BA (Eritrea) & Anor, R (on the application of) v Secretary of State for the Home Department

The claimant, BA, is an Eritrean national born on 19 July 1983. She claims she was living in Ethiopia with her father when they were deported to Eritrea during the border conflict in 1998 when she was 15 years old. She said that they were detained and her father was killed in detention. She was regularly slapped and kicked and was raped on one occasion. She was released after a month and fled via Ethiopia to Lebanon and later via Turkey to Greece. She was never fingerprinted in Greece but was fingerprinted in Italy on 6 September 2013 when she spent five days there en route to the UK.

She arrived in the UK in the back of a lorry on 17 October 2013. She was arrested and detained by police and claimed asylum immediately.

Italy accepted responsibility for the claimant’s asylum claim under Dublin II on 7 November 2013. In view of this the appellant refused the claimant’s asylum claim and certified it on third country grounds on 8 November 2013. She set removal direction on 15 November 2013 to take effect on 25 November 2013. These were deferred until further notice on 21 November 2013 on the grounds that the claimant was unfit to fly.

A Rule 35 report was prepared by Dr Hayes on 19 October 2013. In it Dr Hayes ticked the box which states:

“I have concerns that this detainee may been the victim of torture”.

In the section of the form where he was required to set out the clinical reasons for his conclusion he essentially repeated the applicant’s own account of her treatment in prison in 1998 but added that “she does not have any scars to document.”

The appellant Secretary of State responded to the Rule 35 report in a letter dated 22 October 2013 and stated that she did not accept the report as independent evidence of torture; it was no more than a record of her claim. The practitioner had not expressed his own reasoned concern that she was a torture victim.

The claimant filed her judicial review claim on 22 November 2013. She sought to challenge the decision to certify the claimant’s asylum claim and the subsequent removal directions 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.

On 9 December 2013 the claimant’s request for temporary release was refused on the grounds that the appellant did not believe her claims of torture and that she presented a risk of absconding. The Secretary of State maintained her decision to refuse asylum and to certify BA’s claim.

The claimant was released from detention on 17 January 2014 on being granted bail by a judge of the First Tier Tribunal.

Permission to apply for judicial review was first refused on the papers by Michael Kent QC on 29 January 2014 but was then granted by Upper Tribunal Judge Gill sitting as a Deputy High Court Judge at an oral renewal hearing on 17 June 2014. At this stage the claimant had withdrawn grounds (i) and (ii) of her judicial review claim on the Secretary of State’s agreement to reconsider her decisions of 21 November and 17 December. So the only live issue was whether the claimant’s detention was unlawful.

BA advanced a number of arguments asserting that it was. First, she said that it was unlawful as from 23 October until her release on 17 January, because she should have been released as a result of the Rule 35 report which, she asserted, amounted to independent evidence of torture. The second and third submissions focused on the reasonableness of the detention on the premise that there was no independent evidence of torture. The second was that continuing detention was in any event unlawful as from 22 November or shortly thereafter, when removal directions were deferred and the judicial review proceedings were lodged; and the third asserted that it was unlawful from 9 December when the applicant was refused temporary release without, it is alleged, being given any adequate or lawful reason. In each case it was asserted was there was no proper consideration of the relevant factors bearing upon detention or release and that had there been, the only proper conclusion would have been that BA should be temporarily released pending removal to Italy.

In a judgment handed down on the 12 December 2014 HH Judge Mckenna QC found in favour of BA on all grounds. However, the first secured the longest period of unlawful detention, and so he considered the other submissions relatively briefly.

As to the Rule 35 issue, he rejected the contention that the Rule 35 report in this case was not independent evidence of torture and he further concluded that there were no exceptional circumstances which justified detaining the claimant. There was no more than a generic risk of absconding and no request had even been made to request the Italian authorities to accept the claimant. So the claimant had been wrongly detained from 23 October.

The judge summarised his reasons for concluding that the Rule 35 report constituted independent evidence of torture as follows:

“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.”

The judge then considered and rejected the submission that there were exceptional circumstances justifying the detention.

The judge found in the alternative that no lawful decision to detain could have been made after 22 November 2013 when the judicial review claim had been lodged and removal directions had been deferred (paras. 27-30):

“By 22^nd 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.

