Ilori, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 3355 (Admin)

[2017] EWHC 3355 (Admin)Case No CO/2682/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2017
Before
MS LEIGH-ANN MULCAHY QC(sitting as a Deputy High Court Judge)
Between
R (on the application of ENOCH KEM ILORI)ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Ousman Noor (Direct Access Counsel) for ClaimantEric Metcalfe (instructed by the Government Legal Department) for DefendantHearing Hearing date: 29 November 2017
Judgment Approved

Ms Mulcahy QC :

[1]The issue for determination in this case is whether the Defendant acted lawfully in maintaining detention of the Claimant, a Nigerian national, in an Immigration Removal Centre following receipt of a report prepared under Rule 35 of the Detention Centre Rules 2001 (“the Rule 35 report”) after 20 May 2016. He continued to be detailed until 31 January 2017 when he was removed to Nigeria. It is common ground that the Claimant’s initial detention from 22 February 2016 until 19 May 2016 was lawful.[2]It was and is accepted by the Defendant that the Rule 35 report dated 18 May 2016 to which she first responded on 20 May 2016 constituted independent evidence of injury possibly attributable to torture.[3]The question is therefore whether “very exceptional circumstances” existed which justified maintaining the Claimant’s detention following receipt of that report as required by the Defendant’s policy set out in Chapter 55.10 of the Enforcement Instructions and Guidance (“EIG”).[4]My conclusion, based on the evidence in this case, is that the Defendant was not entitled to continue to detain the Claimant beyond 20 May 2016. This is because: i) The Defendant’s response dated 20 May 2016, notwithstanding her acceptance that the Rule 35 report constituted independent evidence of injury possibly attributable to torture, went on to apply a definition of torture (attribution to a random act of violence by non-state actors) that she now accepts was not valid within the meaning of her policy, in order to justify continued detention. As a result, she failed to consider whether “very exceptional circumstances” existed which justified the Claimant’s continued detention. ii) Whilst the Defendant’s further responses to the Rule 35 report dated 5 July 2016 and 4 August 2016 did consider and conclude that “very exceptional circumstances” existed for justifying continued detention, she relied on an alleged “high risk of absconding” in circumstances where the factors relied on did not support the alleged level of risk and where, in any event, it was irrational to conclude that the circumstances relied on to justify continued detention were very exceptional as opposed to routine.[5]In relation to the Defendant’s alternative case that, had she acted differently and taken account of all the circumstances she now contends were relevant, the Claimant’s detention would have been maintained in any event and that he has therefore suffered no loss, I am unable to conclude that the Defendant has discharged her burden of proof in this regard. Whilst I accept that there may be different judgments made as to whether circumstances are “very exceptional” and that this is a judgment for the Defendant as the decision-maker, in my view, none of the factors relied on, individually or cumulatively, are capable of constituting “very exceptional circumstances” within the Defendant’s policy for the reasons set out in detail below. Accordingly, I reject the Defendant’s contention that the Claimant is entitled to only nominal damages and find the Claimant is entitled to compensatory damages in relation to his continued detention after 20 May 2016 and until his removal.[6]The relevant factual immigration and detention history is as follows.

