Thavarajah, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 208 (Admin)

Case No CO/2292/2014[2015] EWHC 208 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/02/2015
Before
PROFESSOR ELIZABETH COOKE(Sitting as a Deputy High Court Judge)
Between
THE QUEEN (on the application of) SIYAMALA THAVARAJAHClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Zainul Jafferji (instructed by Tamil Welfare Association of Newham) for ClaimantMr Simon Murray (instructed by The Treasury Solicitor’s Department) for DefendantHearing Hearing dates: 27/01/2015
JudgmentProfessor Elizabeth Cooke:
[1]Siyamala Thavarajah is an asylum seeker whose application for asylum was refused in 2013 by the Secretary of State and whose appeals from that refusal to the First Tier Tribunal and the Upper Tribunal were rejected. She made a further application for asylum on 13 May 2014, to which I refer throughout this judgment as her “Further Submissions”; she applies for judicial review of three decisions, namely: i) the decision made on her Further Submissions on 17 May 2014; ii) the setting of directions for her removal on 18 May 2014; iii) her detention from 13 May 2014 onwards.[2]She succeeds in her challenge to the first and third decisions. I find that in making a decision on the Claimant’s Further Submissions the Defendant failed to follow one of her own policies, and I find that that failure also made the claimant’s detention unlawful, at least from 17 May 2014 onwards. The challenge to the removal directions is now academic and I make no decision about it. The Claimant’s challenge to her detention from 13 May 2014 on the basis of the report made to the Defendant pursuant to rule 35 of the Detention Centre Rules fails.

The facts

[3]The following facts are not in dispute. The Claimant is a Sri Lankan national born on 15 April 1991. She entered the UK as a student in 2011 with Tier 4 entry clearance valid until 3 November 2012. On 3 November 2012 she applied for leave to remain as a Tier 4 student and on 13 March 2013 that application was refused.[4]On 26 June 2013 she made an asylum claim on the basis that she had been tortured in Sri Lanka and would be in danger of further torture if she returned.[5]Her claim for asylum was refused on 14 July 2013; she appealed to the First Tier Tribunal and her appeal was dismissed on 23 October 2013; an appeal to the Upper Tribunal was dismissed on 4 February 2014.[6]The Claimant was detained by the immigration authorities on 6 May 2014. She was medically examined in detention, and a report under Rule 35 of the Detention Centre Rules was made on 11 May 2014. On 12 May 2014 removal directions were set for 18 May 2014.[7]On 13 May the Claimant made further submissions in support of her claim for asylum. She did so by means of two letters, about which I shall have more to say, both dated and faxed to the Defendant on 13 May 2013; I refer to those two letters together as the “Further Submissions”. The second letter notified the Defendant that the Claimant had been accepted for pre-assessment by the Helen Bamber Foundation. The Helen Bamber Foundation is a charity that works with victims of torture and of human rights violations.[8]On 13 May 2014 the Defendant wrote to the Claimant reviewing, and continuing, her detention. The Defendant made a decision on 17 May 2014 refusing the Further Submissions and also deciding that they did not amount to a fresh claim for asylum. On that same date Nicol J issued an order in these proceedings, preventing the Claimant’s removal on the following day; on 19 May 2014 the Claimant’s claim for judicial review was issued. On 21 May 2014 the Claimant was served with an IS.96, a notice of temporary admission, and was granted temporary release.

