Adam, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1352 (Admin)

Case No CO/445/2015[2016] EWHC 1352 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Administrative Court
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/06/2016
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
Between
R (on the application of Bassil Abdu Adam)ClaimantSecretary of State for the Home DepartmentDefendant
Mr Chirico (instructed by Sutovic and Hartigan) for ClaimantMr Hansen (instructed by Government Legal Department) for DefendantHearing Hearing date: 19.4.16
Judgment

Introduction

[1]On 17th September 2013 the Claimant first came to notice of the UK Authorities. He was a national of Eritrea. He applied for asylum. It emerged, following a Eurodac check, that he had been finger printed in Italy on 15th August. The Secretary of State proposed to return him to Italy under the provisions of the Dublin II Regulation. He claimed that to do so would be unlawful. She certified this claim as manifestly unfounded and gave notice of his removal to Italy on 22nd January 2015. Prior to, and with a view to removal, he was taken into detention with effect from 20th January 2015. He was released on 19th February, having brought proceedings by way of judicial review in the meantime. The certification of the claim was repeated by the Secretary of State on 4th March 2015, and that view was maintained in a recent letter of 28th September 2015.[2]By these proceedings, the Claimant challenges the entitlement of the Secretary of State to certify his claim as manifestly unfounded, and challenges the lawfulness of his detention for all or some of the period between 20th January and 19th February.

Certification and Removal

[3]Under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (“2004 Act”), the Claimant may be removed from the United Kingdom to Italy notwithstanding that he has made an asylum claim in respect of Eritrea, since Italy is a state to which paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act applies. He asserts that if he is removed to Italy he faces a real risk of treatment contrary to Articles 3 and 8 of the European Convention of Human Rights. The Defendant is required by paragraph 5 (4) to certify such a claim as clearly unfounded unless she is satisfied that the claim is not clearly unfounded.[4]The parties are agreed that the approach of the court must be to ask whether on the basis of the factual material before her the Secretary of State was entitled to certify the claim as clearly unfounded. To do so, it is agreed that I must base my decision on the facts known to her at the time she made her decision, in the light of the law as it is now known to be.