The Factual Background

[7]The Claimant, whose date of birth is 11 November 1976, entered the United Kingdom on 8 October 2013 accompanied by his wife pursuant to a visa issued in Lagos on 18 June 2013 which was valid for 2 years. In his visa application in May 2013, he had indicated that he intended to stay for two weeks on holiday.[8]On 22 April 2014, the Claimant’s son was born in the UK.[9]On 18 June 2015, the Claimant’s visa expired.[10]On 10 January 2016, the Claimant was arrested on suspicion of rape and bailed to return to Bromley Police Station on 22 February 2016. He was served with RED0001 and RED0003 notices as a section 10 Immigration and Asylum Act 1999 overstayer and was granted temporary admission. He was required to report to Becket House on 12 January 2016 as a condition of his temporary admission.[11]On 12 January 2016, the Claimant reported to Becket House as required.[12]On 22 February 2016, the Claimant further reported to Bromley Police Station as required by his bail conditions, when he was told that he was not going to be charged or proceeded against as a result of lack of evidence.[13]The Claimant was then detained under immigration powers in The Verne Immigration Removal Centre.[14]The Claimant reported that he had separated from his wife some 5 months previously but alleged that he had contact with his son through a third party.[15]A GCID Case Record Note made on 22 February 2016 stated in relation to the assessment of removability “Risk of absconding: Low, but nature of the criminal allegation makes this subject more suitable for detention.” As explained further below, the Claimant places particular reliance on this particular record.[16]On 23 February 2016, the Claimant informed Healthcare at the Immigration Removal Centre that he was a victim of torture.[17]Shortly after detention, an Emergency Travel Document (“ETD”) application was completed and a mitigating circumstances interview was conducted by an immigration officer.[18]On 1 March 2016, the Claimant refused to participate in a telephone interview with the Nigerian High Commission to obtain an ETD on the basis that he intended to submit an asylum claim.[19]On 2 March 2016, the Claimant claimed asylum.[20]On 13 March 2016, the Claimant requested Healthcare to have a Rule 35 report prepared in relation to him.[21]On 30 March 2016, an asylum screening interview was conducted and on 1 April 2016, the asylum interview was conducted.[22]On 1 April 2016, the Claimant made a request for temporary admission stating that medically he was not fit to be in detention and that, as a victim of torture, his continued detention had led to a state of paranoia. He also stated that his continued absence from his wife and son had denied him the opportunity to perform his paternal functions.[23]On 18 May 2016, a Rule 35 report was produced and provided to the Defendant. The doctor who signed it ticked the box stating “I have concerns that this detainee may have been the victim of torture”. The report outlines the Claimant’s account of having been tortured in Nigeria and then stated:
“Ultrasound has proved the missing testicle however neither my colleague nor me were confident to say this is from his torture or was a congenital malformation. He has a pending Urology appointment, but this may take months. I believe that he is telling us the truths and this brutal injury may lead the testicle absorbed/disappeared. [sic]”
[24]On 20 May 2016, the Defendant responded to the Rule 35 report, maintaining the decision to keep the Claimant in detention. The response stated:
“It is accepted that in the context of considering the appropriateness of your detention under detention policy, this constitutes independent evidence of an injury possibly attributed to torture.”
However, after dealing with the Claimant’s account of how he came to suffer the injuries as follows:
“You have clearly stated in your substantive asylum interview conducted on 1 April 2016 that you were kidnapped for ransom on 20 July 2013 and held for a period of 29 days before you were released. It is noted that you refer to no other incidents of violence directed towards you until you decided to escape, otherwise you thought you would be killed. You claim to have been able to go to the toilet alone and it was there you made your attempt to escape. You claim to have ran but became tired and hid in a shed for approximately 3 minutes but your kidnappers found you. It was here that you claim they beat you; breaking your leg and injuring your testicle. You claim to have passed out and when you awoke you were in a doctor’s house, where your leg had been fixed and you had been given medication.”
It was then stated:
“As a consequence of this, whilst it is accepted that the injuries identified in the Rule 35 report are independent evidence of an injury possibly attributable to torture, it is considered that the fractured leg you sustained and injury to your testicle are attributed to a random act of violence, not an act of torture by the state its authorities or any of its agents.”
[25]On 25 May 2016, the current claim for judicial review was lodged challenging the lawfulness of the Claimant’s detention. The claim was issued on 26 May 2016. It raised three grounds for judicial review: i) a challenge to detention based on an alleged breach of the principles in R (Hardial Singh) v Governor of Durham Prison [1984] 1 WLR 704; ii) a Chapter 55.10 challenge; and iii) a Rule 35 report delay challenge.[26]On 25 May 2016, the Claimant’s wife, Ms Yetunde Ilori, also submitted a witness statement describing the difficulties she faced in raising their son in the Claimant’s absence.[27]On 31 May 2016, Her Honour Judge Karen Walden-Smith sitting as a Judge of the High Court refused interim relief and gave directions for filing and service of an Acknowledgement of Service.[28]On 6 June 2016, the Claimant’s asylum claim was refused and certified with an out-of-country right of appeal.[29]On 15 June 2016, the Claimant again refused to undergo a telephone interview with the Nigerian High Commission which had been arranged on that date on the basis that he wished to have a face-to-face interview.[30]On 5 July 2016, the Defendant sent a supplementary response to the Rule 35 report. This stated as follows:
“We write in response to recent submissions made by your representatives raising concerns about our decision to maintain your detention on 20 May 2016, despite you raising a Rule 35 torture claim on 18 May 2016. It was accepted that the Report, received on 18 May 2016, from the GP at The Verne, constituted independent evidence of an injury possibly attributed to torture. We accept that within our first consideration it was considered that the injuries you had sustained were attributed to a random act of violence by non-state actors. After further consideration of your Rule 35 torture claim, further regard has been had to your immigration history, including the risk of you absconding, taking account of the fact that you had; remained in the United Kingdom following the expiry of your visa, had not submitted any application until after you had been arrested by the police and, following the refusal of your asylum claim, have refused to take part in telephone interviews with representatives at the Nigerian High Commission with a view to documenting you for removal. We believe that these factor [sic] raises very exceptional circumstances that would add weight to our decision to maintain your detention. You entered the United Kingdom on 8 October 2013 after having obtained a visit visa issued on 18 June 2013 in Lagos, which was valid until 18 June 2015. Upon your arrival in the United Kingdom you were granted leave to enter until 1 January 2014. It is noted that despite you complying with the process to obtain a visa to enter the United Kingdom you failed to leave when you were required to do so, after your leave to enter expired on 1 January 2014. You did not come to the attention of the authorities until you were arrested by police on suspicion of rape on 10 January 2016 where upon you were served as a Section 10 overstayer and you were granted Temporary Admission after police had bailed you in relation to criminal matters. You were required to report on 3 occasions whilst on police bail and it is noted that you reported as instructed. On 22 February 2016 you returned to the police station in relation to the criminal matter where you were informed the police would not be taking the matter further as there was insufficient evidence. At which time you were detained under immigration powers for purposes of effecting your removal from the United Kingdom. Although you have not provided your Nigerian passport that you used to enter the United Kingdom full details from that passport are featured on your online visa application. Therefore, you were referred immediately for a telephone interview with the Nigerian High Commission so that you could be documented for removal, and this interview was scheduled for 2 March 2016. It is noted that you refused to participate in the interview and stated that you would be claiming asylum; on 3 March 2016 you claimed asylum. You were certified with a certified refusal of your asylum application on 7 June 2016, certified under Section 94(1) and you were referred for another telephone interview with the Nigerian High Commission on the same date. It is noted that you refused to engage once more with the process of obtaining an Emergency Travel Document, refusing to speak to the High Commission. We believe that this is indicative of your overall attitude to immigration control and that this non-compliance is an attempt to frustrate the removal process. We therefore believe that if released you will continue in this vein and will be unlikely to comply with any reporting conditions. You have been referred to the detained interview scheme scheduled for 1 July 2016. The only barrier to your removal at this time is the obtaining of an Emergency Travel Document, and as such it is considered that you are now fully well aware of our intention to remove you from the United Kingdom to Nigeria. Furthermore your claim for asylum has been refused and as such there is little incentive for you to remain in touch with authorities and to comply with any conditions of your release. Therefore, in light of your actions as outlined above the decision to maintain your detention; despite your Rules 35 claim, is justified in line with published policy stated in Chapter 55.10 of the Enforcement Instruction and Guidance. This is under exceptional circumstances due to your non-compliance as a whole.”
[31]On 11 July 2016, the Claimant had a face-to-face interview with the Nigerian High Commission and an ETD was agreed in principle on 12 July 2016.[32]On 12 July 2016, the Defendant filed an Acknowledgement of Service and Summary Grounds of Defence in relation to the judicial review claim issued on 26 May 2016.[33]On 15 July 2016, the Claimant lodged a further judicial review challenging the certification of his asylum and human rights application.[34]On 4 August 2016, the Defendant responded a third time in relation to the Rule 35 report. Paragraph 21 of the letter stated that:
“The decision to maintain your detention was upheld as it was considered that there were very exceptional circumstances involved in your case in light of your immigration history, including the risk of you absconding, taking account of the fact that you had remained in the United Kingdom beyond the expiration of your visa, that you had not submitted any further applications until after you were arrested by police and that prior to and following the refusal of your asylum claim you refused to participate in telephone interviews with the Nigerian High Commission with a view to documenting you for your removal.”
[35]The letter went on to note that neither the General Practitioner nor the Consultant Urologist were able to confidently say that the Claimant’s missing testicle was attributed to torture or whether in fact it was a congenital malformation and noted that in the De-Best Hospital letter dated 11 March 2016 submitted by the Claimant in support of his asylum claim, it confirmed that the Claimant was seen in the out-patients clinic in August 2013 with trauma due to some assault, but made no reference to injury to the testicle.[36]In relation to the first (current) judicial review claim challenging unlawful detention, permission was refused on paper by Mr Justice Green on 4 August 2016 who certified the claim as totally without merit.[37]On 15 August 2016, the second judicial review was also refused as without merit.[38]On 30 August 2016, the Claimant sent further submissions for a fresh claim under paragraph 353 Immigration Rules.[39]On 23 January 2017, the Defendant responded refusing to treat the further submissions as a fresh claim.[40]On 31 January 2017, the Claimant was removed to Nigeria. I understand that he has since moved to Benin and has given instructions to his legal representative remotely I relation to the claim.[41]On 13 April 2017, following an appeal from Mr Justice Green’s decision, Lord Justice Bean, albeit “with some hesitation”, granted permission to proceed with the second ground (raising the Chapter 55.10 challenge) only and refused permission to proceed with the other grounds raised by the judicial review claim, agreeing with Mr Justice Green that they were totally without merit. He remitted the claim back to the Administrative Court for a full judicial review hearing to be listed. Detailed grounds of defence were filed on 19 July 2017. It is that hearing which has come before me.[42]I will now turn to the specific issue raised by the claim (set out at paragraph 1 above) and will first set out the relevant legal and policy framework, then summarise each party’s position, consider the test the Court must apply, and finally set out my analysis and conclusions.

