Case No: CO/17099/2013
Neutral Citation Number: [2014] EWHC 4223 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/12/2014

Before :

His Honour Judge McKenna
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Between :

	The Queen on the application of B A	Claimant	
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	Secretary of State for the Home Department	Defendant	

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Jo Wilding (instructed by Kaweh Beheshtizadeh, Fadiga & Co Solicitors) for the Claimant
Catherine Rowlands (instructed by TSOL) for the Defendant

Hearing dates: 10th December 2014
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Judgment
HHJ McKenna : 
Introduction 
1.	In this claim the Claimant B A, an Eritrean national, born on 19th July 1983 originally sought judicial review of the Defendant Secretary of State for the Home Department’s decision dated 8th November 2013 (page 161 and following) to refuse and to certify the Claimant’s asylum claim on third country grounds and to remove her to Italy.
Background
2.	The Claimant arrived in the United Kingdom on 17th October 2013 and was detained. Enquiries revealed that the Claimant had previously been fingerprinted in Italy on 6th September 2013 so that under 343/2003 Dublin 2, the Italian authorities were responsible for the Claimant’s asylum claim.
3.	On 7th November 2013 Italy accepted responsibility for the consideration of the Claimant’s asylum claim under Dublin 2 and on 8th November 2013 the Defendant refused and certified the Claimant’s asylum claim and on 15th November 2013 removal directions were set for 25th November 2013 (page 167) which were subsequently cancelled under cover of a letter dated 21st November 2013 (page 149) on the grounds that the Claimant was unfit to fly.
4.	On 22nd November 2013 this claim for judicial review was filed in which the Claimant sought to challenge the Defendant’s decision to certify her asylum claim and the subsequent directions set for her removal on the grounds that (i) she was medically unfit to fly; (ii) if removed to Italy she would face a real risk of treatment contrary to Article 3; and (iii) her detention was unlawful.
5.	On 9th December 2013 the Defendant refused the Claimant’s request for temporary release (page 64) in these terms:
“Your client’s claim to be a victim of torture had been addressed on 23/10/2013 and we do not believe your client’s claims.
Your client has demonstrated a blatant disregard for the immigration laws of the United Kingdom. She was encountered exiting a lorry that had just arrived in the UK. Therefore attempting to enter the UK by clandestine means.
Your client has no proven close ties in the UK therefore we can not be sure that she will remain in one place or she will surrender to custody to implement her removal.
Your client has not produced satisfactory evidence of any lawful basis to remain in the United Kingdom.
There are no other proven compelling or mitigating factors to consider her release.
Your client’s detention will, however, be reviewed at regular intervals and should your client’s detention be no longer considered appropriate release will be arranged accordingly”.
6.	The Claimant was released from detention on 17th January 2014 on bail by a judge of the First Tier Tribunal.
7.	Permission was originally refused on the papers by Michael Kent QC on 29th January 2014 but was then granted by Ms D Gill at a renewed application on 17th June 2014 by which time the Claimant had already withdrawn grounds (i) and (ii) of her claim so that the sole remaining issue was whether the Claimant’s detention from 17th October 2013 until 17th January 2014 was lawful.
The issues
8.	What is said on behalf of the Claimant is that her detention was unlawful either:
i)	From 23rd October 2013 until 17th January 2014 because the Defendant should have released her as a result of the Rule 35 report, or the Defendant failed to give proper reasons for deciding to continue detaining the Claimant (“the Rule 35 issue”); or
ii)	From shortly after 22nd November 2013 when the removal directions were deferred, the judicial review application was filed and no further removal directions were set, there being reasonable alternatives to detention; or
iii)	From 9th December 2013 when the Defendant refused temporary release without adequate or lawful reasoning (“the reasonableness of detention issue”).
9.	The Defendant for its part maintains that the Rule 35 statement did not provide any independent evidence of torture and that the detention of the Claimant throughout the whole of the relevant period was lawful.