The Law

[5]I gratefully adopt the analysis of the law as it stood in mid 2014 as set out by Mrs Justice Laing in her the judgment in R (Tabrizagh) v Secretary of State for the Home Department [2014] EWHC 1914 (Admin), not least because the Court of Appeal (Underhill, Sharp LJJ) gave a fully reasoned decision dismissing a renewed application for permission to appeal against her decision on 17th September 2014: [2014] EWCA Civ 1398, in which Lord Justice Underhill specifically gave permission for the decision to be cited (paragraph 33). The Court of Appeal recognised she had correctly set out the law.[6]It is necessary for me only to identify the salient features. First, there is binding domestic authority at the highest level of the approach to be taken: EM (Eritrea) v Secretary of State for the Home Department [2014] 2 WLR 409, SC; [2014] UKSC 12. The case concerned the application of Article 3 of the ECHR:
“no one shall be subjected to torture or to inhuman or degrading treatment or punishment”
. The parties before the Supreme Court agreed that the test laid down in Soering v United Kingdom (1989) 11 EHRR 439 to determine the proper approach to this continued to hold the field: that the question was whether substantial grounds had been shown for believing that the person concerned “faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to Article 3 of the Convention]” (paragraph 91 of Soering).[7]At paragraph 58 in the judgment of Lord Kerr JSC (with which the other members of the court agreed) he said:
“I consider that the Court of Appeal’s conclusion that only systemic deficiencies in the listed country’s asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering… the removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to Article 3 of ECHR…”
[8]This led to the conclusion expressed at paragraph 63 and 64, as follows:- “Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of Article 3 breach, rather than a hurdle to be surmounted. 64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) at [42(i)] as a ‘significant evidential presumption’ that listed States will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of Article 3 rights falls to be addressed.”[9]It is not difficult to comprehend that where there are systemic deficiencies in the receiving state which are clearly and cogently established in evidence, there are likely to be substantial grounds to believe that any returnee to that state would face a real risk of being subjected to inhuman or degrading treatment contrary to Article 3, without the need additionally to examine circumstances personal and individual to the returnee - unless it could be said with confidence that they were such that the risk arising from systemic deficiency would not materialise in the case of that particular returnee: but such a case, where individual factors insulate a returnee from systemic deficiencies from which the returnee would otherwise suffer, is likely to be exceptional. This possibility is thus of theoretical rather than practical relevance. Though consideration must be given both to the situation applicable generally in the country of return and the applicant’s personal circumstances, including his or her previous experiences (see Hussein v Netherlands, Application Number 2725/10 at paragraphs 69 & 78, and Daytbegova v Austria Application Number 6198/12 at paragraphs 61, 67-69) the first may be sufficient on its own to establish a real risk, as may be the second, but an holistic view of the effect of both, taken together, must be adopted.[10]Since mid-2014, the decisions in the domestic courts of R (EM) Eritrea and R (Tabrizagh and others) have been considered by Lewis J in R (MS) and others v Secretary of State for the Home Department [2015] EWHC 1095 (Admin). He addressed in his judgment three claims for judicial review in each of which the Secretary of State had certified the claim as clearly unfounded within the 2004 Act. He applied the law as stated in EM recognising that there is a significant evidential presumption that a Member State of the EU will comply with its obligations under EU law and international law, against the backdrop of which any claim that there are substantial grounds for believing that return would involve a real risk of a breach of Article 3 fell to be addressed. Such a presumption would generally be rebutted if an applicant produced sufficient evidence to show that there were substantial operational problems in the receiving state, but further and separately it would be rebutted if it could be shown on the facts of a particular case that there were substantial grounds for believing that there was a real risk that the individual applicant would face treatment contrary to Article 3 if returned. He commented that “that involved a rigorous assessment of the situation in the receiving country, examining the foreseeable consequences of sending a Claimant to the receiving country and the Claimant’s circumstances, including his or her previous experience there; an assessment of the practical realities lies at the heart of that enquiry” (see his judgment paragraph 90). He thus first examined whether there were systemic failings, and secondly the individual situation of the Claimants. Of the three cases before him, two were brought by individuals recognised already to be entitled to benefit from international protection (“BIP”s). The third was an asylum seeker, as is the Claimant before me. In her case, she suffered from chronic post traumatic stress disorder and severe depression. Removing her to Italy was likely to make her more depressed, and could result in a significant risk of suicide. She was diagnosed as HIV positive, though was currently asymptomatic, having been raped repeatedly and subjected to sexual violence. In the cases of MS, and NA – the other two – each also suffered from significant mental health problems: depression and panic attacks in the case of MS, chronic post traumatic disorder and severe depression in the case of NA. Each was at risk of suicide, NA significantly so. Lewis J nonetheless concluded in each case that there was no legitimate basis upon which a first tier tribunal could conclude that there were substantial grounds to believe that there was a real risk that conditions in Italy would be such as to amount to a breach of Article 3 of the Convention.[11]The decision is of significance since considerable evidence was deployed before the court. There was evidence specific to the difficulty alleged in return to Italy, as well as evidence as to the likely treatment upon return of those with mental health issues such as the three Claimants. The case was heard over 3 days, a length which indicates the extent of evidence and depth of argument. It was in anticipation of the decisions being made in that case that initially the case currently before me was stayed to await the decision of Mr Justice Lewis. It had been expected that his decision would resolve the issues in the current case.[12]It has not done so, because there remains a possibility that an appellate court may take a different view of the overall conclusion, or the validity of some of the steps towards it which Lewis J took. Permission to appeal was sought in MS, and granted on a renewed application. The case now awaits determination by the Court of Appeal following a hearing which is currently listed for the 26th or 27th July this year, with an estimated length of hearing of 10 hours.[13]So significant is the decision in that case that at the outset of the hearing I had an application from Mr Chirico, who appeared for the Claimant, to stay the hearing before me pending the decision of the Court of Appeal. I declined to do so for reasons I gave at the time, and which form a separate judgment, though recognising that if I were to reach a decision in the current case similar to that reached by Mr Justice Lewis in MS and subsequent cases which have taken the same approach, I would extend time for appealing until 21 days after delivery of the judgment of the Court of Appeal in MS: I did so (in summary) because it seemed to me the interests of justice were best served by that course, bearing in mind the length of time a decision had been awaited in the current case; the fact that the case concerns more than a challenge to certification, since it also involves a challenge to the legality of detention which MS does not; the overriding objective including, in particular, safe-guarding the resources of the court; and the factors identified by Mr Justice Cranston in a decision only a week before the hearing before me in R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin) citing the decision in R (AB(Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 921, per Jackson LJ at paragraphs 30 and 32.[14]I should add, that if the appeal in MS fails it may be plain that there is little prospect of the current case before me ever succeeding so far as return to Italy is concerned: but it does not necessarily follow that if the appeal in MS succeeds that the current case should too: the grounds of appeal emphasised in the decision on permission (Underhill, Treacy LJJ) were that the Judge had taken too restrictive a view of an authority to which I shall return later in this judgment, that of Tarakhel v Switzerland (29217/12: 4th November 2012) a decision of the Grand Chamber of the European Court of Human Rights; and may not have been entitled entirely to dismiss the evidence given to him by one expert upon the grounds he did. Neither point necessarily disposes of the case before me.[15]Lewis J considered that the approach set out by Lord Kerr in EM (Eritrea) did not differ in substance from that adopted by the European Court of Human Rights in Tarakhel v Switzerland: in each, the legal test was that identified in Soering. He continued (at paragraph 921) “…In substance, the approach adopted by the Supreme Court involved recognising that Member States can be presumed to be complying with their obligations under EU law and international law. That can be rebutted in one of two ways. First, it may be rebutted in the case of all asylum seekers if there were sufficient evidence of substantial operational difficulties in the receiving state. Secondly, while the presumption would be the back cloth for considering individual cases, there may be situations where, on the individual facts of the case viewed against the overall situation (even if that situation did not rebut the presumption in all cases), there were still substantial grounds for believing that there would be a real risk on return. The European Court of Human Rights has taken a similar approach. In MSS v Greece (30696/09, Judgment of 21st January 2011: Grand Chamber), for example, it effectively considered that the circumstances were such that the assumption that an EU Member State was complying with its obligation was rebutted. In Tarakhel, the overall situation did not lead to the conclusion that all removals to Italy needed to be stopped. Nevertheless, the situation of the individual applicants needed to be assessed against the overall situation to determine if, on the facts, there was such a breach.”[16]Though the emphasis is slightly different, it can be seen that the principle extracted from the authorities (see paragraphs 5 – 9 above) is effectively the same as that as that adopted by Lewis J.[17]Tarakhel did not concern those who were particularly vulnerable because of their mental state. The applicants were parents of 6 minor children. They were Afghan nationals. The parents, and their 5 eldest children came to Italy in July 2011, where once their true identities had been established, they were transferred to a reception centre, the conditions in which they criticised on a number of grounds. The Court considered their complaints under the main broad categories: the slowness of the identification procedure, the capacity of the reception facilities and the living conditions within them. It identified the substance of the applicants’ arguments (paragraph 100) as being that if they were returned from Switzerland (to which they had subsequently travelled) “in the absence of individual guarantees concerning their care” they would suffer inhuman and degrading treatment linked to the existence of systemic deficiencies in the reception arrangements for asylum seekers. The Court considered that the presumption that a State participating in the Dublin system for returns would respect the fundamental rights laid down by the Convention was not irrebuttable – expressly taking the same line as did the Supreme Court in EM (Eritrea) (paragraph 104). Having examined the evidence as to the slowness of the identification procedure, the capacity of the reception facilities, and reception conditions, the Court summarised the position at paragraph 115:
“While the structure and overall situation of the reception arrangements made in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court’s view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded.”
It considered that the minimum level of severity which it was necessary to establish to show the applicability of Article 3 was relative: it “…depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim…” As a particularly unprivileged and vulnerable group, asylum seekers required special protection: and this was particularly important where the persons concerned were children even when accompanied by their parents. Reception conditions for children seeking asylum “Must be adapted to their age, to ensure that those conditions do not “create…for them a situation of stress and anxiety with particularly traumatic consequences”.” The Court therefore required individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and the family would be kept together: unless it did so there would be a violation of Article 3 of the Convention.[18]There was discussion before me of the effect of some prior decisions of the Strasbourg Court: those of Hussein v Netherlands; Daytbegova v Austria; Halimi v Austria and Italy;Abubeker v Austria and Italy; Mohammed Hassan and nine others v Netherlands and Italy; and Hagos v Netherlands and Italy, all of which were decided in 2013. None held complaints about conditions on return to Italy to be admissible: the evidence about them did not disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3. Mohammed Hussein said she had had to sleep at railway stations in Italy; had been raped; and had no medical care even when pregnant. Daytbegova and her mother were Russians, who travelled to Italy with Ms Daytbegova’s son, then 8 or 9 years old. The family suffered from depression, the second applicant in particular being “very ill, uncommunicative and suffering from headaches”. She was said to show suicidal tendencies, and it was recommended she stayed in an environment which she considered safe. She had suffered post-traumatic stress disorder with distinct symptoms and a traumatic neurosis. In Halimi the applicant asserted problems with his stomach and kidneys, and that he had no medical care in Italy. He was suffering from post-traumatic stress disorder, which developed into a depressive episode with a personality change due to extreme stress:
“The applicant was therefore a multiply traumatised adolescent and the expert classified him as gravely, psychologically impaired. She urgently recommended a safe living environment and ongoing psychotherapy to stabilise the applicant’s mental state. His removal would lead to re-traumatisation and could pose an acute suicidal risk.” (By contrast, the Austrian Government instructed an expert who found only a mild adjustment disorder bordering on a stress disorder but without a clinical character, giving no indication of suicidal tendency and no symptoms of serious PTSD). The Court noted (paragraph 34) that pursuant to a legislative decree in Italy reception arrangements were to be made on the basis of specific needs, in particular the needs of vulnerable persons. The list of those who were vulnerable included “persons who have been subjected to torture, rape or other forms of serious psychological, physical or sexual violence”
. A range of services was, under the decree, to be provided to them including socio-psychological reports, with special attention for those persons belonging to vulnerable categories and medical appointments with consultants. Dublin returnees would benefit from the same reception condition. The Court found (paragraph 72) no basis on which it could be assumed that the applicant would not be able to benefit from the available resources in Italy or if he encountered difficulties that the Italian authorities would not respond appropriately.[19]Mohammed Abu Beker was said to suffer from diabetes, asthma and a dust mite allergy and had psychological problems. In Austria, an expert had diagnosed him as having a severe psychological impairment whose clinical status display was comparable to florid paranoid schizophrenia. He was very irritable and “completely occupied by a delusion that he was being pursued by Satanists suffering from Aids.” At paragraphs 70 – 72 of its assessment the Court regarded the mental health of the applicant as manifestly and seriously impaired: but that accordingly he would be eligible for special consideration by the Italian authorities as a vulnerable person within the meaning of the legislative decree already referred to. The Court found no basis on which it could be assumed that the applicant would not be able to benefit from the available resources in Italy.[20]In the light of arguments that Tarakhel shows a shift of approach from previous cases (even if it did not in terms disapprove of the cases decided in 2013 referred to above at paragraph 18 and following) it is relevant to consider what view the Court itself appears to have taken of this decision in subsequent case law. Two cases assist. The first is AME v The Netherlands (Application No. 51428/10: Judgment 5 February 2015) in which the Third Section considered the case of a single minor. It described him as an “able young man with no dependents”; referred to Tarakhel as standing for the principle that the overall situation and structure of the reception arrangements in Italy could not act as a bar to all removals of asylum seekers to that country and that he had not established that his future prospects were of suffering sufficiently real and imminent hardship severe enough to fall in the scope of Article 3. Accordingly, the complaint was manifestly ill-founded.[21]In AS v Switzerland (Application No. 39350/13: Judgment 30th June 2015) the Second Section considered the case of a Syrian of Kurdish origin who had fled Syria having been persecuted, detained and tortured there. He had been diagnosed with a severe post-traumatic stress disorder requiring treatment, and with back problems. Two older sisters of his legally resided in Switzerland with their families, and provided support for him. Accordingly, he claimed that his expulsion to Italy where he had first sought asylum in Europe would aggravate his mental health problems, putting him at risk of irreparable harm. He was on a course of twice monthly psychotherapy sessions with a GP as well as taking prescription drugs. The absence of medical treatment was said to put him at a high risk of alcohol or drug abuse, and according to the report the involvement of his sisters was an “absolute necessity” for him to gain some emotional stability to overcome the multiple traumas he had suffered. The Court took the approach that the relevant principles were those set out in Tarakhel. The Court did not rule the complaint inadmissible, though it took the view that Article 3 could not be interpreted so as to oblige the High Contracting Parties to provide everyone within their jurisdiction with a home, nor did it entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living. Though refugees were in need of special protection, those who were seriously ill could not in principle claim any entitlement to remain in a Contracting State in order to continue to benefit from medical, social or other assistance and services provided by it. Indeed:
“The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to a breach of Article 3”, The Court noted that in Bensaid v The United Kingdom (No. 44599/98), ECHR 2001-I the Court had unanimously rejected the complaint of a breach of his rights by an Algerian national who was a schizophrenic removed from the United Kingdom. The fact that there was a risk of suicide did not require a State to refrain from enforcing removal providing that concrete measures were taken to prevent the danger from being realised. It concluded as follows: “35. The Court notes that according to the medical information provided the applicant shows severe symptoms of post-traumatic distress disorder for which he is being treated by a doctor and receives medication…the Court must therefore determine whether his return to Italy would put him in a situation of harm which would reach the high threshold set by Article 3 of the Convention. 36. In Tarakhel (paragraph 115) the Court found that while the structure and overall situation of the reception arrangements in Italy could not themselves act as a bar to all removals of asylum seekers to that country, the data and information available to the Court nevertheless raised serious doubts as to the capacities of the system. Accordingly, in the Court’s view, the possibility that a significant number of asylum seekers might be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, could not be dismissed as unfounded. The applicant is not, however, at the present time critically ill. The ability of any deterioration which he would suffer because of his removal from Switzerland and the extent to which he would be able to obtain access to medical treatment in Italy must involve a certain degree of speculation…At present there indication that the applicant, if returned to Italy, would not receive appropriate psychological treatment (see…Halimi v Austria and Italy) and would not have access to anti-depressants of the kind that he is currently receiving in Switzerland. In this respect, the Court notes that it is common knowledge that Sertraline or equivalent treatment is available in Italy. 37. In the Court’s view, the applicant’s case cannot be distinguished from those cited in paragraphs 32 and 33 above [they were Bensaid, and S.B. v Finland (Number 17200/11, a decision of 24 June 2014)]. It does not disclose very exceptional circumstances, such as in D v The United Kingdom…, where the applicant was in the final stages of a terminal illness in AIDS, and had no prospect of medical care or family support.”
For those reasons, the Court found that the implementation of the decision would not give rise to a risk that Article 3 would be violated.[22]In R (Mohamed Rogee) v Secretary of State for the Home Department [2015] EWHC 3645 (Admin), Mrs Justice Whipple followed the approach of Lewis J in MS.