The legal and policy framework

[43]It is necessary for decisions on detention to comply with published policy in order for the detention to be lawful: see R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.[44]Home Office guidance on immigration detention is contained in chapter 55 of the EIG. That chapter commences with the following:
“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate: (a) to effect removal; (b) initially to establish a person's identity or basis of claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy.”
[45]Paragraph 55.3 provides:
“55.3 Decision to detain (excluding criminal casework cases) 1. There is a presumption in favour of temporary admission or temporary release - there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 2. All reasonable alternatives to detention must be considered before detention is authorised.”
[46]Paragraph 55.3.2.5 addresses the “Risk of Absconding” stating:
“If removal is not imminent, the caseworker should consider the risk of absconding. Where the person has been convicted of a more serious offence, then this may indicate a high risk of absconding. An assessment of the risk of absconding will also include consideration of previous failures to comply with temporary release or bail. Individuals with a long history of failing to comply with immigration control or who have made a determined attempt to breach the UK’s immigration laws would normally be assessed as being unlikely to comply with the terms of release on restrictions. Examples of this would include multiple attempts to abscond or the breach of previous conditions, and attempts to frustrate removal (not including the exercise of appeal rights). Also relevant is where the person’s behaviour in prison or immigration removal centre (IRC) (if known) has given cause for concern. The person’s family ties in the UK and their expectations about the outcome of the case should also be considered and attention paid to the requirement to have regard to the need to safeguard and promote the welfare of any children involved. The greater the risk of absconding, the more likely it is that detention or continued detention will be appropriate. Where the individual concerned has complied with attempts to re-document them but difficulties remain due to the country concerned, this should not be viewed as non-compliance by the individual.”
(emphasis in bold added)[47]Paragraph 55.3.2.8 addresses “Risk of Harm” stating in relevant part:
“Where [the National Offender Management Service (NOMS)] are unable to produce a risk assessment and the offender manager advises that this is the case, case owners will need to make a judgment on the risk of harm based on the information available to them. Factors relevant to this will be the nature of the original offence, any other offences committed, record of behaviour in prison and or IRC and general record of compliance. A PNC check should always be made. Where there is a conviction for a more serious offence, the nature of the offence is such that the person presents a high risk on the table below.Such high risk offences should be given particularly substantial weight when assessing reasonableness to detain. Those with a long record of persistent offending are likely to be rated in the high or medium risk. Those with a low level, one off conviction and, with a good record of behaviour otherwise are likely to be low risk.”
(emphasis in bold added)[48]Paragraph 55.10 of the EIG stated, at the material time, as follows:
“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 CCD[1] 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 (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl’s Wood). Those suffering from serious medical conditions which cannot be satisfactorily managed within detention. Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in 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). 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.”
(emphasis in bold added) 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 CCD[1] 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 (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl’s Wood). Those suffering from serious medical conditions which cannot be satisfactorily managed within detention. Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in 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). 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.” (emphasis in bold added)[49]Any detention in an immigration removal centre is subject to the Detention Centre Rules 2001 (SI 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.”
[50]The Detention Rule 35 Process Guidance (Detention Services Order 08/2013) also sets out policy regarding the process to be followed by Home Office staff in response to a Rule 35 report. This includes guidance as to what constitutes ‘independent evidence of torture’ for the purposes of Chapter 55.10 EIG:
“Because each case will be different, it is not possible to provide definitive guidance on when a Rule 35 report will constitute independent evidence of torture. However, it must have some corroborative potential (it must “tend to show”) that a detainee has been tortured, but it need not definitively prove the alleged torture. The following pointers may assist: • 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 (e.g., numerous scars with the appearance of cigarette burns to legs; marks with the appearance of whipping scars), and which records a credible account of torture, is likely to constitute independent evidence of torture.”
[51]Section 3(ii) of the Process Guidance continues:
“Very exceptional circumstances could arise where, for example, release would create an unacceptably high risk of absconding, of reoffending or of harm to the public. There will not be very exceptional circumstances in the case of a routine detention absent other reasons, e.g., a removal without a high absconding risk or harm issue — see Ch. 55 of the EIG. The full circumstances applicable to the detainee and their reasons for detention must be considered, in order to establish whether there are very exceptional circumstances that mean detention is appropriate notwithstanding the Rule 35 report. In some cases where the Rule 35 report is accepted as independent evidence of torture, there may nevertheless be further information which renders the overall account of torture wholly incredible. Such information may form the basis of an assessment that there are very exceptional circumstances making detention appropriate. For instance, it may be right to detain in very exceptional circumstances if, despite the existing independent evidence of torture, there is a court determination which was made with sight of a full medico-legal report and which dismisses the account of torture, or there is evidence such as visa match evidence which very clearly shows that at the time the detainee claims to have been tortured in one location, he was in fact enrolling biometrics and applying for a visa in another location. Because genuine confusion may be an issue, caution must be exercised in such a consideration.”
[52]In EO & Ors v Secretary of State for the Home Department[2013] EWHC 1236 (the “EO” case) Mr Justice Burnett (as he then was) concluded that the definition of torture in the Home Office policy was as follows (at [82]): “‘torture’ in the detention policy means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind”.[53]He also considered the Home Office policy in relation to Rule 35 reports and summarised this as follows (at [17]):
“…In the context of these cases the substantive question is whether there is independent evidence that a person has been tortured. If so, the Secretary of State may normally maintain detention only if there are very exceptional circumstances.”
[54]At paragraph 69, he stated:
“The policy gives some help with what may inform whether there are very exceptional circumstances. It refers to the need to weigh risks to the public of releasing convicted offenders with particular care. A very high, rather than routine, risk that the detainee will abscond might well also provide a proper basis for maintaining detention. The rubric is such that a host of factors may come into play. It was not suggested by the claimants in these cases that credibility is an irrelevant consideration in determining this question. In my judgment, the credibility of a detainee may be a factor which informs whether there are very exceptional circumstances for maintaining detention.Doubts about the credibility of the detainee would not be sufficient – that is commonplace. Acting on doubts would be tantamount to requiring the detainee to prove that the allegation of torture was true. The policy does not require that.However, there may be cases in which the information available to the decision maker leads him to the firm conclusion that the torture claim is untrue, that is to say incredible or very unlikely to be true. It would be a perverse application of the policy to require the Secretary of State to release from custody someone in respect of whom there exists independent evidence of torture but also where it is clear that the claim is untrue. The policy does not require that. However, it should not be overlooked that the fact that a person is in detention in the first place will often have followed, or be associated with, a conclusion that an underlying claim has little or no substance. The fact that a person is in detention will usually suggest that an assessment has been made that there is a risk of absconding, or a risk of offending or some threat to the public. The policy assumes that these facts, presenting in a way which would ordinarily justify detention, are not without more sufficient to do so when there is independent evidence of torture.”
(emphasis in bold added)[55]If false imprisonment is established and the Defendant wishes to say that the Claimant would have been detained anyway, it is for the Defendant to establish that proposition, on the balance of probability (EO at paragraphs [70, 73]).[56]In AM (Angola) v Secretary of State for the Home Department [2012] EWHC Civ 521, Lord Justice Rix held at [30] that a requirement of ‘evidence’ of torture is not the same as a requirement of proof, conclusive or otherwise.[57]In R (BA (Eritrea)) v Secretary of State for the Home Department [2016] EWCA Civ 458; [2016] 4 WLR 101 (the “BA” case) the Court considered an earlier version of the Detention Rule 35 Process Guidance which was materially the same as the version applicable to this case. Lord Justice Elias (with whom the other members of the Court agreed) noted that “no definitive guidance can be provided because the issue is fact sensitive” (at [20]) and stated that the process Guidance did “not purport in any way to alter the scope of Chapter 55” before concluding in relation to what would constitute independent evidence of torture as follows: i) In relation to the first example given by the Process Guidance (the first bullet point set out at paragraph 50 above) that “the mere recitation of an account of torture coupled with the fact that the doctor does not find it inherently incredible would not in my view be enough…The position is no different even if the doctor also describes injuries or scarring which are visible on the body of the patient but does not relate them in any way to the account” ([32-33]). ii) In relation to the second example given by the Process Guidance (the second bullet point at paragraph 50 above) that “the existence of commonly found scars coupled with a mere assertion of torture would not in general be enough”. However, “a reasoned explanation of why the scarring is consistent with the account does lend expert support to the account (and I do not read the example as suggesting otherwise)”. Therefore “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” (at [41]). iii) In relation to the third example (the third bullet point at paragraph 50 above), “even with unusual scarring, the account of torture must be credible in the sense of being capable of belief. If the account is inherently incredible, that will be likely fatally to undermine the conclusion that the scarring was caused by torture” (at [50]).[58]In Anam v Secretary of State for the Home Department[2010] EWCA Civ 1140, at paragraph [81], it was held by the Court of Appeal that what was very exceptional should be judged taking into account the whole spectrum of those who are liable to be removed in the immigration context.[59]Finally, in R (on the application of Das) v Secretary of State for the Home Department[2014] EWCA Civ 45, [2014] 1 WLR 3538 atparagraph 68,

