Jayeola, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 2335 (Admin)

Case No CO/4719/2015[2016] EWHC 2335 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/09/2016
Before
JONATHAN SWIFT QC(Sitting as a Deputy High Court Judge)
Between
THE QUEENClaimanton the application ofClaimantBOLAJI FEMI JAYEOLAClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Raza Halim (instructed by Messrs Duncan Lewis) for ClaimantNaina Patel (instructed by Government Legal Department) for DefendantHearing Hearing date: 23 June 2016
JudgmentMr Jonathan Swift QC :Introduction
[1]The Claimant is a Nigerian national. In these proceedings he contends that he was unlawfully detained between 25 September 2015 and 8 October 2015.[2]The Claimant arrived in the United Kingdom on 10 November 2011. In December 2013 he applied for an EEA residence card, but that application was refused. By February 2015 his leave to remain in the United Kingdom had expired. On 15 July 2015 the Claimant was arrested on suspicion that he had committed a criminal offence, although following the arrest that matter appears to have gone no further. Also on 15 July 2015 the Claimant was detained by immigration officers, as an over-stayer. He was detained at Harmondsworth Immigration Detention Centre and he remained in detention until his release on 8 October 2015.[3]On 20 July 2015 the Claimant made a claim for asylum. An initial interview took place on 23 July 2015. In the course of that interview the Claimant was asked to give a brief explanation of the reasons why he could not return to Nigeria. He stated that he did not have any family in Nigeria; that he would not have anywhere to live; and that he feared he would suffer from depression but have no one to help him. In response to a question “who do you fear?” in Nigeria, the Claimant is recorded as responding that he did not fear anyone. In the course of the interview the Claimant was also asked about his physical and mental health. His response was to the effect that he suffered from flu “often”. He also referred to the same point when he was asked if there was any reason why he should not be detained pending determination of his asylum claim. In response to this question the Claimant also stated that he had not been detained before, and that he would be “unhappy” if detained.[4]On 28 August 2015 the Claimant’s asylum interview took place. In the course of this interview the Claimant provided a description of the circumstances in which he had left Nigeria (in 2011). He said that a woman (Tosin Faleke) arranged a tourist visa for him to travel to the United Kingdom. He met the woman in a market; he had previously worked for her; she gave him money for clothes, and it would appear, met the cost of a plane ticket. She asked him to smuggle cocaine into the United Kingdom. However, the Claimant managed to retrieve his plane ticket and passport, and then hide from the woman until he caught a flight to the United Kingdom. He was thus able to travel without the cocaine. In the interview, the Claimant made reference to the fact that in Nigeria the woman had taken him to see a “herbalist”, and he had been required to swear an oath.[5]By letter dated 1 September 2015 the Claimant’s asylum application was refused. Amongst other matters, that letter recorded that in the course of the interview the Claimant had stated that he did not have any health problems. On 2 September 2015 the Claimant was issued with a notice of detention pending his removal from the United Kingdom.[6]It appears that on 7 September 2015 the Claimant spoke with a member of the Salvation Army, who completed a National Referral Mechanism (“NRM”) form on his behalf. The NRM form is a pro-forma document used for the purpose of raising claims for protection under the Council of Europe Convention on Action against Trafficking in Human Beings. In the statement of facts which is part of that form (at Section H), the Claimant stated as follows in respect of what had happened to him in 2011 prior to his departure from Nigeria. “At [Tosin Faleke’s] house she told me she will introduce me to a business but I will have to swear to secrecy. She took me to a native doctor where they performed many ceremonies and I was cut with a knife on my body. She then explained that she will get me a visa to the UK but I will have to swallow drugs that I will be bringing with me. I said no I can’t do that. She reminded me that I have taken an oath and that I refused I will die. I still said no, and they beat me up and told me I had no choice.” One further matter from the form – an anomaly – needs to be noted. Section G of the form is the place to record “indicators of sexual exploitation”. The first question posed in the section is whether any of the indicators listed in the section are present: if “yes” the relevant boxes in the list of indicators are to be ticked; if “no” the instruction is to go to Section H of the form. On this form the “no” box is ticked; however box 11 on the list of indicators is also ticked. Box 11 is for the indicator “signs of ritual abuse and witchcraft (juju)”. It is possible that the tick in box 11 of Section G of the form is consistent with the reference in the narrative in Section H of the form to the Claimant being subject to “many ceremonies”, and being cut with a knife on his body.[7]In any event, by letter dated 14 September 2015 the Claimant’s claim for protection under the Trafficking Convention was refused on the basis that there were no reasonable grounds to believe that the Claimant met the definition of a victim of trafficking under that Convention. On 17 September 2015 removal directions were set for the Claimant’s removal to Nigeria on 29 September 2015.[8]On 29 September 2015, solicitors acting for the Claimant sent a letter before claim. This letter contended that the Secretary of State’s detention of the Claimant was unlawful, by reference to matters referred to in a Rule 35 report which had been completed on 25 September 2015.