The Relevant Facts

[23]Whether there is a real risk, in the light of these authorities, depends in the first place upon the facts of an individual case, albeit to be seen against the backdrop of the conditions to be anticipated more generally on return to Italy. Accordingly, I turn to the particular facts of the case before me.[24]At an interview on the day the Claimant first came to notice in the United Kingdom he explained through an interpreter that he had left Eritrea on 15th July, going on foot to Sudan where he arrived on 17th July 2013, then leaving on 25th July to travel to Libya (again on foot) where he arrived on 10th August 2013. He said he left there on 31st August to travel to Italy by ship, a voyage which took 4 days; was in Italy for 5 days before he left for France, and then left France by lorry to come to the UK. That account does not fit with the date that he was first fingerprinted in Italy. Since he was fingerprinted in Italy on 15th August 2013, the history he gave in interview is clearly inaccurate. He relates a history of being kept in a reception centre, from which he was free to leave, which he did, travelling to the north of Italy and living for a few days on the streets of Milan. He had travelled to Italy because he had been arrested and imprisoned in Eritrea. He complains of having been ill-treated whilst there.[25]In his witness statement he described being abused by Italians whilst he was living rough, and having garbage thrown at him on occasions. He wished to leave Italy to travel to somewhere he would be treated like a human being. It was not suggested at the time of his initial screening that he suffered from any particular illness, nor did he describe torture: his reason for leaving was because he fled from the army; his reason for coming to the United Kingdom was because “everybody says that Britain is the best place to claim asylum”. He went to live in Bristol. Whilst there, his GP became concerned about his mental health. He was seen subsequently by Doctor Naomi Hartree, a GP with experience in mental health work and in the clinical care and assessment of asylum seekers and immigration detainees, whose attendance was arranged by the Claimant’s current solicitors. She described physical problems – latent TB, which produced no current symptoms, some back pain, and significant mental health problems. Doctor Hartree did not see him face to face, but spoke to him by telephone. She described the position in paragraph 11.9 of a report of January 2015 as follows:
“A firm diagnosis is difficult to make from a telephone conversation, particularly an interpreted one; however the symptom picture described to me over the telephone accords with the picture shown in the GP records, which gives a fairly detailed picture of similar symptoms. The clinical picture of PTSD and depression is highly compatible with his history of ill-treatment, and the trauma-related symptoms he reports would not be clinically likely to occur merely as a result of other stresses in his life, such not involving ill-treatment such as migration, loss of employment, or separation from his family”
[26]She thought that he did not present as someone medically knowledgeable, which would make it more difficult to fake symptoms, and had spontaneously described symptoms which were clinically plausible. She thought that he should be offered further assessment to see if he had suffered effects of torture, and as far as she could assess was subjectively afraid of return to Italy.[27]On 3rd March 2015 Doctor Sylvia Chandler (a GP who had been trained in the asylum process and medico-legal report writing for victims of torture) did see him face to face. She considered that there were a number of scars (scalp, left arm and back) consistent with the explanation he gave for them as the consequence of torture, and scars (right elbow, left elbow, right arm and left leg) which were “highly consistent”. This reflects a classification advised by the Istanbul Protocol, of which there is a range from “not consistent” through “consistent with”, “highly consistent”, “typical of” to, finally, “diagnostic of”.[28]She thought his symptoms were suggestive of a moderate depressive order, and indicative of PTSD. She was concerned that detention would itself tend to exacerbate the symptoms, being a reminder of prison experience in Eritrea. There had been no suicidal ideation.[29]Neither the report of Doctor Hartree, which was dated 29th January 2015, nor that of Doctor Chandler, which was dated 3 March 2015, were available when the Secretary of State decided on 22nd January 2015 to remove the Claimant to Italy. He was detained in Campsfield Detention Centre. Removal directions were set for 30th January 2015, in the early morning. The day before removal was due to be effected, the current application for judicial review was made. It relied upon Tarakhel, and asserted that there remained a glaring discrepancy between the reception facilities required, and those in fact available, such that the Claimant’s Article 3 claim could not be said to be bound to fail. Nor had the Defendant obtained any such assurances from the Italian state as would satisfy the requirements as in Tarakhel, about conditions which the Claimant would be likely to face in Italy. It asserted a breach of Article 8 in addition, and as a second ground claimed that he had been falsely imprisoned because his lawful removal was not imminent and his continued detention therefore unjustified: but, further and separately, that his detention was unlawful having regard to the Defendant’s policy on the detention of those suffering from “severe mental health problems”. Removal directions were cancelled. An acknowledgment of service was filed on 18th February 2015. The next day, the Claimant was released.[30]Further evidence was submitted on behalf of the Claimant. On 28th September 2015 an official on behalf of the Secretary of State, who had maintained the certification of the claim as unfounded on 4th March 2015, considered the further material and maintained the certification. This is the operative decision before me.