Lord Justice Beatson (with whom the other members of the Court of Appeal agreed) stated as follows:

“Where the policy does apply, there is, as shown by Anam’s case (see [52]-[54] above) a high hurdle to overcome to justify detention. It is self-evident that the mere liability to be removed and refusal to leave voluntarily cannot constitute the ‘very exceptional circumstances’ required or the policy would be denuded of virtually all its operation: R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 at [34] per Rix LJ. Similarly, AA (Nigeria)’s case suggests (see [2010] EWHC 2265 (Admin) at [40]) that the detention of a person cannot be justified by reference to that person’s own well-being (in that case to prevent suicide attempts) either in general or as an exceptional circumstance. But the balancing process described in Anam’s case may, particularly where the case concerns a foreign national prisoner who poses a serious risk to the public, for example a person who poses a high risk of killing someone else, or where there are cogent grounds for believing that removal will take place in a very short time, mean that detention will be justified. In the case of a person who poses a high risk of killing someone else, this will be because the circumstances can be regarded as ‘very exceptional’ so that detention pursuant to the policy of ensuring the firm and fair application of immigration controls is justified. Where there are cogent grounds for believing that removal will take place in a very short time, detention will be justified because a short period of detention of that character is not likely to raise questions of ‘satisfactory management’, as Miss Rose accepted.”
(emphasis added)

The Claimant’s case

[60]The Claimant’s case, in essence, is as follows. In the Statement of Facts and Grounds dated 25 May 2016, on the basis of which permission was given, the Claimant pointed to the contradictory nature of the response dated 20 May 2015 and the failure to consider whether there were very exceptional circumstances. In his Reply dated 20 July 2016, the Claimant stated that the Defendant’s post-rationalised assertion in her supplementary response dated 5 July 2016 that the Claimant posed a “high risk of absconding” was not apparent on the facts of the case where the Claimant had demonstrated compliance with reporting conditions when granted temporary admission and had been entitled to refuse to obtain an ETD at a time when he intended to make an asylum claim and could not therefore be removed.[61]The Claimant, in the skeleton argument for the hearing submitted on his behalf by Mr Noor, has raised various additional issues which were not raised in the Statement of Facts and Grounds in relation to the Chapter 55.10 challenge and for which permission was not given by Lord Justice Bean. These included an alleged failure to consider whether the Claimant’s removal from the UK was foreseeable, an alleged failure to act with reasonable diligence in dealing with the Claimant’s barrier to removal from the UK and an alleged failure to consider the effect of the Claimant’s detention on the Claimant’s family. No application for permission to amend the Statement of Facts and Grounds was made either before or at the hearing and these additional matters were raised at a very late stage. It was simply asserted by Mr Noor that these factors were also relevant for consideration as factors going to whether there existed “very exceptional circumstances” justifying continued detention. As I indicated orally at the hearing, I intend to focus on the issues raised in the Statement of Facts and Grounds and Reply in respect of which permission was given or which are raised in response to the Detailed Grounds of Defence and will not take into account matters which go to an issue in relation to which permission was rejected, namely factors going to the reasonable foreseeability of removal and whether the Defendant acted with reasonable diligence in seeking to achieve removal, which form part of a more general Hardial Singh challenge.[62]In relation to the Defendant’s contention in its Detailed Grounds and skeleton argument that the Claimant presented a “high risk of harm” to the public, Mr Noor pointed to the fact that the Claimant had never been charged or convicted of any crime and indeed had not even been cautioned or reprimanded. In relation to his arrest for rape on 10 January 2016, he stated that the Claimant was not guilty of this offence and pointed to the fact that the police had determined the Claimant would not be charged due to lack of evidence. Mr Noor contended that there was no evidence whatsoever that the Claimant posed a risk of harm to the public.[63]In relation to the Defendant’s contention that the Claimant posed a “high risk of absconding”, Mr Noor relied on the Defendant’s own CGIC case record (set out at paragraph 15 above) which showed the Claimant had been assessed as a “low” risk of absconding when he was first detained but referred to the fact of the criminal allegation as a basis for detention notwithstanding the lack of evidence in this regard. Mr Noor relies on the fact that the Claimant complied with all his reporting conditions and had made no previous attempt to abscond or breach his conditions of temporary admission or bail. Mr Noor also relies on the fact that the Claimant had a wife and child with whom he sought to live. Finally Mr Noor pointed to the Defendant’s own policy under Chapter 55.3.2.5 regarding the applicable threshold for ‘Risk of Absconding’ and stated that here, it could not be met in relation to regular detainees, let alone in applying the higher threshold for those where ‘very exceptional circumstances’ were required to continue detention under Chapter 55.10.[64]In relation to the contention that the Claimant was frustrating removal, Mr Noor relied in particular on the Das case cited above, and submitted that the Claimant did nothing to frustrate his removal other than to make a legitimate application for refugee protection, a judicial review application challenging the certification of his refusal and to lodge further submissions for a fresh claim. He did not, at any point, show physical resistance to his removal from the UK. The reliance on the Claimant refusing to engage in telephone interviews with the Nigerian High Commission is, he contended, an unfair assessment of the facts because at the time of the first attempt, the Claimant was intending to claim asylum which meant he could not be removed from the UK by virtue of section 77 of the Nationality, Immigration and Asylum Act 2002, and at the second attempt, the Claimant’s only objection was to participating in a telephone interview, instead requesting a face to face interview which he did then attend.

