AM, R (on the application of) v Secretary of State for the Home Department

These proceedings concern AM’s (the appellant’s) claim that she was illegally detained, purportedly pursuant to paragraph 16(2) of the Immigration Act 1971 as an illegal immigrant pending removal, in the period between 10 October and 13 November 2008. On 13 November 2008 she was granted bail by the AIT and her detention ceased. On 10 October 2008 she had been in detention since 11 April 2008, but it was only on 10 October that her claim for judicial review was issued and served by new solicitors, Wilson Solicitors LLP, following their service on the previous day, 9 October, of fresh material and representations concerning her claim to asylum. That material included two reports prepared by Lucy Kralj of the Helen Bamber Foundation dated 7 October 2008 concerning the appellant’s mental health and scarring.

In the light of that fresh material and in particular Ms Kralj’s reports the question arose whether, pursuant to the Secretary of State’s Enforcement Instructions and Guidance (the “Guidance”), the appellant should have been regarded as unsuitable for detention and therefore released. The critical provisions of the Guidance for the purposes of this appeal are parts of its para 55.10 as follows:

The appellant submits that Ms Kralj’s reports contained independent evidence that she, the appellant, had been tortured and that on that basis the Secretary of State should have released her from detention from 10 October 2008 or shortly thereafter, but in any event before her actual release on 13 November. On 4 November 2008 the Secretary of State had replied to the fresh representations, rejecting them as constituting a new claim for asylum, and wholly discounting the reports of Ms Kralj in the light of the appellant’s previous lack of credibility.

The essential issue on this appeal therefore is whether Ms Kralj’s reports contained independent evidence that the appellant had been tortured. The Secretary of State, below the defendant and in this court the respondent, denied that it did. She submitted that because the reports were based on the appellant’s own information it did not constitute “independent evidence”. The judge below, Mr Justice Burnett, agreed, and in any event found that there were very exceptional circumstances justifying detention. In his judgment of 31 March 2010, [2010] EWHC 684 (Admin), he put the matter as follows:

As the judge observed, the appellant had previously been adjudged to be lacking (indeed totally lacking) in credibility. However, the tribunals which had considered her evidence had not known about her scarring. Ultimately, but after a long history of failure, the appellant succeeded in her asylum claim in a determination of the First Tier Tribunal dated 23 June 2010. That was after the judgment of Burnett J below. The FTT found that she had been detained in Angola, raped and tortured as claimed, and that her scars were the result of violent abuse or torture.

AM’s immigration and earlier litigation history can conveniently be taken from the judge’s account:

It was just a few days earlier that the appellant obtained representation by her current solicitors, following her attendance at an advice surgery at Yarl’s Wood detention centre. They referred her to the Helen Bamber Foundation and she attended there on 4 October 2008 and was seen by Ms Kralj. Up to that time she had not adduced any witness statement, medical or other expert evidence in support of her claim. However, her new representations of 9 October 2008 fared no better. The judge picks up the story:

However, in the meantime the appellant had been released from detention, on bail, by the AIT itself, on 13 November 2008. The final, successful, application for bail was lodged with the AIT on 7 November 2008. The grounds were that the appellant was a victim of torture, that she was unlikely to abscond, and that her removal was no longer imminent. Bail was opposed by the Secretary of State. Summary grounds of opposition in the appellant’s judicial review proceedings were also lodged on 7 November 2008. As of that time the appellant’s claim for false imprisonment had not yet been intimated.

Relevant provisions of the Guidance are as follows:

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.

All reasonable alternatives to detention must be considered before detention is authorised.

Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified…

Each case must be considered on its individual merits.

I pick up the findings of the judge as follows. The core contention in the letter of 9 October 2008 was that the Immigration Judge had been wrong on the question of credibility and that AM’s previous failure to describe the treatment she had received at the hands of Angolan soldiers or her scarring was because of the sexual nature of the events. The report from Ms Kralj provided the substance on which AM relied. Ms Kralj is a registered nurse then working as clinical co-ordinator at the Helen Bamber Foundation. She had worked as a specialist nurse for asylum seekers across four health trusts prior to that. Ms Kralj had the benefit of a draft statement by AM dated 3 October 2008 but no other documentation, such as AM’s original asylum interview, the Secretary of State’s rejection letter, the Immigration Judge’s determination or the history of unsuccessful applications in legal proceedings.

In the “Conclusion” of her main report Ms Kralj wrote:

Ms Kralj also produced a scarring report detailing scars on the right arm and both legs, most of which AM stated were the results of torture. Nine areas of scarring were identified. Two were attributed by AM herself to childhood mishaps. Of the seven others Ms Kralj’s conclusions were, in the judge’s own summary, as follows:

Ms Kralj’s scarring report began by stating that “I confirm that I have read and understood the Istanbul Protocol”.