The decisions under review

[9]The Claimant’s claim form, dated 19 May 2014, states on its second page that it challenges two decisions: i) the D’s refusal to treat the Further Submissions dated 13 May 2014 as constituting a fresh asylum claim and ii) her continued detention at Yarlswood IRC.[10]The form then makes three points in the box headed “Detailed statement of grounds”: i) that the D in not suspending decision-making with respect to the Claimant’s 2014 Further Submissions failed to apply her own policy, which required her to suspend decision-making once she had been accepted for pre-assessment as a victim of torture by the Helen Bamber Foundation. ii) that the decision to remove the C on 18 May 2014 was unlawful because her Further Submissions had not been properly determined. iii) That the decision to continue to detain the C in light of the rule 35 report and the appointment with the Helen Bamber Foundation was unlawful.[11]Accordingly, although the claim form puts the Claimant’s case in two rather different ways, it has been clear from the outset that there are three decisions being challenged; the Claimant’s Grounds for Judicial Review are set out on that basis.[12]The interim injunction granted on 17 May 2014 of course preceded the issuing of the claim form and the permission stage; the Claimant was refused permission on the papers by HHJ Allan Gore QC on 1 August 2014 but was granted permission by Andrew Grubb sitting as a Deputy High Court Judge on a renewed oral application on 30 September 2014. There was a hearing before me on 27 January 2014, and I am grateful to counsel for the Claimant, Mr Jafferji, and for the Defendant, Mr Murray, for their very helpful arguments.[13]Two working days before the hearing, on Friday 23 January 2014, the Claimant made known to the Defendant and to the court office that she also sought to challenge her detention on the basis that the Detention Centre Rules require that a detainee be medically examined within 24 hours of arrival. It appears that the “rule 34 examination” did not take place until 10 May 2014. At the hearing on 27 January Mr Jafferji applied to amend the grounds for judicial review in order to add in this further ground. I refused that application on the basis that it was made far too late.[14]I turn therefore to consider the three challenges. It is not in dispute that I am to review each of the decisions concerned in this case on traditional judicial review grounds, including irrationality/Wednesdbury unreasonableness, failure to take into account relevant considerations, and so on; this court is not to re-make the decision afresh.

The D’s treatment of the Claimant’s 2014 Further Submissions

[15]In order to explain the nature of the Claimant’s Further Submissions I have to give a little more background to her claim for asylum and to the decisions taken by the Secretary of State and by the First Tier and Upper Tribunal about her initial asylum claim. I will then look at the Further Submissions themselves and the law applicable to them, and at the Claimant’s grounds of challenge, and explain my conclusion that the Defendant acted unlawfully in refusing those Further Submissions.

The Claimant’s asylum claim

[16]The Claimant seeks asylum because, she says, she was raped and tortured by members of the army in Sri Lanka before she left because she was suspected of involvement with the LTTE, also known as the Tamil Tigers. She has scars in a number of places on her body and she produced medical evidence in support of her asylum claim, from Dr Josse, who reported that some of her scars were consistent with cigarette burns, others with being cut with a knife or with trauma from a blunt hard object.[17]The Claimant’s appeal against the refusal of her asylum claim failed in the First Tier Tribunal; Judge Bryant found that her account was not credible because aspects of it appeared implausible. The Judge was not persuaded by the medical evidence because it was not sufficiently consistent with the Claimant’s account, and did not explore the causation of the scarring by considering the likelihood of other causes.

The Further Submissions and the law applicable to them

[18]An applicant for asylum may add further submissions to his or her application. Sometimes circumstances change, or further evidence comes to light; there is nothing to prevent further submissions being made and sometimes they are successful. On receipt of further submissions the Defendant has to decide whether to accept or reject them and, if she rejects them, then to decide whether it amounts to a fresh claim; if it does, the Claimant has appeal rights; accordingly, the two-stage nature of that assessment of the further application is important. Rules 353 and 353A of the Immigration Rules state:
“353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. 353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.”
[19]The Claimant’s Further Submissions were made in two letters dated 13 May 2014. The first set out some further evidence and attached documentation, including evidence about her father, and a further letter from the doctor whose evidence had failed to impress the First Tier and Upper Tribunals. The second alerted the Defendant to the fact that she had been accepted for pre-assessment appointment by the Helen Bamber Foundation and asked the Defendant not to make a decision on the Further Submissions pending that assessment, in the light of her own policy.[20]However, on 17 May 2014 the Defendant wrote to the Claimant refusing her Further Submissions and deciding that they did not constitute a fresh claim, following the two-stage decision procedure prescribed by rule 353.