The Defendant’s case

[65]The Defendant’s case, in summary, is as follows. In the Summary Grounds of Defence dated 12 July 2016, it was accepted that the Claimant’s injuries constituted independent evidence of an injury possibly attributed to torture but it was submitted that the Defendant was nevertheless entitled to maintain the Claimant’s detention as she considered that there were very exceptional circumstances in the Claimant’s case because the Claimant represented a high risk of absconding. It was submitted in the alternative that if the Court held any part of the Claimant’s detention to be unlawful as a result of the response dated 20 May 2016 being contradictory or inconsistent with Chapter 55.10 EIG, any damages payable to the Claimant should be nominal on the basis of the reasons set out in the letter dated 5 July 2016.[66]In the Detailed Grounds of Defence dated 19 May 2017, the Defendant relied on four matters in asserting that she was lawfully entitled to maintain detention following receipt of the Rule 35 report: i) Her assessment that the Claimant was at high risk of absconding as evidence by: a) The fact that he overstayed for more than 6 months following the expiry of his visa and was only apprehended when he was arrested on suspicion of rape; and b) His attempts to frustrate his removal by refusing to cooperate with efforts to obtain emergency travel documents on his behalf. ii) Her assessment that, by reason of his arrest on suspicion of rape, the nature of the alleged office (with a Harm Matrix score of A) and the circumstances of the decision not to proceed against him “raises doubt in relation to how he conducts himself towards women and as such it is considered that he presents a high risk of harm to the public”. iii) The lack of credibility of the Claimant’s account, as evidenced by its sheer implausibility (because the Claimant claimed to have been kidnapped and that there was a contract out on his life), the fact that he waited nearly 2½ years before claiming asylum, and then only after he had been arrested and detained; and iv) The very slight degree of corroboration offered by the Rule 35 Report, in which the examining doctors were unable to say whether the Claimant’s missing testicle was as a result of injury (whether intentional or not) or whether it was simply the result of congenital malformation. It was stated that, taking all these factors together, the Defendant was entitled to conclude that – between his high risk of absconding, the high risk of harm he presented to the public and the lack of credibility of his account – there were very exceptional circumstances that warranted his continued detention notwithstanding the slender findings of the Rule 35 report.[67]It was alternatively contended that, if the Court were to conclude that the Defendant’s assessment of the factors in the Claimant’s case was flawed, that this is a case in which the Claimant would have a claim for only nominal and not compensatory damages, having regard to his high risk of absconding and the high risk of harm that he presented to the public.[68]The Defendant’s skeleton essentially relies on the same four points raised in the Detailed Grounds of Defence.[69]Mr Metcalfe on behalf of the Defendant argued at the hearing that the assessment of the risk of absconding in the Detention Reviews (which was assessed as “high” at all times from 22 February 2016 onwards) should be preferred to the GCID note referring to a “low” risk of absconding.[70]Whilst accepting that none of the three responses to the Rule 35 report relied on the Claimant presenting a serious risk of harm, he pointed to the Detention Reviews as showing it was a consideration and he placed particular reliance on the arrest of the Claimant for a serious offence as justifying the assessment that the Claimant presented a serious risk of harm to the public. Although mere arrests are not referred to in Chapter 55 in relation to “Risk of Harm”, he stated that the guidance was not exhaustive.[71]Further, whilst accepting that none of the responses or Detention Reviews questioned the Claimant’s credibility (although in fact it appears that this was referred to in the third response dated 4 August 2016 – see paragraph 35 above), he said that this was a factor the Defendant would have been entitled to take into account.[72]Finally, it was suggested that it was implicit in the reference to the examining doctors being unable to say whether the Claimant’s missing testicle was a result of injury or congenital malformation in the response dated 20 May 2016 that it was in the mind of the Defendant that the report offered only slender corroboration for the Claimant’s claim to have been tortured, although this was not itself stated.

The test to be applied

[73]In the EO case, Mr Justice Burnett considered the conflicting authorities on whether the court should itself decide whether there has been a breach of the relevant policy (having determined its meaning) or review the legality of the detention on traditional public law grounds (at paragraphs [14-15]).[74]In that case, it was accepted by the claimant for the purposes of those proceedings (whilst reserving the right to argue the point differently elsewhere should the circumstances arise) that the Court should review the legality of the detention on traditional public law grounds. Accordingly, Mr

Justice Burnett stated:

“It follows that in considering the question of whether something constitutes independent evidence of torture, and also the question whether there are very exceptional circumstances justifying continued detention, the court’s role is to ask whether the Secretary of State was entitled on the information before her to come to the conclusion or conclusions that she did. The second aspect, whether there exist very exceptional circumstances, is one that might lead to legitimate differences of view between different people considering the same material. The first aspect, even though governed by public law principles, is in reality fairly hard-edged. Whether something is, or is not independent evidence of torture, will less often be capable of two different answers.”
[75]The issue of the conflicting authorities arose again in the BA (Eritrea)case (at paragraphs [52-55]), noting that it had been raised but not decided in R (O) v Secretary of State for the Home Department[2016] UKSC 19 but that Lord Wilson observed that for the present at least, the nature of the review is the traditional public law approach, citing R (ZS) (Afghanistan) v Secretary of State for the Home Department[2015] EWCA Civ 1137 where the Court of Appeal noted that it was bound to follow that approach which had been adopted in R (OM) v Secretary of State for the Home Department[2011] EWHC Civ 999, para.24 per Lord Justice Richards. Lord Justice Elias stated that he agreed with Mr Justice Burnett’s observation that the question of whether a report is evidence of torture is relative hard-edged and in most situations he suspected the result would be the same whichever approach was adopted, but that there was more room for differences of opinion in relation to the issue of exceptional circumstances (at [55]).[76]The issue of what test this Court should apply was not addressed in either party’s skeleton arguments. Accordingly, I raised the issue with Counsel, stating that it appeared to me that I too was bound, for the present, to adopt the traditional public law approach, whereby the Court’s role is to ask whether the Defendant was entitled on the information before her to come to the conclusion or conclusions that she did. Whilst not making the same concession as was made by the claimant in EO, Mr Noor stated that he was content that I adopt that approach and would not seek to criticise it.[77]In the present case, as already stated, it is conceded by the Defendant that there was independent evidence of torture. Accordingly the sole issue is whether the Secretary of State was entitled on the information before her to come to the conclusion that there were very exceptional circumstances justifying continued detention of the Claimant, bearing in mind that, as stated in EO and confirmed in BA (Eritrea), on this issue there is more scope for a legitimate difference of view between different people considering the same material.