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 17^th January 2014. Thus there were detention reviews on 5^th December 2013 (page 205 and following) and on 2^nd January 2014 (page 213 and following) and in between the application for temporary release which was refused as I have recorded on 9^th December 2013 in the terms of the letter which appears at pages 64 and 65.

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.

It follows in my judgment that a lawful decision to detain could not have been made after 22^nd 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.”

Given that the primary argument succeeded, the judge granted the claimant a declaration that her detention was unlawful between 23 October 2013 and 17 January 2014. Her claim for damages for false imprisonment was transferred to the Central London County Court for the assessment.

The Secretary of State submits that the judge erred in finding any unlawful detention at all. First, the judge was not entitled to find, contrary to the view of the Secretary of State, that the Rule 35 report was independent evidence of torture. Second, the judge did not give adequate reasons for the alternative conclusion that in any event detention was unreasonable once the application for judicial review had been lodged on 22 November.

In my judgment, the judge did err in treating the Rule 35 report as independent evidence of torture. There was no more than a recitation of the claimant’s account of torture. For reasons I have given (see paras. 30-33 above), that does not amount to independent evidence. The fact that a doctor does not find the account lacking in credibility is not enough. That is what the guidance says and I believe it to be correct.

Accordingly, the judge was wrong to hold that the Rule 35 report was independent evidence of torture. In my view that was not a decision he could have reached even were it his task to consider the matter afresh. A fortiori he could not say that the Secretary of State had erred on public law grounds in holding that the report was not independent evidence of torture.

The challenge to the judge’s alternative finding was stated in the ground of appeal to be a reasons challenge. This was advanced before us in two ways. First, it is said that there was an ambiguity in the judge’s observation in para. 27 that “it was plainly foreseeable that there was no prospect of the claimant being removed in the near future”.Mr Dunlop, counsel for the Secretary of State, says that this could mean either that there was no prospect of removal within the near future; or that it was foreseeable that removal would take a long time. I do not agree. In my view the words plainly mean that the Secretary of State ought to have appreciated that there was no prospect of removal in the near future. There is no ambiguity.

The other submission is that, contrary to the finding of the judge, there was evidence from which the Secretary of State could properly form the view that removal would take place in the near future. There was the possibility of expedition which, again contrary to the understanding of the judge, was in fact considered by the Secretary of State. If expedition had been granted and the claim had been rejected, removal could have taken place in a matter of weeks, thereby honouring the Hardial Singh principles. Mr Dunlop accepts that there was a Supreme Court case pending which raised the issue whether removal to Italy would be a breach of Article 3, but he submitted that it did not follow that there could be no removal pending the determination of that appeal: see AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ.921.

In my view, this latter challenge goes beyond a reasons challenge; it is alleging that on the material before the judge he could not have properly reached the conclusion he did. In my view, the argument is not sustainable. Even if removal could in principle be effected before the decision of the Supreme Court, an attempt to do so would almost certainly have resulted in an application to the courts with further inevitable delay.

Furthermore, one of the factors weighing with the judge was the fact that the claimant was unfit to fly. That was an independent reason why removal within a reasonable time could not realistically take place. The fact that there was no evidence of absconding reinforced the justification for requiring release from detention. I therefore reject this ground of appeal.

Accordingly, I would uphold the Secretary of State’s appeal in so far as it relates to the finding that detention was unlawful from 23 October because she had received independent evidence of torture, but I would dismiss the alternative argument. Damages should therefore now be assessed on the assumption that the detention was unlawful from 22 November, as the judge found.

The appellant is a national of Sri Lanka and was born on 15 April 1991. She is of Tamil ethnicity. She arrived in the UK lawfully on 8 November 2011 on a Tier 4 (General) Student Visa valid until 3 November 2012. On 3 November 2012 she applied for an extension of stay but this was refused on 13 March 2013.