Legal Framework
10.	It is common ground that the Defendant had a power to detain the Claimant and that it was her intention to remove the Claimant to Italy pursuant to the provisions of Dublin 2.
11.	It is also common ground that the power to detain is subject to:
i)	The Defendant’s policy as set out in her Enforcement Instructions and Guidance Chapter 55.10 on categories of persons who are considered generally unsuitable for detention, unless very exceptional circumstances justify their continued detention. The categories include those in respect of whom there is independent evidence that they are victims of torture; and
ii)	The implied limitations on the exercise of the power of detention known as the Hardial Singh principles namely:
i)	The Defendant must intend to deport the person and can only use the powers to detain for that purpose;
ii)	The deportee may only be detained for a period that is reasonable in all the circumstances;
iii)	If, before the expiry of the reasonable period, it becomes apparent that the Defendant will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention;
iv)	The Defendant should act with reasonable diligence and expedition to effect removal.
12.	In R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 6521 Lord Justice Rix set out the principles which apply as follows:
“25. In this connection the Secretary of State has published policy guidance (the Guidance), which, although it has the quality of policy rather than law, can, where that policy has not been applied, render the Secretary of State liable for the tort of false imprisonment. Thus the Secretary of State is obliged to follow policy absent good reason not to do so and, where the breaches bear directly upon detention may, by vitiating authority for detention, sound in damages for false imprisonment: see Lumba and R (Kambadzi) v. SSHD [2011] UKSC 23. Causation goes to damages not liability.
26. The decision on such questions is for the court itself, and does not depend on the application of Wednesbury principles of review: R(A) v. SSHD [2007] EWCA Civ 804 at [71] per Keene LJ, and Anam v. SSHD [2010] EWAC Civ 1140 at [77] per Maurice Kay LJ.
27. At the liability stage, the burden of proving lawfulness is on the Secretary of State: Lumba at [44]”.
13.	It is now well established that a Rule 35 report can be independent evidence of torture depending upon its content, see R(on the application of EO & Others) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) and R(D & K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin).
14.	The Detention Services Order (“DSO”) 17/2012 gives guidance on the content and effect of a Rule 35 report as follows:
•	“20 If the medical practitioner is concerned that a detainee may have been a victim of torture he/she must always make a rule 35(3) report. Rule 35 places medical practitioners at the centre of the process and fundamentally it is for the medical practitioner to decide if he/she has concerns in a professional capacity that a detainee may have been the victim of torture.
•	“21 The medical practitioner has no obligation to report an allegation from the detainee if this allegation does not cause the medical practitioner him/herself to be concerned, in the context of the overall medical examination, that the person may be a victim of torture. However, if an allegation does cause the medical practitioner to be concerned, then he/she should report it. The medical practitioner should set out clearly if his/her concern derives from an allegation with no or limited medical evidence in support.
•	23…The medical practitioner must identify any medical evidence which may be contrary to the account given by the detained person.
•	25 A Rule 35 report is a mechanism for a medical practitioner to refer on concerns, rather than an expert medical-legal report and so there is no need for medical practitioners to apply the terms or methodology set out in the Istanbul Protocol”.
15.	The Defendant’s officials are instructed on reviewing and responding to Rule 35 reports in the “Detention Rule 35 Process” instruction as follows:
“Review the report on receipt:
If the medical practitioner clearly states that the report reflects a repeated claim or assertion rather than a reasoned medical concern (the practitioner is entitled to do this), the report must be considered, although it will likely carry less weight as a consequence);
If the report states that it raises a medical concern, but contains insufficient content to understand the medical concern, meaningful consideration of the report will not be possible (such a view must not be reached lightly). In such cases, telephone the Home Office contact management team in the IRC immediately and ask them to obtain sufficient information from the IRC medical practitioner for meaningful consideration, and to repeat the issue in process. The response timescales will resume once report with meaningful content has been received. DSO 17/2012 stipulates that timescales applicable to the IRC actions in obtaining a more detailed report (although upon receipt, every attempt must be made to respond as promptly as possible). Record on CID Notes the fact of the report’s lack of content, the outcome of telephone call and the name of the person in the Home Office contact management team and agree action”.
