EO & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin)

“55.1.1.General To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy. 55.3.1. Factors influencing a decision to detain • Does the subject have a history of torture? 55.8A. Rule 35 - Special Illnesses and Conditions Rule 35 of the Detention Centre Rules 2001 sets out requirements for healthcare 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; • Any detained person suspected of having suicidal intentions; and • Any detained person for whom there are concerns that they may have been a victim of torture. Healthcare staff are required to report such cases to the centre manager and these reports are then passed, via UKBA contact management teams in centres, to the office responsible for managing and/or reviewing the individual’s detention. The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case. If it appears that the matters being considered under Rule 35 represent a significant risk to children, then it should be referred to the case owner and the Children’s Champion simultaneously for advice on how to safeguard the children and promote their welfare. Upon receipt of a Rule 35 report, caseworkers must review continued detention in light of the information in the report (see 55.8 – Detention Reviews) and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro- forma. If the detainee has an asylum or HR claim (whether concluded or ongoing), consideration must be given to the instruction: 55.10 Persons considered unsuitable for detention Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. In CCD Criminal Casework Directorate cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention. The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: • Unaccompanied children and young persons under the age of 18 (but see 55.9.3 above); • The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention; • Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl’s Wood); • Those suffering from serious medical conditions which cannot be satisfactorily managed within detention; • Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act; • Those where there is independent evidence that they have been tortured; • People with serious disabilities which cannot be satisfactorily managed within detention; • Persons identified by the Competent Authorities as victims of trafficking (as set out in Chapter 9).”

“This instruction is intended to provide instruction on mandatory actions and considerations to be taken where a report is issued under Rule 35 of the Detention Centre Rules 2001. There are no exceptions to the mandatory character of the actions and considerations.”

“21.—(1) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations. (2) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall pay special attention to any prisoner whose mental condition appears to require it, and make any special arrangements which appear necessary for his supervision or care.”

“The decision on such questions is for the court itself, and does not depend upon on the application of the Wednesbury principles of review.”

“I would therefore answer “yes” to the first question. I would also answer the second question in the way proposed by Lord Dyson JSC. In other words, the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result – which is not the same as saying that the result would have been different had there been no breach.”

“there would be a private law claim only if the misuse amounted to an abuse of power (including but not limited to cases of misfeasance or other conscious misuse of power).”

“The essential question must be whether there is an adequate connection between compliance with the duty and the lawfulness of the detention.”

“[70] Sometimes a statute puts the effect of a failure to follow procedural requirements beyond doubt. Section 34(1) of the Police and Criminal Evidence Act 1984 states that ‘A person … shall not be kept in police detention except in accordance with the provisions of this Part of this Act’; those provisions require regular reviews; failure to conduct those reviews on time renders the detention beyond the time when they should have been conducted unlawful; see Roberts v. Chief Constable of Cheshire Constabulary [1999] 1 WLR 662. Sometimes a statute does not say in so many words that failing to comply with one of its procedural requirements will render the resulting detention unlawful’ but the courts will construe the statute to mean that it does. An example is the prohibition in s 11(4)(a) of the 1983 Act, of making an application for compulsory admission to hospital if the patient’s nearest relative objects: Re S-C (mental patient: habeas corpus) [1996] QB 599. In these cases, it is irrelevant that the person concerned could have been lawfully detained had the correct procedures been followed. Sometimes, however, the court will conclude that the lawfulness of the detention does not depend upon the fulfilment of a particular statutory requirement. For example, in R (on the application of D) v Secretary of State for the Home Department, R (on the application of K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin), it was common ground that failing to comply with the requirement in the (Immigration) Detention Centre Rules 2001, SI 2001/238 that immigration detainees be given a medical examination within 24 hours of arrival did not render the detention unlawful unless the detainees could show that it would have led to their earlier release. [71] In short, there are some procedural requirements, failure to comply with which renders the detention unlawful irrespective of whether or not the substantive grounds for detention exist, and some procedural requirements, failure to follow which does not have this effect. If the requirement is laid down in legislation, it will be a matter of statutory construction into which category it falls. A clear distinction can be drawn between a requirement which goes to whether or not a person is detained and a requirement which goes to the conditions under which a person is detained. If the grounds exist for detaining a person in a mental hospital, for example, and the procedures have been properly followed, it is not unlawful to detain him in conditions of greater security that are in fact required by the nature and degree of his mental disorder.”

‘(1) Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial decision, and thereafter monthly. (2) The Secretary of State shall, within a reasonable time following any request to do so by a detained person, provide that person with an update on the progress of any relevant matter relating to him.’