She then claimed asylum on 26 June 2013 on the basis that she would be at risk of torture due to her political opinion if returned to Sri Lanka. She asserted she had been arrested by the army in 2010 for a period of 15 days in connection with her brother’s involvement with the Liberation Tigers of Tamil Eelam (LTTE) and had been tortured whilst in detention. She asserts that she was sexually assaulted twice and the guard who assaulted her videoed both assaults on his phone. She was slapped, punched in the breast, cut on the breast and her leg was burnt with a cigarette. [LT2/57/j]

Her asylum claim was refused on 14 July 2013 following an interview. [ST2/54] Essentially her story was disbelieved. It was not accepted that she was wanted by Sri Lankan authorities, that she was arrested and detained by the army and would be at risk upon return.

The appellant appealed to the First Tier Tribunal and relied upon two medico-legal reports. The first was a report by Dr S E Josse dated 9 August 2013. In the report he confirms that some scars are consistent with her account of cigarette burns, knife cuts and trauma from a blunt object. The second was a psychiatric report by Dr Nadir Omara dated 4 October 2013.

Her appeal was dismissed by Judge Bryant of the First Tier Tribunal on 23 October 2013. He considered that her account of being tortured in Sri Lanka was not credible and he rejected medical evidence supporting her claim on the basis of shortcomings in the reports: the medical evidence was not sufficiently consistent with the appellant’s account (for example she asserted that she had suffered cigarette burns on her back but there was no evidence of this) and Dr Josse had not explored the causation of scarring by considering the likelihood of other causes. The judge said at [68]:

“Whilst I fully take into account the evidence of the medical and psychiatric reports on the appellant and the evidence of the appellant’s brother, I find the appellant to lack credibility to the extent that I do not believe her account of her history in Sri Lanka. I do not find that she proves, even to the low standard required, that she was ever detained, ill-treated, sexually abused or raped by the authorities or members of the security forces in Sri Lanka and that she fled Sri Lanka through fear of persecution.”

The appellant appealed the FTT decision to the Upper Tribunal. Her appeal was dismissed by Upper Tribunal Judge Reeds on 4 February 2014. The report by Dr Josse was found not to conform with the guidance in the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) (at [40]). The judge concluded that having considered the FTT judge’s treatment of the medical evidence, he did not find that the judge’s approach to that evidence was flawed.

The appellant was detained by immigration authorities on 6 May 2014 pending removal. She was examined by a Dr Ali who produced a Rule 35 report on 11 May 2014. He ticked the box that the appellant ‘may have been a victim of torture’ and also another box stating that continuing detention was likely adversely to affect her health. The doctor added the following observations:

“Was arrested and detained by army and taken to a camp. Interrogated by army officers. Accused of helping another political group. Was beaten and raped by army officer while another officer recorded it on a mobile phone, Hands tied behind back, knife used to cut area around axilla. Cigarette burns to legs. Beaten. Raped. Very tearful and distressed while recounting events. Incidents occurred when arrested in 2010, came to the UK in 2011, On Fluoxetine and Temazepam – been under care of GP for last 4 years. Depression and anxiety symptoms since incidents in Sri Lanka. Significantly affected her mental state. Suffers with insomnia, anxiety, nightmares, flashbacks. PTSD symptoms.”

The appellant submitted that this was independent evidence of torture but the Secretary of State rejected this submission. She summarised her reasons as follows:

“I note that you previously raised these allegations of torture when you sought asylum in the United Kingdom on 26/06/2013. Your asylum claim was substantively considered and was refused on 14/07/2013. You appealed against the refusal of your claim for asylum and your claim was further considered by an Immigration Judge. Your appeal was dismissed on 28/10/2013 and you exhausted your appeal rights on 24/02/2014.

Additionally, although the Medical Practitioner who complied the report states that they have concerns that you may have been a victim of torture. It is not considered that the report in itself amounts to independent evidence of torture and you have provided no independent corroborative evidence to support the claims.

Given that your asylum claim has been considered substantively in the UK and considered by an immigration Judge, I am satisfied that your continued detention remains appropriate pending your removal from the United Kingdom.”

In my judgment, the word “additionally” strongly indicates that the Secretary of State intended to refer to two distinct grounds: both that the report was not independent evidence of torture, and that in any event that the asylum claim had been considered already. The latter observation, whilst not spelling it out, suggests that the Secretary of State considered that the exceptional circumstances justification was established.

On 12 May 2014 removal directions were set for 18 May 2014.