The Claimant’s challenge to the decision taken about the Further Submissions

[21]The Claimant says that the Defendant’s own policy requires that instead of making a decision on the Further Submissions the Defendant should have waited for the outcome of the assessment by the Helen Bamber Foundation.[22]A caseworker considering further submissions in support of an asylum application is intended to have in mind a number of policy documents. One is “Asylum Policy Instruction: Further Submissions” dated May 2014; that document refers the caseworker (at 1.1 of the May 2014 edition) to a further policy document, “Considering Asylum Claims and Assessing Credibility”, a detailed document which refers the caseworker to a number of further policies including, at 4.3.8 of the May 2014 edition, the policy entitled “Asylum Policy Instruction: Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service” dated 17 January 2014.[23]That policy explains at paragraph 1.1:
“This guidance explains how caseworkers should process and consider asylum claims involving allegations of torture or serious harm where a Medico-Legal Report (MLR) from the ‘Medical Foundation Medico-Legal Report Service’ at Freedom from Torture or the Helen Bamber Foundation forms part of the evidence.”
[24]Paragraph 1.3 states that the policy intention when processing claims involving allegations of torture and considering medico-legal reports from either of those two foundations is to:• “ensure all asylum claims are properly considered in a timely and sensitive manner on an individual, objective and impartial basis;• ensure all cases are managed effectively throughout the asylum process to avoid unnecessary delay;• ensure all relevant medico-legal (and any other) evidence provided by the Foundations in support of the claim is properly considered and given appropriate weight.”[25]Paragraph 2.3 explains: “Once the applicant has been referred to one of the Foundations, from whatever source, for an MLR, the referral is assessed by the Foundation and, on the basis of the information contained in it; a decision will be made to:• Reject the request without an appointment or;• Invite the applicant to attend a ‘pre-assessment’ interview; or• Move directly to an appointment with a clinician. Although this varies between the Foundations, only approximately 30 per cent of applications are accepted for pre-assessment. The decision not to invite an applicant for an assessment does not necessarily reflect upon the applicant’s credibility.”• Reject the request without an appointment or;• Invite the applicant to attend a ‘pre-assessment’ interview; or• Move directly to an appointment with a clinician.[26]Paragraph 2.4 states:
“When the caseworker is informed in writing by the applicant’s legal representative that the case has been accepted for a pre-assessment appointment, they should normally suspend the substantive decision if they are not minded to grant any leave (see section 2.8 below)… However, there may be cases where the applicant’s account of events, including incidents of torture, is accepted but this does not give rise to a need for international protection where, for example, the country situation has changed or there is sufficiency of protection. In such cases the caseworker may proceed to decision without waiting for the MLR but should first contact the legal representatives and give them an opportunity to provide representations as to why the decision should be suspended to wait for the MLR.”
[27]The Claimant says that therefore no decision should have been taken on her Further Submissions, and that in issuing a decision rejecting them and deciding that they did not constitute a fresh claim the Defendant has failed to follow her own policy. The Defendant argues first that the policy was not relevant, either because it applies only to initial applications for asylum and not to further submissions, or because this was not a “substantive decision” referred to in paragraph 2.4. Alternatively, if I have understood correctly, the Defendant argues that the decision is in accordance with the policy.

Was the policy applicable to this decision?

