Neutral Citation Number: [2018] EWHC 1767 (Admin)
Case No: CO/386/2016
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 July 2018 

Before:

HIS HONOUR JUDGE SYCAMORE

(Sitting as a Judge of the High Court)
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Between:

	THE QUEEN on the application of KG	Claimant	
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	SECRETARY OF STATE FOR 
THE HOME DEPARTMENT	Defendant	

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David Lock QC, Anthony Vaughan, Miranda Butler (instructed by Duncan Lewis Solicitors) for the claimant
Julie Anderson (instructed by Government Legal Department) for the Defendant

Hearing date: 15 May 2018
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Judgment Approved
HIS HONOUR JUDGE SYCAMORE : 
1.	KG (“The claimant”) is a male national of Sri Lanka who was born on 6 March 1989.  He seeks to challenge the decision of the defendant to detain him in January and February 2016.  The case is concerned, in particular, with the effect of the Detention Centre Rules 2001 (“The Rules”).  The claim is for declaratory relief and damages based on an allegation of unlawful immigration detention.  I stress at the outset that this not a test case nor is it lead litigation.  It falls to be determined on its own facts alone.
2.	The claim was issued on the 21 January 2016 and originally contained four grounds.  Permission was granted in relation to grounds one and two only following an oral hearing on 18 May 2017.
3.	The original grounds had been amended on 11 August 2016 to include an additional ground five.
4.	The grounds in respect of which permission was granted were as follows:
Ground 1 (i) - alleging a systemic breach of rule 34 of the Detention Centre Rules 2001; 
Ground 1 (ii) – alleging a breach of Rule 34 in the particular circumstances of this case;
Ground 2 – alleging a breach of Rule 34 (3) and/or Rule 35 in failing to ensure provision of a Rule 34 (i) examination and Rule 35 assessment once this was requested on 18 January 2018.  This ground is only relevant if the claimant fails under ground 1.