B. Immigration detention, detention policy, and Rule 35 of the Detention Centre Rules

[9]The Secretary of State’s immigration detention powers are at Part 1 of Schedule 2 to the Immigration Act 1971. The Secretary of State’s policy as regards the use of the power to detain is set out at Chapter 55 of the Home Office’s immigration “Enforcement Instructions and Guidance” document (“the EIG”).[10]Paragraphs 55.8A and 55.10 of Chapter 55 of the “Enforcement Instructions and Guidance” state as follows. “55.8A Rule 35 – Special Illnesses and conditions Rule 35 of the Detention Centre Rules 2001 sets out requirements for healthcare staff at removal centres in regards to any detained person:• whose health is likely to be injuriously affected by continued detention or any conditions of detention;• suspected of having suicidal intentions; and• for whom there are concerns that they may have been a victim of torture Healthcare staff are required to report such cases to the centre manager and these reports are then passed, via Home Office contact management teams in centres, to the office responsible for managing and/or reviewing the individual’s detention. The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case. Upon receipt of a Rule 35 report, caseworkers must review continued detention in light of the information in the report (see 55.8 – detention reviews) and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro forma. For more information see related link: Application of Detention Centre Rule 35 – 17-2012. If the detainee has an asylum or human rights (HR) claim (whether concluded or ongoing), consideration must be given to Detention Centre 35 process. ... 55.10 Persons considered unsuitable for detention Certain persons are normally considered suitable for detention only in very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention. The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:• Unaccompanied children and young persons under the age of 18 (see 55.9.3 above).• The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention.• Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this.• Those suffering from serious medical conditions which cannot be satisfactorily managed within detention.• Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.• Those where there is independent evidence that they have been tortured.• People with serious disabilities which cannot be satisfactorily managed within detention.• Persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons). 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.”[11]Thus one part of the Secretary of State’s policy on the use of her powers of detention under the 1971 Act is that if “... there is independent evidence that [the person] may have been tortured”, that person should be detained only in “very exceptional circumstances”. If such a person is detained, the very exceptional circumstances must be recorded on file.[12]Any detention in an immigration removal centre is subject to the Detention Centre Rules (2001/238). Rule 35 states as follows. “(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention. (2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State. (3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture. (4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay. (5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”[13]The provisions for medical reporting under rule 35 are therefore an important part of the machinery in support of the Secretary of State’s policy on immigration detention. Rule 35 requires healthcare staff working in detention centres to make a report if they are concerned that a person may have been a victim of torture.[14]Detention Services Order 17/2012 makes further provision for the day to day application of Rule 35 (paragraphs 20 – 25 concern Rule 35 reports by reason of concerns that a detainee may have been a victim of torture). The following matters are made clear. First, that it is for the medical practitioner to decide whether or not he has concerns that a person may have been a victim of torture. Second, that if the medical practitioner has such concerns, he must make a Rule 35 report. Third, that the report must state the medical evidence that supports the concerns, including reference to all physical and mental indicators. Paragraph 23 of the Order states as follows as to matters to be addressed where the Rule 35 report arises from concern of torture:
“23. Where possible, the medical practitioner should say why he/she considers that the person’s account is consistent with the medical evidence. This means that the medical practitioner should ask to see any scar and record what he/she sees, including on a body map and, where possible, assess whether it is in his/her view medically consistent with the attribution claimed by the detainee. The medical practitioner should consider whether the injury, health problem or other indicator may have other possible explanations which do not relate to torture. The medical practitioner must identify any medical evidence which may be contrary to the account given by the detained person.”