16.	Section 55.10 of the Enforcement Instructions Guidance lists groups of people who are considered suitable for detention only in very exceptional circumstances. This list includes those with “independent evidence of torture”.
The Rule 35 issue
17.	The Rule 35 report is at pages 80 and following in the bundle. The medical practitioner concerned, Dr Hayes, prepared his Rule 35 report on 19th October 2013 (page 80-83). Dr Hayes ticked the box which states:
“I have concerns that this detainee may have been the victim of torture”.
and he went on to detail the account of what she had reported to him as having happened to her as follows:
“In 1998, aged 15y, she was expelled from Ethiopia with her father and sent to Eritrea. Her father was caught as he was thought to be a criminal by the Eritrean police and she was taken with him to prison. They were kept in prison for about one month and her father died there – killed by them. She was questioned about her father, she was slapped, kicked and raped on one occasion. She was slapped and kicked on many occasions.
After one month in prison, she left prison and went to Lebanon.
She does not have any scars to document”.
18.	The Defendant’s response to the Rule 35 report is set out in a letter dated 22nd October 2013 (page 84 and 85) and maintained detention. The letter contained the following material paragraphs:
“In this report you have alleged that in 1998 aged 15 years your father was arrested by the Eritrean police as he was thought to be a criminal and you were taken with him to prison where you were kept for approximately one month. You stated that your father died there (killed by the Eritrean police). You have claimed that you were questioned about your father and that you were slapped and kicked on many occasions and raped on one occasion. After one month in prison you left and went to Lebanon.
When asked if you had any medical problems during your screening interview you stated that you had a problem with hearing and vision but nothing else. You also made no mention of your torture allegation during your screening interview.
The medical report which has been submitted expresses concern that you may have been a victim of torture. The medical practitioner has stated that you have no physical scars to corroborate your allegation of torture. It is noted that Healthcare at Yarl’s Wood IRC has not raised any fears about any medical conditions that prevent you from being detained and he has not highlighted that your health is likely to be induressly affected by continued detention or any conditions of detention.
It is not accepted that the medical report submitted constitutes independent evidence of torture; it is a record of your claim to the medical practitioner. Your statement has not led the practitioner to express their own reasoned concern that you are a victim of torture”.
19.	What is said on behalf of the Defendant is that the court must have in mind the fact that what the Claimant was alleging was that she had been the victim of rape in her home country and not in Italy and that that was an issue which would be investigated in Italy. Moreover, the importance of any Rule 35 report lies in whether it flags up any vulnerability which might mean that special treatment was required.
20.	Doctors were to be expected to accept the account given by a patient unless there were good grounds for rejecting it or any material part and in truth the Rule 35 report did no more than record the Claimant’s allegation of torture and did not record any physical or psychological consequences which could amount to evidence nor did it demonstrate that the Claimant was not suitable for detention and it was hardly surprising that the doctor therefore had ticked the relevant box. The mere fact that the doctor found the account credible enough to tick the box was not any evidence of the facts asserted nor was the mere ticking of the box even evidence that the doctor himself found that evidence to be credible and if so to what extent.
21.	Reliance was placed on Ashraf v Secretary of State for the Home Department [2013] EWHC 4028 (Admin) where a Rule 35 report stating that the claimant in that case might have been tortured was held to have gone nowhere near justifying release.