Factual Background
5.	The claimant entered the UK lawfully on 18 January 2011 on a student visa and became an over-stayer on 5 June 2014.  He was arrested by Police on 5 January 2016.  On the 6 January 2016 he was taken to Campsfield Immigration Removal Centre (“Campsfield”) where he was detained under immigration powers.  
6.	It is accepted that the claimant underwent an initial health screening at Campsfield but despite enquiry the records of this health screening have not been traced.  
7.	On 7 January 2016 the claimant was served with removal directions to Sri Lanka.  Thereafter he claimed asylum and his removal was deferred.  On 14 January 2016 he was transferred to Harmondsworth Immigration Removal Centre (“Harmondsworth”).  Upon arrival there the claimant underwent an initial health screening by a mental health nurse (identified in the notes as “Andy”).  It was not in dispute that the notes of that screening do not contain any record of the nurse asking the claimant whether he had: 
i)	Ever been the victim of torture, or 
ii)	Whether he was refusing his consent to see a general practitioner for a medical examination.  
8.	On the 15 January 2016 at Harmondsworth the claimant underwent an asylum screening interview during the course of which he indicated that he had been tortured by the Sri Lankan authorities.  On 18 January 2016 the claimant sought a Rule 35 assessment and an appointment with the general practitioner.  There then followed correspondence from the claimant’s solicitors. On the claimant’s behalf they issued judicial review proceedings and obtained injunctive relief to prevent the defendant from carrying out the substantive asylum interview.  That relief was granted by Picken J on 25 January 2016.
9.	The claimant continued to be detained at Harmondsworth.  On 4 February 2016 the claimant was seen by a doctor who produced a Rule 35 (3) report in which he expressed his opinion that the claimant may have been a victim of torture in the following terms:
“Tells me he was arrested by paramilitaries and taken to a camp in Mathagal in Sri Lanka.  This was in 2010.  He was taken to a dark room.  They kidnapped him as his brother was in the LTT and he himself had undergone training with the LTT which is compulsory in his area (2006).  
They beat him with belts and heated metal rods – burning his hands and legs.  He was forced to put their genitals in his mouth.  He was there for one week.  He was tortured to try and get information out of him.  His father got him released on parole and he went to Columbo and escaped to the UK.  
My impression is that he has scars on his right wrist and ankle consistent with his history of torture”.  
A medical drawing was appended to the report. 
10.	The report was considered by the defendant who communicated with the claimant by letter of 8 February 2016 in the following terms:
“I am writing to you to acknowledge receipt of a report dated 05/02/2016 provided by the medical practitioner at DAC Harmondsworth Removal Centre notifying us of a special illness or condition.  Information contained within the report has been considered carefully and reviewed.  
As a result, a decision has been taken to release you from detention.  Arrangements are being made for your release which will be communicated to you separately.  A copy of this letter has been forwarded to your legal representative, where you have one ….”.  
The claimant was released from detention the same day.
11.	Subsequently on 22 December 2016 a medical report was prepared by Mr Andrew Mason in which he expressed the opinion that the scars were typical of scars which would result from injuries caused in the manner described by the claimant.  The claimant’s asylum claim remains outstanding. 
The Legal Framework 
12.	The defendant is empowered to detain a person who may be served with removal directions by virtue of Section 62 (1) of the Nationality and Immigration and Asylum Act 2002 (“The Act”) which provides:
“A person may be detained under the authority of the Secretary of State pending – 
(a) a decision by the Secretary of State whether to give directions in respect of the person under Section 10 of the Immigration and Asylum Act 1999 (removal of persons unlawfully in the United Kingdom) or paragraph 10, 10 A or 14 of Schedule 2 of the Immigration Act 1971 (c77) (control of entry: removal), or
(b) removal of the person from the United Kingdom in the pursuance of directions given by the Secretary of State under any of those provisions”.
13.	It was accepted on behalf of the claimant that this power was engaged when the claimant was arrested and detained on the 5 January 2016.  There was no dispute that the claimant fell within the ambit of the relevant statutory power to detain.
14.	The claimant also accepted that the defendant had a power to continue to detain him under paragraph 16 (1) of Schedule 2 to the Immigration Act 1971 from the 7 January 2016, the date on which the claimant claimed asylum.
15.	It was accepted by the parties that those statutory provisions provide discretionary powers to enable the Secretary of State to detain in immigration cases subject to the defendant’s policy set out in the Enforcement Instructions and Guidance.  At the relevant time the appropriate reference in the policy is to chapter 55:
“55.10 Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only 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.  
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons; ….
•	Those suffering from serious medical conditions which cannot be satisfactorily managed within detention ….
•	Those where there is independent evidence that they have been tortured
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”.
16.	It was not in dispute that the defendant is empowered to contract with an operator for the running of removal centres. The Detention Centre Rules 2001 (“The 2001 Rules”) impose obligation on the operators of detention centres.  In particular Rule 33 provides:
“(1) Every detention centre shall have a medical practitioner, who shall be vocationally trained as a General Practitioner and a fully registered person within the meaning of the Medical Act 1983 ….
(viii) the medical practitioner shall obtain, so far as reasonably practicable, any previous medical records located in the United Kingdom relating to each detained person in the detention centre
(ix) the health care team shall ensure that all medical records relating to a detained person are forwarded as appropriate following his transfer to another detention centre or a prison or on discharge from the detention centre ….”.
17.	Rule 34 of the 2001 Rules provides:
“34. – Medical Examination upon admission and thereafter
i) 	Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner) in accordance with Rules 33 (7) or (10) within 24 hours of his admission to the detention centre.
ii) 	Nothing in paragraph i) shall allow an examination to be given in any case where the detained person does not consent to it.  
iii) 	If a detained person does not consent to an examination under paragraph i), he shall be entitled to the examination at any subsequent time upon request”.
Rule 35 provides:
“35. – Special Illnesses and conditions (including torture claims)
i) 	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.  
ii) 	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 supervision 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.  
iii) 	The medical practitioner shall report to the manager on the case of any detained person who is concerned may have been the victim of torture. 
iv) 	The manager shall send a copy of any report under paragraph (1), (2) or (3) to the Secretary of State without delay.  
v) 	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”.
18.	Although in both the skeleton argument and oral submissions the claimant touched on a number of issues including that of consent I take the view that in considering whether this claimant is entitled to the relief claimed I am concerned essentially with the very specific facts in relation to the events at and soon after the claimant’s detention.