The Istanbul Protocol (the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted to the United Nations High Commissioner for Human Rights on 9 August 1999) is of international importance and regard where an account of torture is or is likely to be the subject of challenge. Paras 186/7 of Chapter Five, under the heading “D. Examination and Evaluation following specific forms of Torture”, state:

Not consistent: the lesion could not have been caused by the trauma described;

Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes;

Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes;

Typical of: this is an appearance that is usually found with this type of trauma, but there are other possible causes;

Diagnostic of: this appearance could not have been caused in anyway other than that described.

It is clear from Ms Kralj’s opening statement in her scarring report that she had regard to the Istanbul Protocol. Her description of “highly consistent” for scarring A is clearly a direct use of the Protocol’s categorisation. It is the highest categorisation other than “Typical of” and “Diagnostic of”. See also her use of “consistent with” for scarring C (the next highest categorisation). Ms Kralj’s description of scarring I as being inconceivably caused by anything other than a blade or shard of glass is tantamount to the highest categorisation of “Diagnostic of”.

It is plain that Ms Kralj believed AM, and the judge so found: see his para 24 cited above, where he said – “It is clear, not only from the scarring report but also from the narrative part of Ms Kralj’s assessment report, that she believed the claimant, taking everything she said at face value”.

However, I would not agree that Ms Kralj was merely taking everything AM said “at face value”. She was reporting as an experienced assessor in such matters, and she was conducting a “health assessment”. Her biography was included with her reports. She was not medically qualified as yet, but she had a wealth of relevant experience. Apart from being the clinical co-ordinator of the Helen Bamber Foundation, she was a senior trainee in psychotherapy on a Masters level study programme, closely supervised by an experienced psychotherapist (Dr Gottesman) and consultant psychotherapist (Dr Maginn). She had a certificate from the Tavistock and Portland Clinic in Working with Refugee Families and significant experience working with torture survivors. She is an honorary lecturer at King’s College. She has a long list of publications to her credit. Her report set out her detailed findings of AM. It is of course true that her assessment was conducted without the benefit of knowledge of AM’s litigation history. But then that litigation was conducted without the benefit of Ms Kralj’s reports.

The Secretary of State’s immediate response to these new representations and the judicial review claim came in the form of a letter from the UK Border Agency (“UKBA”) dated 11 October 2008. That stated that in the light of the appellant’s previous immigration history the Secretary of State would not comply with the usual policy of deferring removals pending the outcome of the claim. The letter did not engage with the substance of the representations. As a result the appellant sought and obtained an injunction against removal from Mr David Elvin QC on 13 October 2008. On 15 October 2008 the appellant wrote to the Secretary of State asking why she was still in detention.

The Secretary of State responded to these new representations by letter dated 4 November 2008, refusing to accept those representations as a fresh claim. The letter was included with the Secretary of State’s acknowledgment of service and summary grounds of opposition dated 7 November. After emphasising the Immigration Judge’s rejection of AM’s credibility, the letter of 4 November continued:

The appellant’s claim for unlawful detention was raised by her solicitors’ letter dated 1 December 2008 and her judicial review claim was amended on 22 December to include it.

On 25 March 2009, following still further representations, the Secretary of State, whilst rejecting them, finally accepted that all the material taken together amounted to a fresh claim.

Evidence has been filed in these proceedings on behalf of the Secretary of State by Angus MacDonald. In his statement he said –

There was no apparent difference between the parties as to the legal framework relevant to this claim. Any differences arose on the application of the test.

Thus, para 16(2) of Schedule 2 to the Immigration Act 1971 gives the Secretary of State the power to detain a person liable to be removed from the country pending a decision whether or not to give directions for removal and pending removal in pursuance of such directions. However, limitations on the analogous power of detention under the 1971 Act’s Schedule 3 (deportation cases) as articulated by Woolf J in R v. Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and distilled by Dyson LJ in R (I) v. SSHD [2002] EWCA Civ 888, [2003] INLR 196 at [46] are equally applicable to Schedule 2 cases: and were approved in R (Lumba) v. SSHD [2011] UKSC 12, [2011] 2 WLR 671, see at [22] per Lord Dyson JSC.

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, [2011] 1 WLR 1299. Causation goes to damages not liability (ibid).

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.

At the liability stage, the burden of proving lawfulness is on the Secretary of State: Lumba at [44].

So the issue in this case is whether the judge was right to find (a) that there was no independent evidence of torture, and (b) that, even if there was, there were in any event very exceptional circumstances why detention should have been maintained.

In my judgment, Ms Kralj’s reports constituted independent evidence of torture. Ms Kralj was an independent expert. She was expressing her own independent views. As the judge himself said, her scarring report provided independent evidence of AM’s scarring, and that seven of the scars were consistent with deliberately inflicted injury. If they were deliberately inflicted, who had inflicted them? It may have been in theory possible that they were deliberately inflicted by AM herself, or even by another person for some reason other than torture, but that would not be likely. It was not a thesis that Ms Kralj put forward. On the contrary, it is evident from her assessment that she believed that AM had suffered torture and rape and that those misfortunes had rendered her the “grossly traumatized” woman that she found her to be, with “feelings of deep and intense shame and self disgust”, “feelings of shame and stigmatization”, and a “fragile mental state”. Those findings are Ms Kralj’s interpretation of what she found, they are not the mere assertions of AM.