C. The facts

[15]The Rule 35 report on the Claimant was made by a Dr Jabbar on 25 September 2015. A Rule 35 report is made on a standard form document. Section 5 of the document is the section for “relevant clinical information”. Dr Jabbar wrote the following:
“[The Claimant] reports in August 2011, whilst in Nigeria he was being helped by a lady to get his visa. He was instructed to go with a group of men as part of this process and they took him to a herbalist where they said they wanted him to export drugs. He refused and as a result they attacked him with knives and sticks and he has scars on his body. See overleaf. I am not a medico legal expert, however his account is compatible with the history he gives and the examination findings today.”
The reference “see overleaf” is to two “body map” drawings on the next page of the report. On the front view body map Dr. Jabbar indicates “multiple small scars approx. 7 – 8mm” in three areas: running in two lines, one from each shoulder towards the chest; and in a group in the middle of the Claimant’s chest.[16]Two documents evidence the response to the Rule 35 report. The first is a letter to the Claimant dated 28 September 2015 from Mr. Choudhury, a member of the Detained Asylum Team, which states as follows:
“I am writing to you to acknowledge receipt of a report dated 25/9/2015 provided by the medical practitioner at Harmondsworth Removal Centre notifying us of a special illness or condition. Information contained within the report has been considered carefully and the decision to detain you has been reviewed. As a result, a decision has been taken to maintain your detention. The reasons for this are: Although the medical practitioner has concerns that you may have been tortured, the account you have provided is not the same as you have provided to the Home Office. You did not highlight that you had been attacked or indeed tortured by anyone whilst in Nigeria in relation to being forced to smuggle drugs. The doctor has made his account of compatibility on the basis of consideration of your claim in isolation, and in the absence of wider information surrounding your claim. The Rule 35 report provides no cogent reasons to lead the Home Office to depart form [sic] these previously promulgated findings of fact. Additionally, the doctor has not made findings as to how he arrived at the conclusion that you may have been a victim of torture in the past. It is submitted that the scars you have, could be from everyday injuries, and are not necessarily tangibly linked to the account that you have provided. Notwithstanding the above conclusion, the doctor has expressed no concerns regarding your ongoing detention. The suitability of your detention will be reviewed should new information come to light.”
The suitability of your detention will be reviewed should new information come to light.”[17]The second document is the “Detention Review” form signed by Mr. Choudhury (the Reviewing Officer) and Mr Camp (the Authorising Officer) on 28 September 2015. This is the internal document that records the decision to maintain the Claimant’s detention notwithstanding the Rule 35 report. At paragraph 14 of the form under the heading “Recommendation (whether to maintain detention or release, supported by reasons)” the following is stated. “There are no known medical condition that precludes him from being detained. Furthermore healthcare have not raised any concerns in regards to his detention. He has no family ties or dependants in the UK that would make it likely that he will remain in one place or indeed adhere to any conditions attached to temporary admission. He overstayed his visa and only claimed asylum after he was detained following a sexual assault allegation and threat of removal. Applicant has shown a disregard for UK immigration laws by failing to regularise his stay in the UK or indeed voluntarily leave the UK following dismissal of his EEA appeal by the FTT on 06/01/2015. His asylum claim has been refused – certified, which leaves him with little incentive to stay in touch with Home Office. In light of the above, taking into consideration of Chapter 55 of the EIG it is recommended that detention is maintained.” This recommendation was made in the context of proposed removal the next day (29 September 2015). I assume that the recommendation was made by Mr. Choudhury and then accepted by Mr. Camp.