The Decision

[31]The decision first considered whether Article 3 might have been breached, addressing the decision of the Court of Justice of the European Union in NS v SSHD (joined cases C-411/10 and C-493/10) and that of the Supreme Court in EM (Eritrea). It purported to apply the test in Soering. In paragraph 12, the letter set out the very considerable bundle of articles from a variety of sources, extending to nearly 400 pages, relied upon as objective evidence of conditions to be expected on return, and expressed the view that they did not rebut the significant evidential presumption to which the cases had made reference. It relied upon the cases referred to at paragraph 18 of this judgment, and on Tarakhel, as demonstrating that the situation in Italy could not be compared to that in Greece at the time of the MSS Judgment. Having dealt with the legal principles applicable, and the factual material submitted – as to which I am satisfied that the Defendant gave anxious scrutiny as demonstrated by the detailed references to the most influential of those materials at paragraph 17-23 of the letter – the writer turned to deal with the personal circumstances of the Claimant, and in particular the evidence of Doctor Chandler about them. In particular the author noted that in a report by AIDA asylum seekers suffering from mental health problems, or who had been the victims of torture, were entitled in Italy to the same right to access health treatment as provided for nationals by Italian legislation, that Italian authorities had confirmed that where a transferring country reports that a person being returned has a particular vulnerability appropriate medical measures were taken and the European Court of Human Rights had accepted that; and that special attention was paid to persons with psychological trauma who were entrusted to the medical stations of reception centres or at a local level to receive treatment and support in a professional and appropriate way. It considered and applied the decisions in Tabrizagh, and MS. It did not accept that there were substantial grounds for believing that the Claimant would face a real risk of being subjected to inhuman or degrading treatment, and that the presumption that he would be treated in compliance with the European Union Charter, the Geneva Convention and the Convention on Human Rights was not rebutted.[32]Since the claim was one to which paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 applied, which required the Secretary of State to certify the Claimant’s human rights claim as clearly unfounded unless she were satisfied that it were not clearly unfounded, and for the reasons spelt out in the letter she could not be so satisfied, the certification was maintained. As to Article 8, it considered that the extent of interference with any Article 8 rights would be limited, and the extent of it fully justified and proportionate, in particular quoting Hughes LJ in AJ Liberia [2006] EWCA Civ 1736, to the effect that it would ordinarily be very difficult for a suicide or mental health case which failed under Article 3 to succeed on mental health grounds under Article 8.

Submissions

[33]As a matter of law, the Claimant submitted that Tarakhel, should be approached upon a wide basis: it did not merely apply to families with children who were vulnerable because of the pressure on reception facilities to being separated and subject to conditions which would fall foul of Article 3, but to any section of those who were already vulnerable by reason of being asylum seekers of whom there was a further and particular reason for vulnerability. It applied at least to those such as the Claimant who suffered from mental illness. MS should not be followed. The cases in the European Court prior to the decision in Tarakhel, had now to be read as subject to it, and it was to over-read the decisions in AME v the Netherlands and AS v Switzerland to suggest they supported the Defendant’s case on certification. The decisions of the High Court in Suleyman v SSHD and Rogee v SSHD both followed MS, as to which there were real grounds to doubt its correctness.[34]On the facts, there had been tremendous pressure numerically upon reception facilities in Italy. Accommodation conditions across the board were inadequate, with a lack of standard procedures to deal with vulnerable people in general and survivors of torture in particular.[35]Applying the principles to be found in Soering, EM, Tarakhel, AME and AS to the facts, I have concluded that there is no evidence capable of rebutting the presumption that if returned to Italy the Claimant would suffer inhuman and degrading treatment by reason either of systemic deficiencies generally, or by reason of his mental state in particular. There is no particular feature of his previous stay in Italy, short as it was, which could lead to the conclusion that his personal experiences there suggested that his future treatment in Italy would cross the threshold for an Article 3 claim. Nor do I consider that his mental illness, which seems to have developed since he came to the UK, would have that effect. The claim under Article 8 balances the degree of interference with the Claimant’s private life against the importance of the UK honouring the obligations it has assumed internationally under the Dublin Convention. Though I acknowledge, as Mr Chirico pointed out, that in R (AM Somalia) v SSHD [2009] EWCA Civ 14 at paragraph 24 it was noted that the imperative of effective immigration control had little bearing upon the Article 8 question, it is not that which I bring significantly into the balance. I accept Mr Hansen’s repost that in Daytbegova the court had not considered there to be a breach of Article 8; that it will be rare that conditions which do not meet the threshold of Article 3 can be said to fall within Article 8, and have little hesitation in considering the Secretary of State was entitled to certify this claim too.

Detention

[36]The principles applicable to the legality of detention are: a) Detention must be justified; b) It is for the Defendant to show there is such justification (R(Lumba) v SSHD [2012] 1 AC 245 at 65). c) Detention is not justified merely because there is a statutory power to detain if the decision to detain is unreasonable in the public law Wednesbury sense. Where the power to detain arises pursuant to the Immigration Acts, detention must be limited in accordance with the principles set out by Woolf J in R v Governor of Durham Prisonex-parte Hardial Singh [1984] 1 WLR 704, which were encapsulated by Lord Dyson JSC in R(Lumba) v SSHD [2012] 1 AC 245 at paragraph 22: i) The Secretary of State can only use the power to detain for the purpose of deporting the detainee; ii) The period of detention must be no longer than that which is reasonable in the circumstances; iii) If before the end of that period becomes apparent that it will not be possible to effect deportation within it the power should not be exercised and iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.[37]The power to detain in an immigration case must be transparently identified through formulated policy statements (Lumba, paragraph 34) and these therefore restrict the Hardial Singh principles, such that the failure by the Secretary of State to have regard to a material policy concerning detention would render the detention unlawful and constituting a false imprisonment even where it is certain or inevitable that the person detained could and would have been detained if the power had been exercised lawfully: see Lumba at paragraphs 26, 34, 64 – 66, 88, 175, 208, 221 and 239, and R(Das) v Secretary of State for the Home Department [2014] EWCA Civ 45; 1 WLR 3538[38]In assessing what amounts to a reasonable period of time Lord Justice Dyson (as he then was) said at paragraph 48 of his judgment in R(I) v Secretary of State for the Home Department [2003] INLR 196 that relevant circumstances included “at least” the length of the period of detention, the nature of any obstacles which stood in the path of the Secretary of State preventing a deportation, the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount those obstacles, the conditions in which the detained person was being kept, the effect of detention on him and his family, the risk that if released from detention he would abscond, and the danger that if released he might commit criminal offences. The relevance of those matters was acknowledged by the Supreme Court in Lumba (see paragraph 105).[39]The policy of the Secretary of State so far as relevant to the current appeal is set out at paragraph 55.10 of the Enforcement, Instructions and Guidance (“EIG”) promulgated by her. Under the heading “Persons unsuitable for detention” is said:
“Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons….the following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons. • Unaccompanied children… • Those suffering from serious mental illness which cannot be satisfactorily managed within detention…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…”
It adds:
“If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file.” • Unaccompanied children… • Those suffering from serious mental illness which cannot be satisfactorily managed within detention…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…”