On the contrary, as Ms Kralj repeatedly observed, AM was reticent and understated. As the judge himself rightly stated, Ms Kralj “believed the claimant”. That belief, following an expert examination and assessment, also constituted independent evidence of torture. Ms Kralj’s belief was her own independent belief, even if it was in part based on AM’s account. However, the judge was mistaken to suggest that such belief was merely as a result of “taking everything she said at face value”. A fair reading of her reports plainly went very much further than that. If an independent expert’s findings, expert opinion, and honest belief (no one suggested that her belief was other than honest) are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of “evidence” is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard (and the burden and standard of proof in asylum cases are not high), is a matter of weight and assessment.

The only reason ultimately given by the judge for not accepting Ms Kralj’s reports as independent evidence of torture is contained in the last sentence of his para 24, where he said: “But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant’s account how they were caused” (emphasis added). If the judge was talking about Ms Kralj’s belief, that was plainly independent evidence, even if it depended in part on formulating her opinion in the light of AM’s account. If, however, the judge was referring to the “acceptance” by the Secretary of State, that is neither a matter of evidence, nor is it independent, and the judge would be adding a new requirement, not mentioned in the Guidance, to qualify the Secretary of State’s policy.

I therefore conclude that, irrespective of whether the burden of proof falls on the Secretary of State or on AM, Ms Kralj’s reports constitute independent evidence that AM had been tortured.

On that basis, the next question which arises is whether, despite that independent evidence, there were here very exceptional circumstances in favour of maintaining AM’s detention. In my judgment, there were not.

The judge considered that there were, which he referred to compendiously at the end of para 27 of his judgment by saying: “The immediate background to the receipt of these representations provided ample material to support detention very exceptionally pending a decision on permission to apply for judicial review”. It is not entirely clear what factors the judge was taking into account in that sentence, especially bearing in mind that the assessment of very exceptional circumstances is ultimately for the court. However earlier in his judgment the judge had mentioned such things as the Secretary of State’s assertion that the new representations were a try-on when set against the background of the total failure of AM’s asylum claim to date; the AIT’s view that AM was totally lacking in credibility; the previous refusal of bail on the ground of “a materially greater risk of her absconding” (as Immigration Judge Khan had put it); and Goldring J’s view that a previous judicial review claim (lodged in July 2008) was totally without merit and hopeless.

In this court Mr Jeremy Johnson QC for the Secretary of State relied on similar factors. However, such factors reflect the position before the new representations of 9 October 2008 and the new judicial review claim of 10 October 2008 based on those new representations had been made. Previously, AM had been (very largely) unrepresented, had made no witness statement, and had not been referred to the Helen Bamber Foundation. Previously there had been no health assessment and no report of scarring. Moreover, AM was neither an offender nor an absconder. Despite what Immigration Judge Khan had said, the facts reveal, stated on a single sheet of paper dated 30 October 2008 produced by UKBA itself, that AM had reported 34 times, had reported late on a single occasion, and had failed to report (“No shows”) only 6 times, with the explanation of “subject unwell” against at least 4 of those times. Despite these facts, the Secretary of State in her opposition to bail had referred to the “risk of absconding”; and had also erred (as the judge had to remark) in saying that she had “presented a false passport on arrival”. The real complaint was that a notice had been issued to her for having falsely obtained a visitor’s visa, not for having presented a false passport.

In my judgment, however understandable it may have been that the Secretary of State was guided by the past results of AM’s unrepresented litigation as an asylum seeker, she failed to give due regard to the significant change which had occurred with the representations of 9 October and the Kralj reports. These had to be considered on their own merits, however much scepticism may have been generated from the past, and on their own merits it was wrong to have described them as a “try-on”. In any event, the Secretary of State did not at the time invoke the exception of “very exceptional circumstances”. I do not rely on subsequent events for my conclusion that there were not here those “very exceptional circumstances” that could have justified a departure from policy, but merely point out that my conclusion is at any rate consistent with the subsequent decisions of the AIT to grant AM bail and of the FTT to allow her asylum appeal.

These were the reasons for which I therefore concluded at the hearing of this appeal that the Secretary was in breach of her policy and liable for the tort of false imprisonment of AM. We announced our decision at that time, and also our decision that liability commenced as from 24 October 2008, since we allowed two weeks for the Secretary of State to consider her position in the light of the new developments. We directed that both parties have liberty to restore the matter before a master of the Queen’s Bench Division in order to resolve any issue of damages that they should be unable to agree.

I agree.

I also agree.