Discussion
19.	It was not disputed that there was no Rule 34 examination at either Campsfield or Harmondsworth.  A failure to ensure that such an examination took place as required by the Rules bears on and is relevant to continued detention.
It was accepted that there was an initial health screening at Campsfield.  I have already indicated that no record of that has been traced but, in any event, it was accepted that the screening was by a nurse and was not a Rule 34 examination.
20.	Again it is not disputed that there was an initial health screening at Harmondsworth by a nurse “Andy”.  There is no record, as I have indicated at paragraph 7 supra, of the claimant being asked whether he had ever been a victim of torture.  Similarly there is no indication that he refused consent to see a general practitioner for a Rule 34 examination (see Rule 34 (ii)).  Rule 34 (i) requires every detained person to be given a physical and mental examination within 24 hours of admission.  That it is to say that it must be arranged for every detainee and is only not to go ahead if the detained person does not consent to the examination.   In my judgment consent is not an issue which falls to be considered in this case as the claimant’s account is that no offer of such an examination was made at either Campsfield or Harmondsworth.
21.	To counter this the defendant seeks to argue that the claimant is a poor historian and invites the court to consider that his account of events at Campsfield and Harmondsworth is not sufficiently reliable.  Essentially the defendant submits that the claimant is a poor historian who gave inaccurate answers when examined at Campsfield and Harmondsworth and has failed to give a reliable account of his immigration history.  The defendant points to differences between his actual history and the account he gave subsequently when examined by a psychiatrist.  The defendant suggests that the court should have reason to doubt the claimant’s objectivity and veracity in matters that support his claim and invites the court to conclude that the most likely position is that usual practices were adhered to at Campsfield and Harmondsworth and the claimant declined a Rule 34 appointment.
22.	The contrary position advanced by the claimant is that his position and account should be preferred as the defendant has not advanced any evidence to contradict what he said either in respect of the admission at Campsfield or the admission following his transfer to Harmondsworth.  I pause to observe that whatever view is taken it is accepted by the parties that there is no record of any refusal by the claimant of a Rule 34 examination at either institution by the claimant.
23.	The claimant’s evidence is set out in his witness statement of 17 April 2018.  In respect of his detention at Campsfield the claimant said this:
“13.  Another staff member then took me down a corridor and into a separate room where I was asked questions about my health such as my height, my weight, and my dietary requirements.  I told them that I had asthma (I cannot recall whether I told them this at the Campsfield or Harmondsworth, or both, but I definitely mentioned this at least once in the initial health screening when I was detained in January/February 2016).  The staff member who asked me these questions did not introduce themselves, say what their job was or what they were going to do.  I do not know whether this was a health care professional.  They were wearing exactly the same clothes as the two members of staff who dealt with me in the holding room.  The procedure was the same as the one I experienced when I was taken into Haslar IRC in late 2014.  These questions were asked in English.  They did not offer me an interpreter; had I been given the option I would have opted to have one.  Overall I understood the broad nature of what was being asked of me but not as clearly as I would have liked; and I did not understand everything 100%.  I was very nervous and feared being removed and did not think to ask about an interpreter.
14.  I was not asked if I had ever been tortured; and I was not offered an appointment with a doctor …..”.
In respect of detention at Harmondsworth:
“…. 25.  At the initial health screening on 14 January 2016, I was not offered an appointment with a doctor.  I had no idea at that time that I had a right to a medical examination by a doctor within 24 hours of admission to detention to check that I was suitable to be detained.  I was not examined by a doctor at all until 4 February 2016.
26.  The initial health screening at Harmondsworth was also conducted in English.  I could largely understand what was being asked of me, but, again, I did not understand everything 100% and I would have preferred to have used an interpreter and would have chosen to have one had I been offered this….”.
24.	The claimant accepted that he may have answered some questions inaccurately but his account that he was not offered what amounted to a Rule 34 examination at either Campsfield or Harmondsworth is borne out by the lack of any documentation to suggest that he was or that he declined to consent.  There is a complete absence of any evidence on behalf of the defendant to contradict the claimant’s account.  In essence, as I have already indicated the defendant says little more than that the court should assume that the claimant is a poor historian.  In the absence of any evidence to contradict the claimant’s account it is impossible to reach that conclusion.  As I have already observed there is no note to effect that an appointment was offered at either institution or that there was any lack of consent on the part of the claimant.  No evidence from “Andy” the mental health nurse at Harmondsworth has been advanced by the defendant.
