QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the High Court)
| R (on the application of ZA)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Tom Brown and Saara Idelbi (instructed by the Government Legal Department) for the Defendant
Hearing dates: 14 and 15 December 2017
Crown Copyright ©
Michael Kent QC :
1) a failure to follow the Defendant's own guidance and policy on the detention of a person applying for asylum on grounds of his sexual orientation;
2) a failure to comply with Rule 34 of the Detention Centre Rules 2001 (2001 SI No 238) and/or policy, namely arranging for a physical and mental health examination by a medical practitioner within 24 hours of the Claimant's arrival at each of three detention centres;
3) unlawful delay in arranging a requested medical assessment for the purpose of Rule 35 of the Detention Centre Rules; and
4) maintaining detention contrary to the principles laid down in R v. Governor of Durham Prison ex parte Hardial Singh  1 WLR 704 (the Hardial Singh principles).
"(1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre.
(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.
(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request."
"Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise."
All detainees must receive an initial health care screening within two hours of their arrival at an IRC. An assessment of whether the detainee requires an immediate appointment with a doctor and where this is not required, a doctor's appointment to take place within 24 hours of the detainee's arrival at the centre must be offered."
"it is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in the detention policy would not found a claim in false imprisonment."
"As required by DC rule 34, the centre will ensure that arrangements are in place for detainees to have a physical and mental examination by the medical practitioner within 24 hours of their admission…"
"1. Our staff will ensure that within two (2) hours of admission to the STHF you will be screened by healthcare professional, with your consent.
3.Medical and psychological conditions past and current will be recorded.
6. A healthcare professional is available 24 hours a day should you have any healthcare issues arise (sic) or if further assessment is required.
9. You can request an appointment with a healthcare professional of the same gender if required. You may be seen immediately as far as practicable or within 24 hours of the request being made."
"The 2001 Rules are concerned with the regulation of the management of detention centres. They have no direct bearing on the power of the Secretary of State to detain. A failure to comply with those Rules does not render detention unlawful; neither does it give rise to a private law claim for breach of statutory duty."
"Special illnesses and conditions (including torture claims)
(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care."
"… sets out Home Office policy regarding:
a) The preparation of Rule 35 reports by medical practitioners; and
b) The process to be followed by Home Office staff in response to a Rule 35 report."
"The Rule 35 report, although it can come at any time and result from information or an examination which post-dates initial reception in the detention centre, is likely in many cases to be a product of the initial examination at which physical and mental health problems may well be revealed as well as issues relating to torture."
Thus the failure bears on and is relevant to continued detention rendering it thereafter unlawful in the same way that the failure to carry out detention reviews as required by Home Office policy rendered the detention unlawful in Kambadzi. In my view the approach of Burnett J in EO is to be preferred to the apparent approach of Blake J in LMC (I say apparent because it is not clear that he was ever invited to make findings to whether the detention was unlawful regardless of whether, applying a causation test, the Claimant could recover substantial as opposed to nominal damages).
"I was told I would be put on the waiting list and that it can take up to two weeks for the assessment to take place."
"118. In his statement, Mr Barrett opines that concerns relevant to Rule 35 may arise at any point of a person's detention, although it is most likely that they will be raised at the initial Rule 34 health screening. In Mr Barrett's view this does not rely on the detained person knowing about Rule 35 or requesting a specific Rule 35 examination. Mr Barrett states that the record number of Rule 35 reports in 2015 (2,038) suggests a high level of awareness of its importance among healthcare staff."
"You have requested that a Rule 35 report should be prepared by Healthcare staff in regard to your client's application prior to his asylum interview. You will be aware that every applicant is seen by member of the healthcare staff within 24 hours of their arrival and during the induction process the nurse ascertains from the person whether they have any medical condition that might impact on their detention or if they claim to have been victims of torture. Under the Rule 35 procedures of the Detention Centre Rules, the Healthcare staff are legally obliged to inform the Home Office if the person is likely to have been a victim of torture. No such report has been received in relation to you (sic). Nevertheless if your client feels this is necessary, it is open to him to approach Healthcare staff for their advice and assistance in this matter."