[18]As stated above, a letter before claim from solicitors acting on behalf of the Claimant was sent on 29 September 2015. Attached to that letter was a letter (also dated 29 September 2015) from the Helen Bamber Foundation. That letter referred to the Rule 35 report and described it as “prima facie evidence of torture or cruel, inhuman and degrading treatment”. The letter further stated that the writer was “... particularly concerned that [the Claimant] is reporting a history of ill-treatment and trafficking associated with ritualised violence (juju) and the Rule 35 report documents multiple scars on [the Claimant’s] head, shoulders, chest, back and legs which he reports were inflicted when he was attacked with knives and sticks when he was taken to a herbalist”.[19]The Home Office replied to the letter before claim by a letter dated 1 October 2015. By that time the Claimant had applied for and obtained an injunction preventing his removal from the United Kingdom. The 1 October 2015 letter addressed the complaint in the letter before action which had concerned whether or not there had been a response to the Rule 35 report. The Home Office letter ended by repeating the passage in the Detention Review form which I have set out above (at paragraph 17).[20]By letter dated 5 October 2015 the Claimant’s solicitors contended that he should be released from detention in accordance with the policy in EIG Chapter 55, paragraph 55.10 that where there is independent evidence that a person has been tortured, that person ought not ordinarily to be detained. Among other matters, the letter pointed out that the Claimant’s removal was not now imminent. The Home Office replied by letter dated 6 October 2015 declining to release the Claimant. The language used at the end of the 1 October 2015 letter was again used. The letter stated that the Claimant’s position would be reviewed “in line with any changes in circumstances”.[21]However, on 8 October 2015 the Claimant was released from detention. He was granted temporary admission to the United Kingdom subject to a reporting condition. In these proceedings the Secretary of State relies on a witness statement made by Michael Camp, who was the Authorising Officer for the 28 September 2015 decision to maintain the Claimant’s detention. His statement addresses the reasons for his decision on that day. It does not explain the basis for the decision to release the Claimant from detention on 8 October 2015. So far as I can tell there is no other evidence that addresses the reasons for that decision, and in particular why by 8 October 2015, the reasons that had been relied on to maintain detention on 28 September 2015 had ceased to be sufficient reasons. So far as I can tell there had been no relevant change of circumstances between 6 October and 8 October 2015. The change in circumstances which had occurred between 28 September 2015 and 6 October 2015 is that the removal directions for 29 September 2015 had been withdrawn.

D. The Claimant’s claim

[22]The Claimant contends that he was unlawfully detained from 25 September 2015 (the date of the Rule 35 report) until 8 October 2015. His case is that following the rule 35 report his continued detention was inconsistent with the Secretary of State’s policy, as stated at EIG Chapter 55, paragraph 55.10(a) because there was independent evidence that he had been tortured; and(b) because there were no “very exceptional circumstances” which warranted his detention. The Claimant relies on the judgment of the Court of Appeal in Secretary of State for the Home Department v BA and ST [2016] EWCA Civ 458, and on the judgment of Burnett J in EO v Secretary of State for the Home Department [2013] EWHC 1236.[23]The Claimant’s case is that the Rule 35 report provided the independent evidence of torture, and the Secretary of State’s decision to the contrary on 28 September 2015, was wrong.