The appellant made further submissions in two letters dated 13 May 2014. The first purported to provide further information, including further evidence about her father and a further letter from the doctor. The second letter stated that she had been accepted for pre-assessment by The Helen Bamber Foundation to be carried out on 4 December 2014.

On 17 May 2014 the respondent refused the further submissions and decided that they did not amount to a fresh claim for asylum. On the 18 May Nicol J issued an order preventing the appellant’s removal but at that point she remained in detention. On 19 May 2014 the appellant issued her claim for judicial review and on 21 May 2014 she was served with an IS.96, a notice of temporary admission, and was granted temporary release from detention.

Her application to apply for judicial review was first refused on the papers by HHJ Allan Gore QC on 1 August 2014 but was granted permission on oral renewal by UT Judge Grubb sitting as a Deputy High Court Judge on 30 September 2014.

The appellant advanced two reasons why her detention became unlawful. The first was that the respondent had wrongly refused to accept the Rule 35 report as independent evidence of torture. It should have been so characterised, and had it been, the general policy would have been applied and the appellant would have been released pending removal. The detention was therefore unlawful from the date the Secretary of State rejected this submission on the 11 May.

In the alternative, it was alleged that in accordance with the Secretary of State’s own policy the appellant should have been released as soon as the Secretary of State had received notification that ST had been accepted for a pre-assessment by The Helen Bamber Foundation.

The relevant policy is entitled “Asylum Policy Instruction: Medico-Legal Reports from The Helen Bamber Foundation and The Medical Foundation Medico-Legal Report Service”. It explains how caseworkers should process and consider asylum claims involving allegations of torture where a medico-legal report from these Foundations constitutes part of the evidence. Paras.2.3 and 2.4 explain when a reference to the Foundation would lead to a suspension of the substantive decision:

“Once the applicant has been referred to one of the Foundations, from whatever source, for an MLR, the referral is assessed by the Foundation and, on the basis of the information contained in it; a decision will be made to:

•

Reject the request without an appointment or;

•

Invite the applicant to attend a “pre-assessment” interview; or

•

Move directly to an appointment with a clinician.

Although this varies between the Foundations, only approximately 30 per cent of applications are accepted for pre-assessment. The decision not to invite an applicant for an assessment does not necessarily reflect upon the applicant's credibility.

When the caseworker is informed in writing by the applicant's legal representative that the case has been accepted for a pre-assessment appointment, they should normally suspend the substantive decision if they are not minded to grant any leave (see section 2.8 below) …

However, there may be cases where the applicant's account of events, including incidents of torture, is accepted but this does not give rise to a need for international protection where, for example, the country situation has changed or there is sufficiency of protection. In such cases the caseworker may proceed to decision without waiting for the MLR but should first contact the legal representatives and give them an opportunity to provide representations as to why the decision should be suspended to wait for the MLR.”

The appellant submitted that in accordance with para 2.4 there should have been no decision on the merits of her case until a report from the Foundation was available. The policy itself says nothing about release from detention, but given the inevitable delay before that could be achieved, the proper application of the Hardial Singh principles required that she should be released. There was no reason to suspect that she would abscond.

The Secretary of State did not accept that this policy related to a consideration of further submissions; she claimed that it only applied to initial considerations of asylum. It would be impractical and lead to abuse were it otherwise. Applications would be made to the Foundations for delaying purposes. Furthermore, the policy is not automatically applied in all cases – it merely says that suspension normally follows - and this was a situation where even if the policy were applicable, it was legitimate to keep the applicant in detention.

The judge, Professor Elisabeth Cooke, sitting as a Deputy High Court Judge, rejected the Rule 35 argument. She held that the Secretary of State was entitled to conclude that the Rule 35 report was not independent evidence of torture. It therefore created no presumption that she ought to be released pending removal and the continuing detention was not in breach of the policy set out in Chapter 56.10. She explained her reasons for reaching this conclusion as follows:

“I accept that independent evidence is not the same as proof; that the value of a medical report as independent evidence is not affected by the Claimant’s credibility; that it does not matter that the Rule 35 Report in this case was not a detailed report written for a court. Nor does it matter that the Rule 35 Report uses the words “may have been tortured” rather than stating that the Claimant's injuries were caused by torture or could only have been caused by torture or “would normally only arise as a result of torture” (to use the words of the Defendant's policy).