Analysis and conclusions

[78]The Defendant’s response dated 20 May 2016 set out at paragraph 24 above was, as was admitted by the Defendant in her letter dated 4 August 2016, inherently contradictory. On the one hand, it admitted that the Rule 35 report constituted independent evidence of injury possibly attributable to torture but then sought to contend that because the injuries occurred due to “random acts of violence”, this was not torture. It is accepted by the Defendant that the definition of torture which was set out and seemingly applied was not consistent with the definition of torture within the meaning of the policy identified in the EO case (see paragraph 52 above) which the Defendant accepts was applicable.[79]It is apparent from the Detention Review report dated 20 May 2016 that, as a result of applying that flawed definition of torture, the Defendant did not consider that she needed to apply her mind to the question of whether very exceptional circumstances justifying continued detention existed. The Detention Review report stated as follows: “Consideration has been given to Section 55; however, as the Rule 35 claims are not accepted it is considered that Section 55 is not actually engaged and therefore exceptional circumstances reasoning for continued detention not required”.[80]According to the Defendant’s policy, given that it was accepted that the Rule 35 report constituted independent evidence of injury possibly attributable to torture existed, consideration should have been given to whether there were very exceptional circumstances justifying continued detention but was not so given. Accordingly the detention from that date was unlawful.[81]The Defendant’s supplementary response dated 5 July 2016 set out at paragraph 30 above sought to rectify the deficiency in the response dated 20 May 2016 (which had by then been realised) by setting out reasoning as to why there were very exceptional circumstances justifying continued detention. This contention that very exceptional circumstances existed was put on the basis that the Claimant presented a “high risk of absconding” as a result of being an over-stayer and only coming to the attention of the authorities as a result of his arrest. It was further stated that he had attempted to frustrate removal by failing to participate in two telephone interviews for the purpose of obtaining an ETD.[82]Even bearing in mind the scope for a legitimate difference of view between different people considering the same material, it is difficult to see how the Defendant could have concluded that these matters amounted to “very exceptional circumstances” as opposed to a more “routine” risk justifying the original detention (a distinction made by Mr Justice Burnett in EO - see paragraph 54 above). I note that the Defendant’s own records are contradictory assessing the Claimant as presenting both a “low” and “high” risk of absconding on almost the same date (see the GCID record dated 22 February 2016 at paragraph 15 above which contrasted with all the Detention Review reports which recorded the Claimant as having a “high” risk of absconding and that the Defendant, including before any issue arose over refusal to undergo a telephone interview with the Nigerian High Commission (see e.g. the Detention Review report dated 23 February 2016). Whilst it is true that the Claimant was an over-stayer and only came to the attention of the authorities as a result of his arrest, he had complied with his reporting conditions. Further, there was a legitimate reason for his refusal to comply with the process of obtaining an ETD given his intention to make an asylum claim which meant he was not liable to removal whilst that claim was being dealt with. As pointed out by Mr Noor, the Claimant didn’t wholly refuse to participate in the obtaining an ETD on 15 June 2016 but requested a face-to-face interview, which was then arranged and with which he complied on 11 July 2016. As stated in Das (paragraph 59 above), it is self-evident that the Claimant’s mere liability to be removed and refusal to leave voluntarily cannot constitute the “very exceptional circumstances” required or the policy would be denuded of virtually all its operation. There was a high hurdle to overcome to justify detention. None of the factors relied on were capable of supporting the alleged “high” risk of absconding contended for in the response dated 5 July 2016 (repeated in the response dated 4 August 2016 as a “risk of absconding”).[83]In relation to the Defendant’s reliance on an alleged “high risk of harm”, given that the Claimant was not charged or convicted due to a lack of evidence and is accepted to be of good character, the high point of the Defendant’s case is that the Claimant had been arrested on suspicion of rape. The Detention Review reports consistently refer to the Claimant as presenting a high risk of harm in the following terms:
“Despite there being no further action taken by police, it raises doubt in relation to how he conducts himself towards women and as such it is considered that he presents a high risk of harm to the public”
. However, the Defendant’s own policy in relation to “Risk of Harm” at paragraph 55.3.2.6 to 55.3.2.12 of Chapter 55 refers exclusively to “offences” and “offenders” and not to those arrested on suspicion of a crime but not then charged or proceeded against. Whilst I accept that the policy is not necessarily exhaustive, this seems to me to present a substantial difficulty for the Defendant in arguing that the Claimant did indeed present a high risk of harm. Further, as is accepted, this was not a factor relied on in support of a contention that very exceptional circumstances existed in any of the Defendant’s responses, including those of 5 July 2016 and 4 August 2016 where she specifically set out the circumstances relied upon to justify continued detention. In those circumstances and on the information before her, I do not consider that the Secretary of State in fact took the risk of harm into account as a factor in her responses. Further, I do not consider in the circumstances that an arrest without charge or conviction and there was a lack of evidence in relation to the suspected offence (albeit one that in itself was serious) can rationally support an assessment of a “high” risk of harm. Nor can any risk posed by the Claimant as a result of his arrest alone rationally amount to “very exceptional circumstances” for the purpose of the Defendant’s policy. This was not a case where the detainee posed “a high risk of killing someone else” (the example given in Das – paragraph 59 above) or which fits within the circumstances set out at paragraph 55.3.2.6 to 55.3.2.12 of Chapter 55 on Risk of Harm.[84]The Defendant contended that the slender degree of corroboration given by the Rule 35 report was implicitly relied upon in the response dated 20 May 2016. I do not agree that there was such implicit reliance. The response merely recorded the statement that the examining doctors were not confident whether the missing testicle was due to torture or congenital when setting out the relevant contents of the Rule 35 report. It was not further relied on or analysed. Further, this did not appear anyway in the supplementary response dated 5 July 2016. The report was again quoted in the further response dated 4 August 2016 (see paragraph 34 above) but without further reliance on this. Apart from the fact that it does appear to have played any, or any significant, role in the Defendant’s decision-making process, in circumstances where the examining Rule 35 doctor went on to state that he believed the Claimant was giving a truthful account, and the Defendant accepted and continues to accept that the report provided independent evidence of injuries possibly attributable to torture, it seems to me that this factor cannot reach the high threshold required to show “very exceptional circumstances”.[85]Finally, I turn to the issue of credibility of the account of torture, which is also relied on by the Defendant as constituting very exceptional circumstances for continued detention. Whilst credibility has been accepted in previous authorities to be a relevant factor in considering whether very exceptional circumstances exist for continued detention, reliance on this factor did not in fact appear in any of the responses to the Rule 35 report. Whilst in the third response dated 4 August 2016, a point is made is that the hospital letter produced in support of the Claimant’s injuries in the context of his asylum claim did not refer to a missing testicle, that was not the credibility point which is being relied upon by the Defendant in these proceedings which relates to the alleged lack of credibility of the actual account of torture given together with the time which had passed before it was raised.[86]In any event, it is clear from EO (see paragraph 54 above) that mere doubts about the credibility of the detainee are commonplace and are not sufficient to constitute exceptional circumstances. Mr Justice Burnett refers to the type of situation where a decision maker has information available which makes it clear or leads to the firm conclusion that the torture claim is untrue as being more likely to constitute very exceptional circumstances. Whilst I accept that the Defendant may have had doubts about the Claimant’s credibility, it does not appear to me that she had information or that it was clear that the torture claim was untrue such that it can be said that there were very exceptional circumstances justifying continued detention, notwithstanding the Rule 35 report constituting independent evidence of torture.[87]In relation to the Defendant’s alternative case that, had she acted differently and taken account of all the circumstances she now contends were relevant, the Claimant’s detention would have been maintained in any event and that he has therefore suffered no loss, I am unable to conclude that the Defendant has discharged her burden of proof in this regard. Whilst I accept that there may be different judgments made as to whether circumstances are “very exceptional” and that this is a judgment for the Defendant as the decision-maker, in my view, none of the factors relied on, individually or cumulatively, are reasonably capable of constituting “very exceptional circumstances” within the Defendant’s policy for the reasons set out in detail below. As stated by Mr Justice Burnett in EO, “the fact that a person is in detention will usually suggest that an assessment has been made that there is a risk of absconding, or a risk of offending or some threat to the public. The policy assumes that these facts, presenting in a way which would ordinarily justify detention, are not without more sufficient to do so when there is independent evidence of torture.” The factors relied on by the Defendant are of the type which ordinarily justified detention but are not, in the circumstances of this case, reasonably capable, individually or taken together, of meeting the much higher threshold of “very exceptional circumstances” needed to justify continued detention following receipt of the Rule 35 report which the Defendant accepted constituted independent evidence of injury possibly attributable to torture.[88]Accordingly, I reject the Defendant’s contention that the Claimant is entitled to only nominal damages and find the Claimant is entitled to compensatory damages for the period from 20 May 2016 until his removal.[89]Although Mr Noor belatedly raised a claim for exemplary damages, this was not included in the original claim in respect of which partial permission was given, was not the subject of an application for permission to amend the claim and was not argued orally at the hearing. In any event, it appears to me to be an argument for a remedy which is unsustainable on the facts of this case. The Defendant’s conduct, whilst unlawful, does not reach, or even approach, the high threshold of oppressive, arbitrary and unconstitutional conduct which would be required for an award of exemplary damages (which are punitive in nature) to arise for consideration: see Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122.[90]The claim will now be transferred to the Queen’s Bench Division for the assessment of the compensatory damages to which the Claimant is entitled