“[51] The question then is what is to be made of the Secretary of State’s public law duty to give effect to his published policy. In my opinion the answer to that question will always be fact-sensitive. In this case we are dealing with an executive act which interferes with personal liberty. So one must ask whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he has under the statute. Unlike the 2001 Rules, Ch 38 of the manual is concerned with the lawfulness of the detention. That is made clear in the opening paragraphs, see para [18], above. It has been designed to give practical effect to the Ex p Singh principles to meet the requirement that to be lawful, the measures taken must be transparent and not arbitrary. It contains a set of instructions with which officials are expected to comply: see para 1(3) of Sch 2 to the 1971 Act. As I see it, the principles and the instructions in the manual go hand in hand. As Munby J said in para [68], the reviews are fundamental to the propriety of continued detention. The instructions are the means by which, in accordance with his published policy, the Secretary of State gives effect to the principles. They are not only commendable; they are necessary. [52] The relationship of the review to the exercise of the authority is very close. They too go hand in hand. If the system works as it should authorisation for continued detention is to be found in the decision taken at each review. References to the authority to detain in the forms that were issued in the appellant’s case illustrate this point. Form IS 151F, which is headed ‘Monthly Progress Report to Detainees’, concludes at the top of page 3 of 3 with the words ‘Authority to maintain detention given’, on which the officer’s comments are invited and beneath which his decision is recorded. The discretion to continue detention must, of course, be exercised in accordance with the principles. But it must also be exercised in accordance with the policy stated in the manual. The timetable which para 38.8 sets out is an essential part of the process. These are limitations on the way the discretion may be exercised. Following the guidance that Nadarajah v Secretary of State for the Home Dept [2004] INLR 139 provides (see paras [39] and [40] above), I would hold that if they are breached without good reason continued detention is unlawful. In principle it must follow that tortious remedies will be available, including the remedy of damages.”

“The only question, therefore, is what the limits are to the Home Secretary’s power. In particular, are there procedural as well as substantive limits?”

“It is not statute, but the common law, indeed the Rule of Law itself, which imposes upon the Secretary of State the duty to comply with his own stated policy, unless he has a good reason to depart from it in the particular case at the particular time. Some parts of the policy in question are not directly concerned with the justification and procedure for the detention and have more to do with its quality or conditions. But the whole point of the regular reviews is to ensure that the detention is lawful. That is not surprising. It was held in Tan Te Lam, above, that the substantive limits on the power to detain were jurisdictional facts, so the Secretary of State has to be in a position to prove these if need be. He will not be able to do so unless he has kept the case under review. He himself has decided how often this needs to be done. Unless and until he changes his mind, the detainees are entitled to hold him to that. Just as Mr Leachinsky's detention was unlawful even though there were in fact good grounds for arresting him, the detainees' detention is unlawful during the periods when it has not been reviewed in accordance with the policy, irrespective of whether or not the review would have led to their release. In my view, Munby J was right to hold that the reviews were "fundamental to the propriety of the continuing detention" and ‘a necessary prerequisite to the continuing legality of the detention.’ ”

“For the reasons given in D & K and PB, the policy on medical examinations is closely related to the decision to detain because such examinations may well reveal independent, corroborating evidence that the person examined has been tortured and is not, therefore, generally suitable for detention.”

“For the purposes of this Convention, the term “torture” 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, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity….”

“[T]he lesion could not have been caused by the trauma described.” “Consistent” means: “[T]he lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes.” “Highly consistent” means: “[T]he lesion could have been caused by the trauma described, and there are few other possible causes.” “Typical of” means: “[T]his is an appearance that is usually found with this type of trauma, but there are other possible causes.” “Diagnostic” means: “[T]his appearance could not have been caused in anyway other than that described.” “[T]he lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes.” “Highly consistent” means: “[T]he lesion could have been caused by the trauma described, and there are few other possible causes.” “Typical of” means: “[T]his is an appearance that is usually found with this type of trauma, but there are other possible causes.” “Diagnostic” means: “[T]his appearance could not have been caused in anyway other than that described.”

“The following are normally considered suitable for detention in only very exceptional circumstances.”

“… if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation…”

“The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused.”

“Torture can be taken to include, for example, rape or other serious forms of psychological, physical or sexual violence. [List is taken from Article 17 of the Reception Directive] The term torture has a very specific meaning in human rights law, as a particular severe form of ill-treatment. The use of the term ‘torture’ throughout this instruction is not generally intended to be understood in the legal sense unless it is clear from the content that this is the case. [Taken from the Torture Reporting Handbook produced by the University of Essex]”

“23. The definitions of torture, ill-treatment and serious harm were not intended as treatises on the subjects, but rather as broad guidance for the case owners. The definitions were developed by me in collaboration with the UKBA official involved in the negotiations at that time. … 24. The definition of “torture” in the Asylum Policy Instruction is consistent with the Government’s general approach to the meaning of torture in the asylum context. Section 1(5) of the Asylum and Immigration Act 1996 amended paragraph 5 of Schedule 2 to the Asylum and Immigration Appeals Act 1993 such that accelerated procedures will apply in certain circumstances but not (inter alia) “if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.”

“In my clinical experience, people who have been subjected to detention and torture before coming to the UK and who are then placed in immigration detention find it particularly distressing to find themselves once again in a locked, prison-like environment; to hear or see the distress of other detainees (for example cell-mates who scream in their sleep as a result of nightmares); to interact with officers in uniforms (which may remind them of the of the clothes worn by their torturers); to see and hear doors being locked and unlocked repeatedly; and to be cut off from normal life. In these conditions they are at risk of experiencing involuntary and repeated reminders of their torture as re-traumatizations. Many torture victims who have subsequently been held in immigration detention in the UK have intrusive thoughts, nightmares and flashbacks related to their immigration detention that are as distressing (sometimes more distressing) than their re-experiencing of their past torture.”