The difficulty that stands in the Claimant’s way is, as Mr Murray put it, the context in which the Report was made. It was undoubtedly independent, and was undoubtedly evidence, but it did not constitute independent evidence of torture because it added nothing to the picture. It referred to no injury that had not been described by Dr Josse and it did not add to Dr Josse’s description. It told the Defendant nothing that had not already been known and explored. The Defendant already knew that the Claimant had scars that were consistent with cigarette burns and with being cut. Alarm bells did not ring on this occasion because they had already been rung, in the asylum proceedings, and had been dismissed; the asylum claim based on this evidence, and indeed on more detailed evidence than this, had been explored very recently by the Tribunal, it had been rejected and appeal rights were exhausted.”

Having reached this conclusion, the judge did not consider whether, if the report had been evidence of torture, there were exceptional circumstances justifying detention arising from the earlier rejection of her asylum claim. The judge might simply have thought it unnecessary to engage with that question given that on her analysis the policy did not apply. In fact it seems that the issue was not before her. We were informed that this argument was not advanced before the judge notwithstanding that, for reasons I have given (para. 79) this appears, on an objective reading of the Secretary of State’s letter, to have been one of the reasons for refusing to release ST from detention. The only argument advanced on Rule 35 was that there was no independent evidence of torture.

However, the alternative ground relied upon by the appellant succeeded. The judge concluded that the policy on medico-legal reports from the Foundations was applicable to further submissions in the same way as to initial determinations. She recognised the possibility of abuse but was not convinced that this justified limiting the scope of the policy. She expressed her conclusions on this aspect of the case as follows (paras.28-31):

“28.

The Defendant argues first that the policy was applicable only to initial applications for asylum. Yet it does not say so and one would not understand that from its language. Mr Murray said that this was a matter of logic and reflects the need for finality; it would be impracticable to allow claimants to continue to have fresh applications held up by the need to await a report from either of the foundations. If the policy applied to further submissions it would provide a method of routinely frustrating removal.

29.

That is not an argument from logic, but it is indeed about the wish for finality; it is an argument from convenience and practicality, motivated by the wish not to clog up the system with applicants seeking to delay removal.

30.

But that is not a realistic concern, or at least not one which ought to outweigh the pursuit of the objectives behind the policy. For one thing, it will not happen in many cases; one would normally expect that an application to one of the foundations would be made along with an initial claim for asylum. For another, no case will be delayed more than once on this basis. Set against that is the objective, referred to in paragraph 24 above, that a report from one of the foundations be properly considered and given appropriate weight. Suspending a decision on further submissions in order to wait for a foundation report may enable some applicants to play the system. But it will bring expertise to bear on the case, which may reveal something that has been overlooked or wrongly discounted earlier in the process, perhaps where a claimant has been let down by expert witnesses who had not wholly understood her situation, and in some cases that may make all the difference. It is not known into which category this case falls. It makes sense that the Secretary of State's policy should encompass further submissions, even if that means that a few unmeritorious cases will be delayed.

31.

Mr Jafferji pointed out that in ZO (Somalia)[2010] UKSC 36 the Supreme Court considered the scope of the Reception Directive (Council Directive 2003/9/EC), which protects the living standards of asylum seekers in the European Union. The Supreme Court held that the term “application for asylum” applied not only to initial claims but also to further submissions, and was unimpressed by the argument that to extend the protection of the Directive to asylum seekers making further submissions would clog up the system (see in particular Lord Kerr at paragraph 31). That is of course a decision about the construction of that directive, but the reasoning is helpful here.”

Later in the judgment she made this further observation why the policy should not be limited to initial decisions only (para.34):

“The objective of the policy is that the views of the Foundations should be available to the Secretary of State when she makes substantive decisions, and that objective would be frustrated by a blanket rule that the policy is irrelevant to Further Submissions.”

The judge also rejected the submission that because the suspension of the decision was not automatic, there was no breach of the policy. She said that the purpose of the policy would be frustrated if the caseworker could in effect pre-empt the decision of the Foundation.