The relevant facts as to Detention

[40]On 20th January, the Claimant was served with a notice giving the reasons for his detention. They were that his removal from the United Kingdom was imminent and that he had not produced satisfactory evidence of his identity, nationality or lawful basis to be in the UK.[41]The Claimant’s challenge to the lawfulness of his removal and his detention in anticipation of that removal was filed on 29th January. The 21 day period for the filing of the acknowledgment of service was thus due to expire on 19th February. The detention was subject to periodic review while it lasted. The first such review, within 24 hours of first detention (conducted on 21st January 2015) noted that he had alleged that he had been tortured (referring to an earlier report under r.35(3), where this was first mentioned as an allegation) and the response which had been given to that allegation on 7th October 2013. He was said to have had “no medical conditions”, and that detention was to be maintained as his removal from the UK was considered to be a realistic prospect.[42]I accept that removal was, indeed, a realistic prospect at that time, since removal directions had been set and had not been subject to formal challenge.[43]The next review was on 3rd February 2015, after 14 days in detention. Again it referred to there being “no known medical conditions…” By now a sealed application for judicial review had been received, and the detention review acknowledged that the removal directions had been cancelled in consequence. It noted:
“We are currently awaiting this to be allocated in the JR team and if this will be expedited. Maintain detention whilst we await further information on the timescale of the JR and due to disregard shown for EU immigration laws, risk of absconding is significant.”
The same officer conducted a further review seven days later. Again this recorded the Claimant as having no known medical conditions and taking no medication. This time it referred to the possibility that the case might be expedited, and said “I propose to maintain detention as the subject’s removal remains a realistic prospect in the near future. If the JR is not expedited then the subject should be released” There was a further review on 17th February. It referred both to the torture allegation and to removal being likely within four weeks if judicial review were expedited, and recorded the Claimant as a “significant absconder risk”. The recommendation was to propose that detention be maintained “…to see if JR is expedited on 19/02/15. Subject has shown disregard for EU immigration laws and is a significant absconder risk. Diary action has been set for 20/02/15 to see if JR is expedited, if not expedited an ad hoc detention review can be done.”[44]The Claimant complains that there is no evidence, at any stage, that the policy expressed in paragraph 55.10 of the EIG was considered. Thus the Claimant was entitled at least to damages for the period between the 3rd and 19th February.[45]The underpinning for this asserted in argument was two-fold. The amended Grounds of Claim (23rd. December 2015) rely on breaches of the second and third Hardial Singh principles, and a failure to follow the published policy of the Defendant concerning the detention of those suffering from a serious mental illness which cannot be satisfactorily managed in detention. Not in the grounds, but advanced orally, was the effect of an expression of concern by a GP on 1st October 2013 in a Rule 35 report which said “I have concerns that this detainee may have been the victim of torture.” The reasons for this view were set out on the reverse of the facing page of the Rule 35 notice, under section 5, which set out the Claimant’s account that he had been imprisoned, sometimes without food or water, and forced to do hard labour digging and breaking rocks. While working he said he was regularly beaten with broken bushes especially about the lower back and feet, but had no scars. Plainly, this is not evidence of torture which is independent of the Claimant, since it derives entirely from his own account. The body map which accompanied the report showed no scars, the GP who conducted the assessment concluding that there were none of relevance – recording the Claimant himself as saying that he had no scars from the torture he claimed to have endured.[46]The evidence from Dr. Hartree (which was available during detention, on 29th. January 2014: that of Dr. Chandler came later) was equivocal. So far as torture is concerned, it suffered from the twin difficulty of receiving evidence by telephone rather than face to face, and through an interpreter, as she readily acknowledged. She did not in terms assess the Claimant as having probably suffered torture, but plainly thought he might well have done, since she suggested further assessment to determine this.[47]On this material, it could not be said that the Claimant fell clearly within the definition in the EIG of a case where there was independent evidence of torture.[48]Could it be said that the Claimant was “suffering from serious mental illness which cannot be satisfactorily managed within detention”? The evidence from Dr. Hartree was vulnerable to the same difficulties as was taking a clear view whether the Claimant had been tortured: she could only make a prospective rather than even a tentative diagnosis, though the tenor of her report was to credit the Claimant’s reported symptoms as credible. They would indicate PTSD and depression. Neither is an uncommon condition, if present.[49]There are two limbs to the category in paragraph 55 of the EIG, once it is first established that the prospective detainee is actually suffering from a relevant condition:(a) that the mental illness is “serious”, and(b) that it cannot be satisfactorily managed within detention. Objectively, here, it was unclear from the available material whether the Claimant was indeed suffering (later medical material was not available, and repeated reviews recorded the Claimant as having “no medical conditions”, though I think careful reading of Dr. Hartree’s report would strongly suggest it); if it had been thought to exist, the degree of severity of the PTSD and depression also was not clear – against it being “severe” were the facts that the Claimant had made no complaint of mental illness on entry into the UK, and the reviews did not pick up behaviour which suggested to the reviewing officers that there was any problem. This tends to a conclusion that any actual condition was not “severe”.[50]Next, there is no material before me which suggests that the condition, such as it was, was not satisfactorily managed within detention. Although this is a retrospective view, and the question is a prospective one to be asked before there is any detention in the first place, nothing within the documentation before me suggests that the Defendant ought to have foreseen the detention of the Claimant as falling potentially within the scope of paragraph 55 of the EIG when it began, so that it had to be justified by exceptional circumstances if it was to occur at all (nothing was flagged up to her by the first review, which showed no conditions of concern) and there was nothing that occurred whilst he was in detention to suggest that it should not continue for that reason. Some albeit limited support for this conclusion is given by the fact that here the Secretary of State did respond to Dr. Hartree’s report within 3 weeks of its receipt to say, the day after his temporary admission into the UK, to state:
“Your client’s…medical reports have also been noted and it is considered that your client’s physical and mental health problems were being sufficiently managed by the Healthcare team prior to his temporary admission to the UK”
[51]It follows that the case that the Claimant was within one of the categories in EIG paragraph 55 that should as a matter of policy have led to his exclusion from detention, absent exceptional circumstances, cannot be made out evidentially. This does not however dispose of the claim: for Mr Chirico’s argument is that at the very least those acting on behalf of the Secretary of State in applying the policy should have considered whether the Claimant fell within the paragraph, and he says there is no evidence that they did so. Insofar as the case depends upon the mental condition of the Claimant, there was a review reported within 24 hours of first detention, which threw up no particular concerns; insofar as the Claimant suffered from depression and PTSD there is no material before me showing that the Secretary of State should have appreciated that he could not satisfactorily be managed even if it had.[52]Mr Chirico submits in an annex to his general submissions that where a report has been prepared under Rule 35 in which a medical expert states that he “has concerns that this detainee may have been the victim of torture” this amounts to prima face independent evidence of torture. For the reasons I have given relating to this case, I do not think it can go that far here: however, the argument continues:
