential directions are required, again they can be dealt with. I will simply declare my decision today. I will invite any further submissions to be made in writing, if necessary by e-mail to me personally, within seven days. If not, an order setting out my decision can be drawn by the claimant for agreement by the defendant and the order will then issue from the Administrative Court.

SUPPLEMENTAL JUDGMENT

1. Following the delivery and transcription of the Judgment, I have received a joint approach by counsel inviting me to clarify and expand upon one aspect of the case. I am very happy to do so. Unfortunately, there was an administrative mix up which has delayed this short addition.

2. It has been drawn to my attention that the Judgment does not, in terms, deal with the question of "very exceptional circumstances" in relation to the second period of detention which I have found to be unlawful. It is rightly pointed out that it remains an important factor in the consequential decisions and orders which will have to be made.

3. Mr Mandalia, with scrupulous fairness and with the agreement of Mr Jesurum, has sent a further Note outlining the issue and drawing my attention to the evidential and legal materials of relevance. I express my gratitude to counsel for that. In the circumstances, essentially as an economic and proportionate step, I propose to deal with this outstanding matter on paper. It is unnecessary to convene a further hearing. In truth, I have not had to resolve an omitted issue but simply will give my reasons expressly for the decision I took. Although, it is probably clear, as a matter of inference, what my view of the point was, I now make it clear on the face of the Judgment.

4. By the time of the second Rule 35 report, as is clear from paragraph 15 of this Judgment, the claimant's health had deteriorated markedly. His cancer was widespread and the treatment to be given was likely to be palliative. He would need multidisciplinary help from medical and nursing staff. The medical certificate completed certified the injurious effect of detention.

5. This was a profoundly different situation from that which had existed earlier and at the date of the original detention which I found to be lawful. Then the matters relevant to the question of "very exceptional circumstances", for example the risks of flight or offending were highly significant.

6. In my judgment, the position had so changed and the claimant's medical situation had so deteriorated that the risks had reduced or evaporated to such an extent that it could not be said that the exception could arguably apply.

7. I need not refer again to the legal principles considered at the hearing or to the neutral submissions to be found in Mr Mandalia's Note. I am, however, completely satisfied that the presumption in favour of release has not been and is not arguably displaced in this case.

29 March 2017