The judge went on to consider when, on this analysis, the detention became unlawful. She held that it was from 17 May, when the decision was taken on whether or not to accept the fresh submissions which had also been sent on 13 May. The judge did not accept that it was realistic to argue that detention was unlawful from the moment that the letter from The Helen Bamber Foundation was received. So the period of unlawful detention on this analysis was between 17 May and 21 May, when the applicant was released.

The appellant advances two grounds of appeal. First, the judge erred in law in holding that the Rule 35 report did not constitute independent evidence of torture. It was an error for the judge to find that it was necessary for the report to “add something to the picture”, to use her language. It does not need to reveal something new. It is enough that it adds something to the account of torture given by the applicant. The fact that there has been a tribunal finding rejecting the applicant’s account of torture is not relevant when deciding whether the Rule 35 report is independent evidence of torture, although it might constitute special circumstances which would justify continuing detention notwithstanding that evidence (as indeed the guidance states).

The alternative submission is that the judge erred in limiting the period of unlawful detention to four days only, from 17 May to 21 May. It was not reasonable to keep the applicant in detention once the Secretary of State had been informed on 13 May that there was to be an assessment by The Helen Bamber Foundation. She should have been released immediately.

The Secretary of State has put in a respondent’s notice with respect to the first ground, asserting that even if the report did constitute evidence of torture, there was good reason to depart from the presumption that detention would be inappropriate, namely a finding by the First Tier Tribunal, upheld on appeal, that ST had not been tortured. She also seeks to challenge the judge’s interpretation of The Helen Bamber policy, renewing the argument which the judge rejected, namely that the policy only applied to the initial asylum decision.

I agree with the appellant that the Rule 35 report in this case did constitute independent evidence of torture. It confirmed that unusual scars found on the body, frequently the result of torture, were indeed consistent with the applicant’s account of torture. An experienced doctor therefore confirmed that there was a causal connection between the account of torture and the visible scars. The obvious distress of the applicant when recounting her experiences further lent support to her account. For reasons I have already given (see para. 41 above) it does not affect the status of the Rule 35 report that an independent tribunal has found the appellant to lack credibility after considering similar medical evidence. In my view, this Rule 35 report was plainly independent evidence of torture. Had the report been provided before a court or tribunal, it would be impossible to contend that it was not potentially cogent evidence of torture.

Again, as I have explained above (para. 42), and as the appellant accepts, the fact that her account of torture had been rejected by the FTT may be highly relevant, and possibly decisive, when considering at the second stage whether there are special circumstances justifying detention notwithstanding the evidence of torture. But that does not affect the status of the Rule 35 report as evidence of torture.

The Secretary of State seeks by the respondent’s notice to argue that it would, but I do not consider that she should now be permitted to advance that argument. Although objectively construing her reasons for refusing release, I think she did rely upon the exceptional circumstances to justify detention on the basis that a tribunal had rejected the appellant’s claim that she had been tortured, that defence was not relied upon before the judge below. The Secretary of State relied only upon the argument that there was no independent evidence of torture. That was an error of law which was instrumental in the decision not to release the appellant, and therefore, following Lumba, it renders the detention itself unlawful.

However, it will be open to the Secretary of State to argue at the damages hearing that she could and would have detained the appellant because of these special circumstances and thereby seek to deny any right to anything other than nominal damages. That is the appropriate forum for this issue to be advanced. I accept that were it inevitable that the Secretary of State would succeed in this submission, it would be desirable for this court to say so now. But Mr Jafferji, counsel for ST, has marshalled certain arguments he would wish to advance as to why the FTT had not taken into account all the relevant material referred to in the Rule 35 report. He also correctly points out that it is always ultimately a matter of discretion whether to rely upon exceptional circumstances, and the court should not assume without evidence that the Secretary of State would inevitably have exercised her discretion to require the appellant to remain in detention. For these reasons, I do not think it right for this court to anticipate what the outcome of the damages claim might be.

The judge did not determine when, if she had found that there was independent evidence of torture, the appellant ought to have been released. There would no doubt be some period during which the Secretary of State would need to consider whether detention should be maintained, notwithstanding the evidence of torture, perhaps relying upon the exceptional circumstances provision. I would leave this matter for the court to decide as part of the damages exercise. It would be able to hear additional evidence on the question if that were thought appropriate.