E. Decision

[24]So far as concerns the legality of the Claimant’s detention, the issues in this case are(a) whether there was independent evidence that the Claimant had been tortured; and(b) if so, were there very exceptional circumstances such that the Claimant’s detention was consistent with the Secretary of State’s policy as stated at paragraph 55.10 of the EIG. It is common ground that if the Claimant’s detention was other than in accordance with the Secretary of State’s policy, then it was unlawful. The Claimant’s claim for unlawful detention spans the period 25 September 2015 to 8 October 2015. I must determine whether or not the Claimant was unlawfully detained during any part of that period.[25]Before I address these issues, there are a number of preliminary matters to set out.[26]The first of these is the meaning of paragraph 55.10 of the EIG, so far as it is material to the Claimant’s claim. In R(EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) Burnett J (at paragraph 59 of his judgment) identified the underlying rationale of the policy as being recognition that those who have suffered torture in the past are disproportionately affected by detention. This may be the motivation underlying this policy, but it is also clear to me that the policy as stated at paragraph 55.10 of the EIG has a strong precautionary characteristic, such that the application of the policy against detention does not depend on evidence that the detainee continues to suffer from any of the possible consequences of torture (or would do so if subject to immigration detention). Thus there is no requirement under the Secretary of State’s policy that the torture must have occurred within any prescribed period prior to the immigration detention, or that there should be evidence that the person concerned continues to suffer the consequences of torture such that he would be particularly affected by immigration detention. The Secretary of State’s policy only looks to whether there is independent evidence that at some time in the past the person has been tortured. The simple fact that at some time in the past the person has been a victim of torture is sufficient.[27]The next preliminary matter is what paragraph 55.10 of the EIG means by the requirement for “independent evidence”.[28]The Secretary of State has issued “process instructions” for officers dealing with Rule 35 reports. No doubt the intention of these instructions is to encourage officers to respond appropriately to Rule 35 reports, and to assist in ensuring that there is a consistency of approach. Two matters stated in these process instructions are worthy of mention in the circumstances of this claim. First, the instructions provide that if a Rule 35 report contains insufficient information to be able “to understand the medical concern”, then the officer considering the report should seek further information from the IRC medical practitioner. Second, the instructions stated as follows:
“A report which simply repeats an allegation of torture will not be independent evidence of torture ... A report which raises a concern of torture with little reasoning or support or which mentions nothing more than common injuries or scarring for which there are other obvious causes is unlikely to constitute independent evidence of torture ... A report which details clear physical or mental evidence of injuries which would normally only arise as a result of torture ... and which records a credible account of torture, is likely to constitute independent evidence of torture.”
[29]Although these process instructions are very useful in practice, they are no more than rules of thumb. What ultimately matters is the assessment of what happened in any particular case in which it is contended that following a Rule 35 report, a person has been unlawfully detained. This is clear from the judgment of the Court of Appeal in Secretary of State for the Home Department v BA [2016] EWCA Civ 458, see in particular the judgment of Elias LJ at paragraphs 25 – 51, where the significance of the process instructions was considered. Elias LJ put the matter in terms of whether the independent evidence had “corroborative potential”. He went on to state (at paragraph 39 of his judgment):
“... It must be capable of lending some support to the detainee’s case. In general it seems to me that where a doctor asserts that the scars or wounds are consistent with the account given by the patient, that is likely to constitute independent evidence of torture. It has the potential to corroborate the account. I take it that the requirement for independent evidence is a requirement for evidence that has a sufficient objective quality. Elias LJ emphasises that what is required is evidence of torture, not proof of torture. He observed that the presence of “commonly found scars” coupled with an assertion of torture would not ordinarily be sufficient (judgment at paragraph 41), but then went on to state (in the same paragraph): “... Unless the account of the detainee is inherently incredible so that there is no proper claim of torture capable of being corroborated, medical evidence consistent with the account will in my view generally satisfy the requirement.”