25.	In considering this case I take the view that it is unnecessary to look beyond the actual factual events around the time of admission to establish whether on the facts of this case the defendant complied under Rule 34.  Whether or not there was any systemic failure at Harmondsworth does not take matters any further given the need to examine the particular circumstances of this claim.
26.	In respect of Rule 34, against the factual background I have described, I am satisfied that there were failures at both Campsfield and Harmondsworth to comply with the requirements of Rule 34 and no evidence to suggest that an appointment was offered to which the claimant did not consent.
27.	It is then necessary to consider the effects of the breach in the context of the particular circumstances of this case.  The mere fact of breach does not automatically render the detention unlawful given the need to consider the relevance of the findings from the examination in the context of the obligation on the medical examiner to produce a report under Rule 35 on any detainee who might have been the victim of torture.  The question that has to be considered is whether, had the Rule 34 medical examinations been carried out when they should have been would they have led to the claimant’s earlier release?  It is only in those circumstances that the claimant would be entitled to substantial damages.  It should be remembered that Rule 34 is concerned with the requirement to provide an examination whereas Rule 35 is concerned with the obligation on the part of the medical practitioner to report findings to the centre manager.  In circumstances where there is independent evidence that a person has been tortured that individual should remain in detention only in very exceptional circumstances (see paragraph 15 supra).  It follows, in my judgment, that a failure to follow the requirements of Rule 34 and to ensure that an examination takes place within 24 hours of admission undermines the process prescribed for the identification and release of the victims of torture.  Burnett J (as he then was) in R (EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) noted:
“The Rule 35 report, although it can come at any time and result from information or an examination which post dates initial reception in the detention centre, is likely in many cases to be a product of the initial examination at which physical and mental health problems may well be revealed as well as issues relating to torture”.
28.	Put simply then the question is whether, if the Rule 34 examination had taken place when it should have done at either Campsfield or Harmondsworth would the outcome, that is to say, the recognition of issues relating to torture, be likely to have led the doctor, in complying with his Rule 35 obligations, to report that finding and would that have resulted in the claimant’s earlier release?
29.	In my judgment that conclusion must necessarily follow given the unambiguous wording used by the doctor as to his findings (report February 2016) and the consistency of the injuries with the account given by the claimant.  It follows therefore in my judgment that the claimant was unlawfully detained from the expiry of 24 hours after his arrival at Campsfield. In the light of what I have said about subsequent events at Harmondsworth that must extend to the majority of the claimant’s detention there, save for a reasonable period during which the defendant would have needed to consider the doctor’s report which, in the event, was 4 days (the doctor prepared his report on the 4 February 2016 and the defendant wrote to the claimant on the 8 February 2016).  The claimant was released on the same day.  The period of unlawful detention is therefore from 24 hours from his admission to Campsfield on 6 January 2016 until his release on 8 February 2016, from which 4 days must be deducted to represent the time that the defendant would have needed in any event to consider the views of the doctor from the medical examination whenever that was undertaken.
30.	In those circumstances I am satisfied that the claimant’s entitlement is to substantial damages for unlawful detention.  As I have already observed it is clear from the later events in this case that very quickly after the claimant saw the doctor on 4 February 2016 the defendant accepted the result of the Rule 35 (iii) report releasing the claimant “as a result of” the contents of that report.  There is nothing which persuades me that a doctor would have reached a different conclusion had he examined the claimant within 24 hours of admission.
31.	The parties indicated that in the event that there was a finding that the claimant was entitled to substantial damages they would appreciate the opportunity to endeavour to agree quantum.  In the circumstances I invite the parties to agree a form of order which should include provision for damages to be assessed in the event that agreement cannot be reached.