[28]The Defendant argues first that the policy was applicable only to initial applications for asylum. Yet it does not say so and one would not understand that from its language. Mr Murray said that this was a matter of logic and reflects the need for finality; it would be impracticable to allow claimants to continue to have fresh applications held up by the need to await a report from either of the foundations. If the policy applied to further submissions it would provide a method of routinely frustrating removal.[29]That is not an argument from logic, but it is indeed about the wish for finality; it is an argument from convenience and practicality, motivated by the wish not to clog up the system with applicants seeking to delay removal.[30]But that is not a realistic concern, or at least not one which ought to outweigh the pursuit of the objectives behind the policy. For one thing, it will not happen in many cases; one would normally expect that an application to one of the foundations would be made along with an initial claim for asylum. For another, no case will be delayed more than once on this basis. Set against that is the objective, referred to in paragraph 24 above, that a report from one of the foundations be properly considered and given appropriate weight. Suspending a decision on further submissions in order to wait for a foundation report may enable some applicants to play the system. But it will bring expertise to bear on the case, which may reveal something that has been overlooked or wrongly discounted earlier in the process, perhaps where a claimant has been let down by expert witnesses who had not wholly understood her situation, and in some cases that may make all the difference. It is not known into which category this case falls. It makes sense that the Secretary of State’s policy should encompass further submissions, even if that means that a few unmeritorious cases will be delayed.[31]Mr Jafferji pointed out that in ZO (Somalia) [2010] UKSC 36 the Supreme court considered the scope of the Reception Directive (Council Directive 2003/9/EC), which protects the living standards of asylum seekers in the European Union. The Supreme Court held that the term “application for asylum” applied not only to initial claims but also to further submissions, and was unimpressed by the argument that to extend the protection of the Directive to asylum seekers making further submissions would clog up the system (see in particular Lord Kerr at paragraph 31). That is of course a decision about the construction that directive, but the reasoning is helpful here.[32]Mr Murray also explained that the policy applies only to “substantive decisions”, by which he said was meant appealable decisions. Again, there is no indication in the wording of the policy that this is what “substantive” means. In this case, as discussed above, there is a two-stage decision process, as the Defendant had to rule on the Further Submissions and then to say whether they amounted to a fresh application. The latter goes to the appeal rights and could be described as procedural but I do not see why the decision on the Further Submissions, as an asylum application, is not substantive.[33]The policy is dated January 2014. Accordingly if there had been any intention to restrict its application to first applications for asylum, or to appealable decisions, then there has been ample recent opportunity to spell that out. The court bundle includes an internal memorandum apparently written by one of the Defendant’s officials to another and referring to the Claimant’s judicial review case. It says:
“I have sought advice from Policy Colleagues [names redacted]: “The policy intention is to delay, for a short period, a decision at first instance in cases accepted for a pre-assessment appointment with the Foundations. Section 2.4 does not cover further submissions (not least because asylum seekers are expected to put their case forward at the earliest opportunity and could have approached the Foundations much earlier in the process) particularly since they are now signposted to such organisation at the screening and interview process. However, it could be read to include a decision on further submissions and for the next update we will clarify the ambiguity in Section 2.4 and add a section on further subs explicitly (we will need to have a think about what our policy should be on further subs granted an appointment).”
[34]It is not clear what if any weight should be afforded to that memorandum; it reports the opinion of an official, who may or may not have been involved in devising the policy, and formed in the light of the present case. I do not think it adds anything to the fact that the policy says nothing to indicate that it applies only to first applications for asylum or only to appealable decisions. There is no reason why it should be so limited. The objective of the policy is that the views of the Foundations should be available to the Secretary of State when she makes substantive decisions, and that objective would be frustrated by a blanket rule that the policy is irrelevant to Further Submissions.[35]Accordingly the policy was relevant to this decision.

Was the decision made in accordance with the policy?

[36]The Defendant argues that the policy is not in absolute terms; it says only that decisions will “normally” be suspended pending a report from one of the foundations. Literally, therefore, the decision taken in this case might not appear to flout the policy.[37]The 2006 version of the policy was in more absolute terms. It said:
“… all cases that have been accepted by the Medical Foundation will be placed on hold pending the outcome of the pre-assessment, as long as evidence of the appointment is provided in writing.”
[38]The current edition has added the word “normally” and then added the subsequent paragraph, quoted above. This gives us an indication as to why the more absolute version of the policy, in 2006, has now been qualified by the word “normally”. The paragraph that follows says that decisions need not be held up where the applicant does not need that delay because his or her application is going to be granted anyway. In other words, “normally” appears to be an applicant-friendly qualification. There is nothing to indicate that the decision maker ought to assess the applicant’s chances with the foundation, and go ahead with a decision on the basis that, in the judgment of the case worker, the applicant has no hope of a favourable report. The wording of the policy, which sets out only an applicant-friendly exception, suggests otherwise. And the objective of the policy would be frustrated if the case-worker could pre-empt the foundation’s opinion in that manner.[39]In fact the decision letter of 17 May makes no mention of the policy. It appears therefore, not that the case-worker sought to pre-empt the content of the Helen Bamber Foundation’s assessment by making a judgement that it would not assist the applicant, but that the case-worker gave no thought to the policy.[40]Accordingly I conclude that the Defendant acted unlawfully in failing to follow her own policy in taking decisions on the Further Submissions on 17 May 2014. The policy was applicable in the circumstances, the decision taken fails to follow the policy; far from there being any explanation as to why that should be so, it appears that no thought was given to the policy.