Further (at paragraph 49 of his judgment), Elias LJ accepted that in cases where the scarring was “unusual and is likely only to have ... resulted from torture as alleged, it will almost inevitably amount to independent evidence of torture”.[30]If there is independent evidence, detention would (in accordance with paragraph 55.10 of the EIG) “normally” be suitable “only in very exceptional circumstances”. In context, it does not seem to me that the use of the word “normally” adds anything. Thus if there were independent evidence that the Claimant had been tortured in Nigeria his immigration detention would be contrary to the Secretary of State’s policy unless there were very exceptional circumstances.[31]The final preliminary matter is the role of the court in a claim such as this one where the challenge concerns the application of the policy. This point too was addressed by Elias LJ in his judgment in BA (see at paragraphs 52 – 55). The question is whether by reference to ordinary common law Wednesbury principles it was open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the Claimant in the circumstances of the case. This is the question both in respect of whether or not there was independent evidence of torture, and, if there was, as to whether the case in hand falls within the very exceptional circumstances exception stated in the policy.[32]I now turn to the facts of the present case. The Rule 35 report in this case is brief. The material part of it is the information from the two body maps. These identify a pattern of scarring which is not readily explicable as the result of every day occurrences. The pattern of multiple small scars over each shoulder, and in the middle of the chest is plainly unusual. Dr Jabbar confirms that these scars are consistent with the Claimant’s account that he was attacked with knives and sticks. Moreover, the specific scarring pattern distinguishes what happened to the Claimant from what might occur in the course of an “everyday” attack by a group of men.[33]The response to the Rule 35 report is the 28 September 2015 letter to the Claimant, which is set out above at paragraph 16. This makes the following points. First, that the Claimant had not previously claimed that he had been either attacked or tortured in Nigeria. Second, that Dr. Jabbar had reached the conclusions he had “in the absence of wider information surrounding your claim”. Third that it was possible that the scars may have been from everyday injuries and that Dr Jabbar had not explained how he had arrived at the conclusion that the Claimant may have been the victim of torture.[34]Notwithstanding the latitude that is to be afforded to the Secretary of State through the application of the Wednesbury principles, I am not satisfied that this is a conclusion properly open to a decision-maker acting reasonably.[35]It is correct that the Claimant had not previously stated in terms that he had been subjected to torture in Nigeria. However the conclusion that he had been tortured is supported by some of the “wider information surrounding” his claim – i.e. the information on the NRM form referred to above at paragraph 6. Since the 28 September 2015 letter to the Claimant refers to the wider information surrounding his claim, I infer that the decision-maker did have regard to this information, which in any event did arise from statements the Claimant had made in the course of his detention.[36]Further, it seems to be entirely implausible that the multiple small scars recorded on the body maps could be the result of everyday injuries. I entirely accept that it would have been reasonable to conclude that one of the scars marked on the body map – the 4cm scar on the Claimant’s right forehead – was more likely than not the result of an injury that the Claimant stated (in the course of his asylum interview) he had suffered while working as a bus conductor. However, this cannot reasonably explain the multiple small scars on the Claimant’s shoulders and chest.[37]The final reason stated in the letter to the Claimant concerns Dr Jabbar’s reasons, and whether they explain how he arrived at the conclusion that there was independent evidence that the Claimant had been tortured. The decision contends that no such reasoning was present. However, the reasons stated by Dr. Jabbar do refer to the examination findings, which must include the information recorded on the body maps; and in any event given the nature of the scarring shown on the body maps it seems to me to be beyond serious argument that the present case is one of the sort referred to by Elias LJ at paragraph 49 of his judgment in BA – i.e. one in which the scarring is unusual and likely only to have resulted from the torture which it is said occurred. Thus this is a case in which the scarring itself is capable (and in my conclusion, plainly does) amount to independent evidence of torture.[38]For all these reasons I conclude that it was not reasonably open to the Secretary of State as at 28 September 2015 to conclude that there was not independent evidence that the Claimant had been tortured.[39]The next matter is whether it was reasonably open (by reference to ordinary Wednesbury principles) for the Secretary of State to conclude, again as at 28 September 2015, that there were very exceptional circumstances which warranted the Claimant’s detention, consistent with her policy on immigration detention.[40]I consider that the most relevant evidence on this matter are the matters recorded on the Detention Review form. Paragraph 14 of that review form is set out above at paragraph 17. In addition, paragraph 13 of the review form recorded that the Claimant’s removal from the United Kingdom was set for 29 September 2015. Again I must address this issue on the basis of the Wednesbury public law standards.