Given the finding that the detention was unlawful independently of the application of the Foundation policy, it may be thought that this is no longer a live issue. The detention was unlawful whether or not the Foundation policy applied. However, the issue could still be material if the court were to decide that damages arising from the Rule 35 error should be nominal on the grounds that the appellant would have been lawfully detained in any event.

However, Mr Jafferji submitted that for other reasons there is no continuing purpose in deciding this issue. First, the Secretary of State has now paid damages for the unlawful detention for the period 17-21 May on the premise that she did act unlawfully in not waiting for the result of the pre-assessment. Second, the further submissions policy has now been altered with a new section 3.7 being inserted that makes it clear that each case must be considered on its own facts. For the future, therefore, matters have been clarified. I agree that nothing of any real significance now turns of the question whether the Foundation’s policy applies to new submissions or not, so I will deal with the issue relatively briefly.

In essence, I agree with the analysis of the judge. There are cogent policy reasons why the policy would apply to fresh submissions; the potential for abuse is limited for the reasons the judge gave; and there was at the time no express limitation of the policy to initial asylum determinations only. It is not obvious why a policy which applies to asylum claims ought not to apply to renewed claims based on fresh submissions, and as the judge pointed out, that is how the Supreme Court construed the term in an admittedly different context in ZO (Somalia) v Secretary of State for the Home Department [2010] UKSC 36.

Counsel submitted, and I accept, that it is highly relevant that these two Foundations have a special standing in the immigration and asylum field, and once someone is accepted for pre-assessment, there is a real possibility that the medico-legal report will disclose torture. (That is indeed what happened here when the full report was obtained.) This is not simply a case where a failed asylum seeker indicates an intention to obtain a fresh medical report. Very different considerations would apply in such a case. I would uphold the judge’s analysis of the application of this policy.

The final point raised by the appellant is that the judge was wrong to allow the Secretary of State some three days grace once it had become clear that The Helen Bamber Foundation had decided to carry out a pre-assessment with respect to her claim of torture. It is submitted that it was unreasonable within Hardial Singh principles to fail to release her within 24 hours because it was obvious that she could not be removed in the near future. So the illegal detention should have been from 14 May rather than 17 May.

I do not accept that submission. As Sedley LJ said in Secretary of State for the Home Department v Abdi [2011] EWCA Civ 242, para. 62:

“The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge's decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.”

Here the judge thought that the Secretary of State could reasonably take a few days. In my judgment, that was a wholly sustainable decision. There are still steps to take even once the information is provided. For example, the Secretary of State can reasonably take advice as to whether the policy does apply in the circumstances of fresh submissions. Moreover, the release is not automatic and requires an exercise of discretion. And it may be necessary to set up, or at least consider whether to set up, arrangements to ensure effective monitoring of the individual before being released. A few days for an extremely pressed department to decide how to react to the information is not unreasonable. At any rate, I do not think it can conceivably be said that the judge erred in law in concluding that this was a reasonable period. I would therefore dismiss this ground of appeal.

For reasons I have given, I would uphold in part the appeal by the Secretary of State in the BA case. I would hold that the judge was not entitled to find that the Rule 35 report was evidence of torture. The heightened presumption of liberty did not arise. But contrary to the submissions of the Secretary of State, the judge was entitled to conclude that the detention was unlawful under Hardial Singh principles from 22 November. Damages will have to be assessed if they cannot be agreed.

I would also uphold in part ST’s appeal. The judge was not, in my judgment, entitled to find that the Rule 35 report did not constitute independent evidence of torture. The case will have to be remitted for damages unless they can be agreed. The Secretary of State will be entitled to argue in that exercise that there were exceptional circumstances which would have led to the applicant being detained in any event, in which case no loss would have been suffered. If there was any loss on the basis that the applicant should have been released, the judge will have to consider from what point the detention became unlawful.

However, I find, contrary to the submissions of the Secretary of State, that the judge was entitled to conclude that the detention should have been brought to an end in accordance with her own policy once she was informed that The Helen Bamber Foundation had agreed to carry out a pre-assessment. The judge was also entitled to hold, contrary to the submissions of ST, that on that basis the detention became unlawful on 17 May.

I agree.

I also agree.