Lawfulness of removal directions

[41]The Claimant seeks a declaration that the directions for her removal, set on 12 May 2014, were unlawful as a consequence of the unlawful decision to refuse her Further Submissions. Her argument is simply that if it was wrong not to defer consideration of those Further Submissions until after the report of the Helen Bamber Foundation was available, then it was unlawful to deport her in the meantime.[42]That must be right as a general proposition. The challenge to the removal directions, set on 12 May 2014 is academic, because they were cancelled. The claimant says that the point has a bearing on the review of her detention. She was detained in order to facilitate her removal; she argues that that detention was unlawful once it became clear that she was not going to be removed imminently because the Secretary of State must wait for the report of the Helen Bamber Foundation. Thus if the removal was unlawful, the detention was unlawful.[43]In reality the reasoning so far as the detention goes is wider than that. If the decision on the Further Submissions was premature, then any removal – not merely the flight on 18 May 2014 – was going to be impossible pending the Helen Bamber Foundation report. Accordingly the review of the detention does not depend upon the legality of the removal directions set for 18 May.[44]The directions for removal on 18 May were set on 12 May. It is not clear at what point it is said that they became unlawful: was it on 13 May 2014 when the Defendant was notified of the pre-assessment by the Helen Bamber Foundation? Was it on 17 May 2014 when the Defendant made a decision on the Further Submissions? That issue will have to be addressed when I come to consider the lawfulness of detention; so far as the removal directions there has been no argument as to the date on which they became unlawful. The challenge to the directions set on 12 May 2014 is academic, and does not determine the outcome of the challenge to the claimant’s detention, and so I make no decision about the removal directions. They were cancelled and there is an end of the matter.

The challenge to the Claimant’s continued detention after 13 May 2014

[45]The Claimant says that the Defendant acted unlawfully in continuing to detain her for two reasons. First, because the Defendant should have released her on receipt of the rule 35 Report and second, because the Defendant should have released her on being told of the pre-assessment appointment with the Helen Bamber Foundation.[46]I address those two challenges in turn. The first clearly fails. The second succeeds, because it follows from what I have already said about the Defendant’s failure to follow her own policy in taking a decision on the Claimant’s Further Submissions on 17 May 2014.