[41]Set against these standards I do not consider that the matters referred to at paragraph 14 of the Detention Review form (whether alone or collectively) provide a rational basis for the conclusion that there were “very exceptional circumstances” which warranted the continuation of the immigration detention. The reference to the fact that immigration detention has given no cause for concern for the Claimant’s medical condition is correct. However, given that there was independent evidence that the Claimant had been tortured in Nigeria, and given the way in which the material part of paragraph 55.10 of the EIG is formulated, I do not consider that reliance on the Claimant’s (good) health can provide the very exceptional circumstances that are required for immigration detention to be in accordance with the Secretary of State’s policy. I have addressed the substance of the policy above at paragraph 26. To my mind at least, it is striking that the policy, as it applies to persons who may have suffered torture, does not seek to distinguish between persons who continue to suffer from the physical or mental health consequences of torture, and those who do not, or does not identify as material whether or not continuation of immigration might be likely adversely to affect the person concerned by reason of the fact that in the past he may have been tortured. But the Secretary of State’s policy, as formulated, does not make reference to these matters. As noted by Beatson LJ in R(Das) v Secretary of State for the Home Department [2014] 1 WLR 3538 (at paragraph 47 of his judgment) it is important that interpretation of the Secretary of State’s policy does not become reformulation of the policy. For the purposes of the present case I do not consider that the notion of “very exceptional circumstances” can be understood so as to read-in at this stage, matters which would go against the grain of the clear statement of policy that where there was independent evidence that a person had previously been tortured, that person would not ordinarily be detained.[42]Other matters referred to in paragraph 14 of the Detention Review form, which include the exhaustion of appeal rights, the fact that the Claimant remained in the United Kingdom when he ought to have left voluntarily, the absence of any ties to the community which might assist release subject to conditions such as deporting requirements, are not matters which identify the Claimant’s circumstances as “very exceptional”. The requirement in the policy for very exceptional circumstances sets the bar at a very high level. These matters do not approach that level; matters of this sort are wearyingly, all too common. Lastly, on paragraph 14 of the Detention Review form, I do not consider that for the purpose in hand, continuation of the Claimant’s detention can be rationally justified by the fact that he was arrested following an allegation of sexual assault. Following the arrest it appears that no action was taken at all in relation to this allegation: so far as concerns the evidence before me (and it would appear the evidence available to the decision-maker on 28 September 2015) the Claimant appears to have been released by the police with no further action being taken.[43]However, I do consider that the fact that, as at 28 September 2015 the Claimant was scheduled to be removed from the United Kingdom the very next day was a sufficient basis as at that time, to warrant the conclusion that there were very exceptional circumstances for immigration detention in accordance with the Secretary of State’s policy. The removal date is recorded at paragraph 13 of the Detention Review form, and it is one of the matters specifically relied on by Mr. Camp in the statement he made for the purposes of the proceedings before this court. It is correct to say that the imminent removal date is not referred to in terms at paragraph 14 of the Detention Review form; it should have been. However the date set for removal appears on the form at paragraph 13, and I cannot believe that it would not have been a matter at the forefront of Mr. Camp’s mind when he approved the continuation of the Claimant’s detention, and his witness statement does state that it was a matter on which he placed particular reliance. In these circumstances, I do not consider that the defect at paragraph 14 of the Detention Review form goes to the legality of this Claimant’s detention.[44]For this reason alone I consider that in respect of the period up to and including 28 September 2015 was in accordance with the Secretary of State’s policy, and was lawful.[45]I must now consider the position following 28 September 2015 until the Claimant’s release on 8 October 2015, a period of 9 days. I have summarised the events of these days at paragraphs 18 – 21 above. For present purposes I note the following matters.[46]By 29 September 2015, the letter from the Helen Bamber Foundation had been received, which stated in terms that the information recorded in the Rule 35 report was consistent with “ritualised violence (juju)”. Even if, contrary to the conclusion I have reached above, as at 28 September 2015 there was a rational basis to conclude that there was no independent evidence that the Claimant had been tortured, in light of this letter, that rational basis would have ceased to exist.[47]Next, and material to whether very exceptional circumstances continued to exist, by some point on 29 September 2015, the removal directions for the Claimant ceased to be operative. The Claimant was not in fact removed on that day, and Green J made an order preventing removal on condition that a Claim Form was issued within 24 hours of the Order being sealed. The Order was sealed on 1 October 2015, and the Claim Form was issued the next day.[48]I do not have a witness statement on behalf of the Secretary of State explaining the course of events, from her perspective, from 29 September 2015 until 8 October 2015 when the decision was taken to release the Claimant. Specifically, I have no evidence which explains what matters, as at 8 October 2015, resulted in the decision to grant the Claimant temporary admission to the United Kingdom. During the period until 8 October 2015 there were two letters from the Home Office to the Claimant’s solicitors. The first was on 1 October 2015 and responded to the letter before claim. So far as it addressed the reasons for the Claimant’s detention it repeated the matters at paragraph 14 of the Detention Review form.