“Allegation of torture in Nigeria in 2008-2009, was beaten and sustained injuries to nose and scalp Scars 1. Nose deformed due to possible fracture? Nasal bone. 2. 0.3 cm scar bridge of nose. 3. Multiple scar x 4 on scalp ranging from 5 cm to 1 cm. 4. Scar 1 cm on lower lip.”

“ … it would be extremely unusual to see such extensive scarring in someone who has not been severely injured. Whilst there are credible alternative explanations for some of his marks – for example the facial scarring could be the result of acne, on the whole I would see the pattern of scars which he attributes to his beating as typical of the extremely violent assault he describes.… In contrast to his uncertainty about individual scars from the assault, he is very clear in his account of how the scars which he attributes to the juju man were made. The appearance of these scars is diagnostic of cuts deliberately inflicted, and the keloid formation is typical of scars in which irritant material has been placed. The psychological symptoms he describes are consistent with depression. His distress when describing the death of his wife and children was clear. …”

“As a young girl I was beaten by my father and mother at home. I was 21 and had a boyfriend and we agreed that we needed to leave this environment. My boyfriend knew gang members. They agreed to get us out of the country. They told us that we needed to carry drugs for them. I refused and ran away. They later captured me, abducted me and took me to a house where I was raped and beaten repeatedly. I was there for two days. I then agreed and complied with them to carry drugs. My boyfriend was given 1500 USD. I did not inform the Bolivian police as I was in fear of my life. My boyfriend left with the money. I hid myself in a small place called Copacabana. I entered the UK via Spain and Dublin Ireland. If I returned to Bolivia I will be captured by the gang. The police in Bolivia are not aware of what I did. The drugs were removed in Chile in a place called Chuychuy by a surgeon with ? men present. I was very frightened and returned to my mother and told her what happened. I am in great fear for my life.”

“I am writing to you to acknowledge receipt of [the report] notifying us of a torture claim. Information contained within the report has been considered and the decision to detain you has been reviewed as per Detention Service Order 03/008. It is noted you last arrived in the UK on 28 June 2011 however you have only recently informed UKBA of your claim of torture and these circumstances once you were in detention and awaiting removal some 6 months later. Your Human Rights application submitted on 5 December was refused and certified on 21 December. Your judicial review lodged on 6 December 2011 … is currently outstanding. [He then summarised the material set out above from the rule 35 form.] The allegation of torture form (rule 35) merely repeats your accounts of ill-treatment as opposing to making a diagnostic finding about your injuries. It is noted the Doctor writing the report has not suggested that your detention is inappropriate and there has been no recommendation to release you. You were requested to confirm if you wished to claim Asylum and on 9 January 2011 you stated you did. We will therefore be making arrangements to complete a Screening Interview for you and your claim of ill-treatment will therefore be given full consideration in your Asylum claim.”

“I have considered the appellant's account with the most anxious scrutiny. I make the following findings. I do not find the appellant to be a credible person. I find that the appellant has advocated her claim solely for the purpose of obtaining status in the United Kingdom. I find that she did not arrive in the United Kingdom on 20 June 2011 but had been in this country all along. I find that the appellant was not abducted by the Sinaloa drug cartel. She was not asked or made to traffic drugs for them. She was not ill-treated by them. She was not abducted and raped by them in Spain in 2007. She was not abducted by them in Bolivia in 2009. I find the appellant's account was a total fabrication. The appellant would not be at risk on return to Bolivia. She was of no adverse interest to the Sinaloa or anyone else.”

“The Defendant’s treatment of the Claimant, in particular the forcible attempt at removal on 26 January 2012 whilst the Claimant was acutely unwell, amounted to inhuman and degrading treatment.”

“It is entirely inappropriate – if not an abuse of process – to attempt to reintroduce the earlier claim at the close of day three of a three day judicial review claim in circumstances where (i) OE’s representatives must have been fully aware that the earlier claim for judicial review had addressed such matters; (ii) that permission to bring that claim had been refused; (iii) the claim had been certified as being totally without merit; and (iv) no attempt had been made to renew that application.”

“States she has no scars from injuries she claims to have received from the torture.”

“It was not, however, possible to serve the decision on the Claimant at this point owing to a more general issue in respect of returns to Sri Lanka. The decision that the Claimant would at least be given an in-country right of appeal was treated as a change in circumstances which required the Claimant’s detention to be reviewed. It was assumed that the Claimant would exercise her right of appeal in respect of an adverse decision, and accordingly it was concluded that removal could no longer be said to be imminent. Further, a forthcoming appeal was likely to encourage the Claimant to comply with reporting restrictions until the date of that appeal, and therefore the risk of absconding prior to that appeal was reduced. Accordingly, it could not longer be said that there were ‘very exceptional circumstances’ such that detention should be maintained. Steps were therefore taken to release the Claimant, and she was released on 11 October 2012.”