(i) The lawfulness of detention following the rule 35 Report

[47]On 11 May 2014 the Claimant was examined, in detention, by the medical practitioner at Yarlswood. He submitted a report in accordance with Rule 35 of the Detention Centre Rules. On the first page of the Report he ticked two boxes which state (and of course these are the words on the form, not the doctor’s own words), respectively:• “The detainee’s health is likely to be injuriously affected by continued detention or any conditions of detention• I have concerns that this detainee may have been the victim of torture.”[48]On the following pages the Report, handwritten by the doctor, reads as follows:
“Was arrested and detained by army and taken to a camp. Interrogated by army officers. Accused of helping another political group. Was beaten and raped by army officer while another officer recorded it on a mobile phone, Hands tied behind back, knife used to cut area around axilla. Cigarette burns to legs. Beaten. Raped. Very tearful and distressed while recounting events. Incidents occurred when arrested in 2010, came to the UK in 2011, On Fluoxetine and Temazepam – been under care of GP for last 4 years. Depression and anxiety symptoms since incidents in Sri Lanka. Significantly affected her mental state. Suffers with insomnia, anxiety, nightmares, flashbacks. PTSD symptoms.”
[49]Paragraph 55.10 of the Secretary of States’ Enforcement Instructions and Guidance sets out a number of categories of persons who are “normally considered suitable for detention in only very exceptional circumstances” including “Those where there is independent evidence of torture”.[50]The Defendant’s policy with respect to Rule 35 Reports (Detention Rule 35 Process) states in its Part 3:
“A report which details clear physical and 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 scars), and which records a credible account of torture, is likely to constitute independent evidence of torture.”
[51]The Claimant argues that the Rule 35 Report was independent evidence of torture and that therefore she should have been detained only in exceptional circumstances. However, the Defendant’s letter of 13 May states that her detention has been reviewed in the light of the rule 35 Report, and that her detention is to be continued. The letter records the substance of the report, recalls the history of the Claimant’s application for asylum and her failure on appeal, and states that “it is not considered that the [Rule 35] report in itself amounts to independent evidence of torture and you have provided not independent corroborative evidence to support the claims”.[52]In support of that contention the Claimant points out that the Defendant’s policy refers to “evidence”, and points out that this was evidence, whether or not the Defendant accepted it. Mr Jafferji cites Burnett J in EO & Others v SSHD [2013] EWHC 1236, at paragraph 68:
“There is a clear difference between something that amounts to independent evidence of a fact and proof of that fact … The underlying credibility of a detainee does not, in my judgment, go to the question whether something amounts to independent evidence of torture.”
[53]Mr Jafferji points out that the Report does not simply reiterate the Claimant’s account; it gives the doctor’s own view about the cause of the injuries. He referred me to EO & Others v SSHD where Burnett J at paragraph 59 discusses the purpose behind the Defendant’s policy, which is that those who have suffered torture are likely to be disproportionately affected by detention and that it is important to ensure that caseworkers are provided with material upon which to make their decisions. He emphasised that the relevance of independent evidence does not depend upon the credibility of the detainee herself (EO & Others at para 68, 99, 176). He observes that independent evidence might be a report which “falls far short of diagnostic certainty” (EO & Others para 125). He argues that the credibility of some of the detainees in EO & Others was far more in doubt than is the Claimants’ (referring particularly to the “stark” case of RAN at paragraph 170 of EO & Others).[54]The Rule 35 Report, Mr Jafferji argued, was written by an independent practitioner, without reference to the earlier report of Dr Josse; it was independent evidence of torture and therefore the Claimant’s detention should only have been continued in very exceptional circumstances. He also observed that the fact that the Claimant then secured a pre-asessment appointment with the Helen Bamber Foundation reinforces this argument; obtaining the appointment is not itself independent evidence of torture but it is clear that the Helen Bamber Foundation took the report seriously. It “should have set alarm bells ringing”.[55]I accept that independent evidence is not the same as proof; that the value of a medical report as independent evidence is not affected by the Claimant’s credibility; that it does not matter that the Rule 35 Report in this case was not a detailed report written for a court. Nor does it matter that the Rule 35 Report uses the words “may have been tortured” rather than stating that the Claimant’s injuries were caused by torture or could only have been caused by torture or “would normally only arise as a result of torture” (to use the words of the Defendant’s policy).[56]The difficulty that stands in the Claimant’s way is, as Mr Murray put it, the context in which the Report was made. It was undoubtedly independent, and was undoubtedly evidence, but it did not constitute independent evidence of torture because it added nothing to the picture. It referred to no injury that had not been described by Dr Josse and it did not add to Dr Josse’s description. It told the Defendant nothing that had not already been known and explored. The Defendant already knew that the Claimant had scars that were consistent with cigarette burns and with being cut. Alarm bells did not ring on this occasion because they had already been rung, in the asylum proceedings, and had been dismissed; the asylum claim based on this evidence, and indeed on more detailed evidence than this, had been explored very recently by the Tribunal, it had been rejected and appeal rights were exhausted.[57]Other cases in which a medical report has amounted to independent evidence of torture have been cases where the report revealed something new. The medical practitioner’s view of scars and other physical evidence amounted to something additional to the evidence given by the claimant himself or herself. In EO & Others and also, for example in AM v SSHD [2012] EWCA Civ 521. In my judgment the Defendant was perfectly entitled not to regard the Rule 35 Report as independent evidence of torture.[58]In EO & Others at para 16 Burnett J said:
“In considering the question whether something constitutes independent evidence of torture, and also the question whether there are very exceptional circumstances justifying detention, the court’s role is to ask whether the Secretary of State was entitled on the information before her to come to the conclusion or conclusions she did. The second aspect, whether there exist very exceptional circumstances, is one that might lead to legitimate differences of view between different people considering the same material. The first aspect, even though governed by public law principles, is in reality fairly hard-edged, Whether something is, or is not, independent evidence of torture, will less often be capable of two answers.”
[59]On my judgment the status of the Rule 35 Report, in this case and in this context, is indeed clear and hard-edged; it was not independent evidence of torture.[60]Another category of persons who will be suitable for detention only in very exceptional circumstances, according to paragraph 55.10 of the Enforcement Instructions and Guidance, is “Those suffering from serious mental illness which cannot be satisfactorily managed in detention.”[61]I have set out above the words of the Rule 35 Report; it sets out mental health problems, including symptoms of PTSD, and it states the medication that the Claimant was taking. The letter of 13 May 2014 reviewing the Claimant’s detention sets out those findings, making it clear that the Claimant’s mental health issues were known to the decision-maker.[62]The Defendant says that this is not evidence of a serious mental health problem, and that in any event there is no reason to suppose that it could not be managed in detention. That seems to me to be to be right, bearing in mind that it has not been suggested that the medication involved would have been difficult to manage, and that the detention envisaged was only going to be for a few days until 18 May. I find that there is no substance in this ground of challenge.