“If, for some good reason, the Secretary of State’s officers have any doubt that such a report amounts to independent evidence of torture, the only lawful response is to make a request to the doctor for further clarification; the Secretary of State cannot lawfully or rationally simply decide that she does not agree that the Rule 35 report is independent evidence of torture”
[53]In support of this proposition, his skeleton argument refers to the case of R (EO and others) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), a decision of Burnett J as he then was. However, on my reading of his judgment it does not support the conclusion that a Rule 35 report expressing concern that a detainee may have been the victim of torture is in itself independent evidence of torture. It may be, but all depends on the particular facts of the case – see the last sentence of paragraph 67; the consideration of a Rule 35 report in one of the conjoined cases before him, at paragraph 97; and the recognition that the first question a caseworker might ask on receiving a report made under Rule 35 is whether it did indeed constitute independent evidence of torture (see. e.g. paragraphs 123 and the opening three sentences of paragraph 163). Further, Burnett J concluded at paragraphs 60 and 61 that a caseworker was not obliged on receipt of an uninformative Rule 35 report “to seek detailed information evidencing the basis for the medical practitioner’s concern, still less to commission an external medico-legal report of the question whether there is independent evidence of torture.” Nothing precluded a caseworker doing so: but he did not have to.[54]EO v SSHD involved a close consideration of the question when detention would be unlawful where there had been a claim of torture. It deals with applicable principles. Two further cases put before me, reached on their specific facts, point in opposite directions, but do not in my view develop issues of principle any further. The first is that of HHJ McKenna sitting as a High Court Judge in R(BA) v SSHD [2014] EWHC 4223 (Admin), in which he expressly accepted that not every Rule 35 report amounted to independent evidence of torture (paragraph 22), but that where a doctor had ticked the box on the pro forma report that he had concerns that the detainee may have been the victim of torture, where an allegation was rape (which would usually leave no lasting physical trace such as a scar) and the doctor had said nothing to indicate doubt of that allegation, the report in itself amounted to such evidence and the Defendant should have treated it as such.[55]The second is a decision of Phillips J in N v SSHD [2014] EWHC 3304. A report on the detainee there spoke of her complaint that she had been physically tortured, by being beaten with a belt, and with hot cooking oil, and that she said she had suffered some scarring as a result. At paragraph 24 Phillips J. said he thought that the report did not provide independent evidence of any more than a small scar on each leg, not in itself indicative of a sinister cause, and that the Secretary of State’s decision that there was no independent evidence of torture was undoubtedly not irrational. Though it was only in BA that specific reference was made to the doctor having ticked the box to show there were concerns about torture, in both cases, the report was made under Rule 35: 35(3) provides that such a report is to be made when the medical practitioner is concerned that the detainee may have been the victim of torture. It therefore must be taken that in both cases a “concern” was expressed: the difference in result appears to be a consequence of their different facts, and in particular the allegation of rape in the first.[56]Accordingly, if the Defendant had considered the Rule 35 report in the present case, and concluded that it did not amount to independent evidence of torture, I consider that given the nature of the torture alleged and the terms of the Report the Defendant would have been entitled to conclude that there was no independent evidence of torture. There was no more than a concern which was on the face of it based upon an account which might be true, given by the detainee himself. No scarring was recorded: indeed, this was more than a negative finding for, according to the doctor, the Claimant expressly said there was none attributable to his ill-treatment. Mr Chirico however points out that there is no evidence that the Defendant considered the Rule 35 report at all.[57]Herein lies a distinction from other cases of which I am aware: the report under Rule 35 was made on 1st October 2013, in respect of detention at that time. The Defendant is said to have responded to that report on 7th October. She plainly considered the report at that time. The Claimant was detained pending removal, then set for 25th November 2013. Removal directions were cancelled when an application for judicial review was received, and temporary admission granted. No claim is made before me in respect of that period of detention. The period of detention with which the current case is concerned is not one which began until more than a year later. Though the Claimant’s detention was reviewed within 24 hours in accordance with the Defendant’s policy, the report then produced did not reassert the claim of torture.[58]Given these facts, I do not accept that the detention of the Claimant after 20th January until 29th January was unlawful, as being detention in breach of the Defendant’s published policy. The Defendant was not obliged to reconsider her rejection of the Rule 35 report from over a year earlier: there was no material since then and before 29th January that might have required her to do so.[59]The Defendant did consider the report of Dr. Hartree, but not until 20th February (the day after the release of the Claimant). The Claimant asserts this was too long a period, both in respect of the detention of someone with the mental condition revealed by Dr. Hartree and as someone in respect of whom there had earlier been concerns that he had been the victim of torture. If there had been a Rule 35 report contemporaneous with the detention of the Claimant on 20th. January, it would require a response within two working days if the Defendant was to abide by her policy (as set out in part 2 of her document “Detention Rule 35 Process”). The response came after three weeks.[60]In response to this, Mr. Hansen submitted that there was no breach of the third Hardial Singh principle. The Secretary of State was entitled to time to consider whether removal remained imminent, especially in the circumstances of this case, and it was not unreasonable to think that a decision on judicial review might be expedited. Detention was carefully reviewed. As to whether the report of Dr. Hartree was considered quickly enough, he relied on the decision in EO. The question arose in the individual case of EO himself. A Rule 35 report was dealt with at the start of a period of detention. It was not regarded as independent evidence of torture. Periodic reviews of the continuing detention took place after that. It was not until some five months after detention began that a medical report was received which did, clearly, amount to independent evidence of torture. This was on 4th. April. The next review was scheduled for 17th. April, and at that time the continued detention of EO was not considered. As to that, Burnett J. said this at paragraph 101:
“[Counsel for the Claimant] submits that the receipt of an independent medical report should be considered as swiftly as a Rule 35 report, i.e. within two days after its arrival. Therefore, EO does not accept that the relevant date when his detention became unlawful was, as the Secretary of State accepts, 17 April. On this latter point, I accept that on the facts of this case Dr Toon's report should have been considered as part of the review process which culminated on 17 April 2012. Medico-legal reports of this nature require a good deal more time to digest than a Rule 35 report. As in this case, they are frequently accompanied by submissions of a wider scope and other evidence. Case workers cannot be expected to drop everything to prioritise this work to the possible detriment of other detainees. Like most public servants, they are under considerable pressure. I note that in AMthe Court of Appeal considered that a fortnight to have considered the report from Miss Krajl, and conclude that it amounted to independent evidence of torture was appropriate. Such a time frame might well be reasonable when the monthly review is not imminent; but what is reasonable depends upon the circumstances.”
Since the Secretary of State was unable to show that EO would have been detained anyway after that date, EO succeeded in a claim for detention thereafter.