[49]The Claimant’s solicitors wrote again on 5 October 2015. By this time the Claim Form had been issued. In that letter the Claimant’s solicitors requested that he be granted temporary admission. They also pointed out that the Claimant’s removal from the United Kingdom was no longer imminent. The Home Office response was dated 6 October 2015. That response acknowledged that the Claimant now relied on the fact that his removal from the United Kingdom was not imminent, but did not address that point. The Home Office’s position maintained the conclusion stated in the Detention Review form – i.e. that there was no independent evidence that the Claimant had been tortured.[50]There had not by this time been any further formal review of the Claimant’s detention since the review that took place on 28 September 2015. I have seen a copy of the relevant GCID Case Record Sheet. So far as material, that records that an unsealed Claim Form had been received by 6 October 2015, but that prior to the decision to release the Claimant from detention, no sealed copy of the Claim Form had been received. In fact, the Home Office letter of 1 October 2015 records that the unsealed version of the Claim Form had been received on 28 September 2015, but that is immaterial for the purposes of this part of the narrative. So far as concerns the decision to release the Claimant, an entry for 7 October 2015 reads as follows. “I have spoken to SEO [name redacted] who has auth released. The applicant has submitted a [Helen Bamber] letter just before his rd’s were set. Spoke to OSCU who have advised that the court injunction had been done to allow progression of the applicant’s JR. west lit team cannot give a timescale on when JR would be completed as they ha`ve yet to receive a sealed JR. det rev cancelled as release has been auth.” What I derive from this is that the decision to release may well have rested on recognition that the Claimant’s removal was no longer likely to be imminent – either because it was necessary to wait for a short period to know whether or not the judicial review proceedings had been issued, or because if those proceedings had been issued the interim order made by Green J would likely mean that removal would not take place pending resolution of the proceedings. The Case Record Sheet goes on to note that the Claimant provided a release address on 8 October 2015, and was released the same day.[51]The parties have drawn my attention to authorities which make the obvious and sensible point that in a situation in which a change of circumstances calls into question whether or not immigration detention remains lawful, the Secretary of State is to be permitted a reasonable (albeit short) period of time to consider and decide whether to release, before continued detention is to be considered unlawful. See for example, per Elias LJ in BA at paragraphs 118 – 120.[52]How is this to be applied in the circumstances of the present case? I am not prepared to conclude that the Claimant’s detention became unlawful in the period between 29 September 2015 and 5 October 2015. It is true that the removal directions had been suspended by the operation of Green J’s order on 29 September 2015. The unsealed version of the Claim Form was available to the Home Office on 28 September 2015, but it is no more than reasonable to conclude that some period ought to be permitted for the Home Office to consider what ought to be done.[53]However, I assume that someone had turned their mind to whether or not the Claimant’s detention should continue so as to be able to respond to the Claimant’s solicitor’s letter of 5 October 2015. If someone did not, this ought to have happened in any event. By that time – say on 6 October 2015 – it would have been apparent that the Claimant’s imminent removal (an event which would have provided the very exceptional circumstances required by the Secretary of State’s policy) was not likely. A sealed version of the Claim Form may not have been available to the Home Office by this time – I am unable to tell one way or the other. But it does not seem to me that this is a matter that carries any particular significance. My conclusion is that in the circumstances of this case, the reasonable period for reflection to be afforded to the Secretary of State had run out by 6 October 2015. I see no reason why whether or not, following the events of 29 September 2015, the Claimant’s detention remained consistent with the policy set out at paragraph 55.10 of the EIG could not have been properly reconsidered by that time. If it had been reconsidered by then, my conclusion is that the Wednesbury reasonable conclusion would be that the Claimant should have been released from detention. There is certainly nothing recorded, or otherwise in evidence, as to the decision to release that was subsequently taken which suggests that anything occurred on or after 6 October 2015 which was material to whether or not to maintain the Claimant’s detention.[54]In the premises, my conclusion is that, consistent with the Secretary of State’s policy at paragraph 55.10 of the EIG, the Claimant should have been released from immigration detention on 6 October 2015, and that his detention for two further days was, for that reason, unlawful. I appreciate that this conclusion may appear to be an exercise in nit picking since the Claimant was in fact released on 8 October 2015. However, it is a conclusion I reach taking into account the period from 29 September 2015, as a whole.

Cited in 1 later judgment