Was detention unlawful in the light of the pre-assessment appointment with the Helen Bamber Foundation?

[63]The Claimant further argues that once the Defendant knew that she had a pre-assessment appointment with the Helen Bamber Foundation, her continued detention was unlawful. Once that appointment was known about, the Defendant should also have known that, in accordance with her own policy, she could take no further action on the Claimant’s Further Submissions and in particular could not remove her. It is not in dispute that detention was for the purpose only of removal.[64]The Defendant has not challenged this reasoning, and it seems to me to follow inevitably from my finding about the decision taken on the Further Submissions. Rule 353A, quoted above, states that removal cannot take place while further Submissions are outstanding, and they should indeed have been left outstanding in this case.[65]What is not clear is the point at which the detention became unlawful. Detention as, as discussed above, reviewed on 13 May 2014 in the light of the rule 35 Report. It is not known whether the person who carried out that review was aware of the Further Submissions or of the pre-assessment appointment with the Helen Bamber Foundation. The Further Submissions were faxed to the Defendant that day but there is no particular reason to suppose that the person who reviewed the Claimant’s detention had the Further Submissions in front of him or her. And I do not think that it is realistic to argue that detention became unlawful the minute that the letter, alerting the Defendant to the pre-assessment appointment, landed on an official’s desk or even the minute it was read. The argument is that once the Secretary of State became aware of the pre-assessment appointment she must apply her policy and that, once she had taken a lawful decision about the Further Submissions it would then have been clear that removal was not going to take place any time soon and that therefore the Claimant must be released. It is not said that the Defendant delayed in making the Decision on the Further Submissions; the decision was made on 17 May and, had that been a lawful decision, it would have become clear at that point that removal could not take place for the foreseeable future.[66]Accordingly I take the view that the detention of the Claimant became unlawful on 17 May 2014.

Relief

[67]Accordingly I grant the following relief: i) an order quashing the Defendant’s decision on the Claimant’s Further Submissions in her letter of 17 May 2014; and ii) a declaration that the Claimant’s detention from 17 May 2014 to her release on 21 May 2014 was unlawful, and I award damages to be assessed if not agreed.

Cited in 1 later judgment