Conclusions in respect of Detention

[61]I do not accept that the Defendant was in breach of Hardial Singh principles here. Though the intended removal to Italy arranged for the end of January was cancelled, it was not unreasonable to expect that a decision on the application for review might be expedited, especially in the light of a history in which the availability of a remedy from the courts had been explored to a considerable extent. Mr. Hansen’s submission that 21 days was allowed by the CPR for the Defendant to file an Acknowledgment of Service and summary grounds of resistance, and until the expiry of that period those taking the operative decisions as to whether to maintain detention could anticipate that the court would decline permission, and order that renewal should not stand in the way of removal, has force. I am just persuaded that the detention of the Claimant throughout that period has been justified, subject only to the question whether the Defendant followed her own public policy as set out in the EIG at paragraph 55.[62]As to that, I have already indicated my decision that there was no breach of the policy in respect of the detention of those suffering from mental conditions. Nor was there any reason to revisit the response to the Rule 35 report from the previous October; nor did Dr. Hartree’s report itself clearly amount to independent evidence of torture for the reasons I have given. The Defendant did consider the questions arising from the report. The most troubling aspect of this case, however – even if it arose outside the scope of the pleaded grounds - has been whether she did so sufficiently quickly.[63]In both EO and AM the critical reports were reasonably clear in their conclusion that there was independent evidence of torture. The report of Dr. Hartree was not. It spoke more of the mental and physical condition of the Claimant than it did the question of torture. It could not add any information by reference to visible scarring, since the report was of a telephone conversation. The information about what had actually happened to the Claimant in Eritrea was limited: he claimed imprisonment, and beating, but the doctor noted that he was reticent about any detail of physical maltreatment. In my view, any official considering the report would need time to review it. The report itself was not, nor would it be reasonable to expect it to have been, before the case-worker for the detention review of 3rd. February, and I do not consider it reasonable to have expected a response before the review a week later. The earliest date at which a response might have been expected, giving reasonable time for the Defendant to have reviewed it (adopting the same reasons for this as appealed to Burnett J. in EO), would be the 17th.[64]I have not found it easy to answer the question whether the delay beyond the 17th – for two further days before release – renders the detention for that short time unlawful. It is clear to me that the response of 20th February gave no specific consideration to the issue whether the Claimant may have been the victim of torture. If on that date detention had been continuing, I would have thought it should have done so, for the question – if not the answer – was raised by the Report, with more to sustain it than was apparent from the necessarily much briefer account in the Rule 35 Report of the preceding October. In summary, despite the matter being raised by the report, even if more quietly than the concern expressed about the Claimant’s condition, I have no evidence it was considered. The question whether he was a victim of torture, at least, should have been. However, this is a conclusion as to the nature of the consideration which should have taken place, rather than the time within which it should have been.[65]The central thrust of the report related to the medical condition of the Claimant. That was plainly relevant to the legality of detention under Chapter 55 EIG. It needed to be addressed and it was, within a not unreasonable timescale, so far as condition is concerned. It would be highly artificial, and imposing too high an expectation upon the Defendant, to hold that the question whether there was independent evidence of torture should have been considered separately from that of mental condition. Nor would seeing the two aspects of the report as a composite whole result in any different a conclusion. This is so even though detention must be justified for as long as it continues.[66]In summary, I have come to the conclusion that detention was lawful when it began; it did not cease to be so after the 29th January; it would have become unlawful after that if the Secretary of State had failed to address the content of Dr. Hartree’s report within a reasonable time, to ensure that continued detention accorded with her published policy; but that it was not unreasonable for her to take until the 20th February to do so.[67]If I am wrong in holding that she had failed to consider whether there was independent evidence of torture sufficiently quickly, the appropriate time at which to do so would have been on 17th February, when the review last before release was held. I would have held that the detention for the period after that, until release on 19th February, albeit short, was unlawful, since the decision to maintain detention would not have been in accordance with law: though, since it is unlikely that the report would have been regarded as independent evidence of torture (see above) rather than posing questions about whether it had been suffered, and release would probably not have occurred earlier than it did, I would then have considered an award of nominal damages only to be appropriate.

Extension of Time to Appeal

[68]As I said when refusing the application for a stay, pending the decision of the Court of Appeal in MS, I shall extend time for seeking permission to appeal until 21 days after judgment is given in that case.