Ground 2: Causation
"[W]e refer to the above and enclose herewith signed form of authority for our above named client. Kindly note he wishes to claim asylum. We believed we had forwarded this F08 enforcement on 20 January 2016 however it has come to our knowledge you do not have us on record for [ZA]."
Policy and Guidance
The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate:
- to effect removal;
- initially to establish a person's identity or basis of claim; or
- where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.
55.1.3 Use of detention
Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted if that is likely to be protracted and/or there are no other factors present arguing more strongly in favour of detention. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who does not and is removable.
55.3 Decision to detain (excluding criminal casework cases)
1. There is a presumption in favour of temporary admission or temporary release - there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
2. All reasonable alternatives to detention must be considered before detention is authorised.
3. Each case must be considered on its individual merits…
55.3.1 Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including:
• What is the likelihood of the person being removed and, if so, after what timescale?
• Is there any evidence of previous absconding?
• Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
• Has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry).
• Is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave etc).
• What are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?
• What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?
Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified."
"At each review, robust and formally documented consideration should be given to the removability of the detainee. Furthermore, robust and formally documented consideration should be given to all other information relevant to the decision to detain. Additional reviews may also be necessary on an ad hoc basis, for example, where there is a change in circumstances relevant to the reasons for detention."
"that some individuals may hold a completely different perception of their own sexual identity from those implied by the term LGB or may be unaware of labels used in Western cultures. They may be unwilling to use the labels used in their language."
In section 3 there is this:
"Some LGB people may originate from countries in which they are made to feel ashamed, humiliated and/or stigmatised by their sexual identification. In response to societal pressure, explicit or implicit hostility and discrimination, and/or criminal sanctions, many LGB claimants will have kept aspects of and, sometimes large parts of their lives secret some will have, in addition to hiding their identity, evaded detection by engaging in a lifestyle which conforms to normative cultural heterosexual stereotypes… Discussing matters such as sexual identity may be unfamiliar to some people and in an official context such as the asylum interview, may prove additionally daunting. Some LBG [sic] asylum seekers may struggle to talk openly about their sexual identification due to feelings of shame, painful memories or cultural implications, and may find it difficult to establish trust with an interviewing officer—this may help to explain why they may appear to be evasive."
"I asked why he had not applied for further leave in the UK or returned home. He stated that he had not been supported by his college and that he did not want to return home because life is difficult in Pakistan because there is no work. He prefers to live in the UK. I asked if there was any other reason he did not want to return to box on and he said 'no nothing'. No HR issues raised when prompt/opportunity provided."
"He speaks and understands English very well. I have explained to him that his student visa expired in August 2012 that he made no application for further leave beyond that. He was served papers yesterday and detained pending his removal UK. He has accepted all of this and appears to be resigned to returning to his home country."
"Unsure sexuality. Met a few girls tried sex with them. Unable to have sex with them. Tried 2 or 3 times more to make sure. Now having sex with males. If I go back naturally parents want to arrange marriage and I can't tell them about it. I will lose my identity because I do not know if I am a male or female."
"I agree with the above recommendation. In light of the subject's immigration history it is considered he poses an abscond risk; he overstayed for 4 years, was encountered leaving the country and only claimed asylum after his arrest. Detention is considered appropriate and proportionate and in accordance with chapter 55 of the EIG."
"The claimant is currently unsure of his sexual preference and gender identity. He has recently had intercourse with three men and is also questioning whether he identifies as a man or a woman. This is a recent development for the Claimant which he is trying to come to terms with. During attendance with the claimant on 19 February 2016, he informed instructing solicitors that as a result of this confusion, he has suffered from mental health problems and sleeping problems. He is coming to terms with his sexual preference and gender identity, which is causing much distress and is impacting upon his mental health."
"(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 a 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."
"If however the application is refused and attracts an in-country right of appeal, case owners should consider very carefully whether detention remains appropriate while the appeal is being processed."