22.	For my part I do not accept the thrust of the submissions made on behalf of the Defendant. Whilst it is true that Dr Hayes did not explicitly specify that he believed the Claimant’s account and that not every Rule 35 report amounts to independent evidence of torture, the fact of the matter is that Dr Hayes did record what he was told and he did tick the box recording his “concerns”. A doctor does not have to prepare a Rule 35 report if he does not have concerns and the doctor is also entitled to state that the report is nothing more than a repetition of an assertion made which does not give rise to a reasoned medical concern. However in this case Dr Hayes did not give any indication that the Claimant’s account was doubted by him. He has therefore given some credence to what the Claimant reported to him and that is sufficient to amount to independent evidence. As it seems to me, it can be assumed that the doctor was expressing a concern of his own since that is implicit in what he in fact did in ticking the box and indeed in choosing to make a report in the first place. As Ms Gill commented when granting permission where, as here, the allegation is of rape it is difficult to see what the doctor could have added, scars being irrelevant and other discernible evidence of rape not being expected.
23.	Moreover, if the Defendant’s interpretation of the Rule 35 report were to be correct it does raise questions as to whether Rule 35 reports could ever be an effective safeguard where the torture in question took the form of rape.
24.	Ashraf is of no assistance to the defendant since the factual matrix was very different with the claimant’s credibility in that case having been very firmly questioned on various occasions.
25.	For all these reasons I conclude that the contents of the Rule 35 report in this case did amount to independent evidence of torture and should have been treated as such by the Defendant.
26.	Having so concluded, the next question which arises is whether there were exceptional circumstances justifying the Defendant’s decision to maintain detention. In my judgment there were not. At the time of the decision to maintain detention, the Defendant had not even made a request to Italy to take the Claimant back and no removal directions had been set (albeit that those two steps were taken shortly afterwards). Moreover, the Claimant presented no more than a generic risk of absconding and there were no factors on which an assessment of a high risk could properly be based. Whilst I am satisfied that the Defendant intended to remove the Claimant to Italy there was in my judgment no need for the Claimant to be detained in the interim period, administrative convenience being no justification.
The reasonableness of detention issue
27.	In the circumstances I can deal with this issue shortly. By 22nd November 2013 the judicial review claim had been lodged and it was plainly foreseeable that there was no prospect of the Claimant being removed in the near future.
28.	It is to be noted that the Defendant considered the question of the Claimant’s release on a number of occasions prior to the ultimately successful bail hearing on 17th January 2014. Thus there were detention reviews on 5th December 2013 (page 205 and following) and on 2nd January 2014 (page 213 and following) and in between the application for temporary release which was refused as I have recorded on 9th December 2013 in the terms of the letter which appears at pages 64 and 65.
29.	To my mind the Defendant’s approach to decision making on each of these occasions was flawed. There was no consideration of the likely timescale for removal having regard to the Claimant’s medical condition and the existence of this claim and the fact that a decision of the Supreme Court was awaited which would or might have an impact on this claim; there was no proper assessment of the risk of absconding and, in respect of the decision to refuse temporary release, it is plain that the Defendant’s reasoning was also flawed since:
i)	Contrary to the contents of the letter, the Claimant’s allegation of torture had not been substantively considered; on the contrary it was the Defendant’s case throughout that that was a matter for the Italian authorities; and
ii)	The decision maker appears to have misunderstood the presumption in favour of liberty and instead seems to have required the Claimant to justify her release.
30.	It follows in my judgment that a lawful decision to detain could not have been made after 22nd November 2013 because there were no factors which made it reasonable to continue to exercise the power to detain. The Claimant on any view presented a low risk of absconding and no risk of harm whilst there were barriers to her removal which were likely to persist for an unknown period.
Conclusion
31.	It follows in my judgment that the Claimant is entitled to a declaration that her detention was unlawful from 23rd October 2013 until 17th January 2014 and that she is entitled to damages for false imprisonment.
32.	I trust that the parties will be able to agree the terms of an order which reflects the substance of this judgment.
33.	Unless the parties can agree damages, as it seems to me, and subject to any submissions to the contrary the case should now be transferred to the County Court for assessment of damages.