Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
ANNE WHYTE QC
(sitting as a Deputy Judge of the High Court)
Between :
R (on the application of YA) | Claimant |
- and - | |
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
Raza Halim (instructed by Duncan Lewis) for the Claimant
Lisa Busch QC (instructed by the Government Legal Department) for the Defendant
Hearing date: 25 July 2017
Judgment
Anne Whyte QC :
The Claimant has the benefit of anonymity and will be referred to as YA.
Introduction
This is a claim for damages for unlawful detention made in respect of the Claimant’s detention in the Detained Fast Track (“the DFT”) from 10 January 2015 until 28 January 2015. The Claim Form is dated 26 January 2015. The Claimant alleges that in the circumstances of his case, there were five respects in which the operation of the DFT was unlawful and that taken individually or cumulatively this led to a period of unlawful detention. The Claimant alleges that the entire period of detention from 10 to 28 January 2015 was unlawful. There are three separate periods which are alleged, for different reasons, to have been unlawful. I shall deal with them in reverse order to that used in the Claimant’s pleadings:
10 January to 28 January 2015 (referred to as “Period 3”) – alleged to be unlawful for various reasons including what is referred to as “the outcome” in JM & Ors v SSHD [2015] EWHC 2331;
19 January to 28 January 2015 (referred to as “Period 2) - alleged to be unlawful on the basis that the Defendant ought to have appreciated during the Claimant’s incomplete substantive asylum interview on 19 January that his case was too complex to be dealt with under the DFT;
22 January to 28 January 2015 (referred to as “Period 1”) – alleged to be unlawful on the basis that the Claimant ought, in the alternative, to have been released within a day of the Defendant’s notification by letter that the Helen Bamber Foundation (“the HBF”) considered that his case merited further clinical investigation.
Ouseley J examined, at length, the operation and lawfulness of the DFT in Detention Action v SSHD [2014] EWHC 2245 (Admin). After that, there was a further challenge involving Claimants detained in the DFT, in R (JM and Ors) v SSHD [2015] 2331 (Admin). This was test case litigation, advanced by four lead Claimants to which this Claimant was linked. The litigation was resolved by a Consent Order made by Blake J to which I shall refer below. Cranston J provided a summary of the litigation relating to the DFT at paragraphs 16 to 32 of his judgment in Hossain and Ors v SSHD [2016] EWHC 1331 (Admin). It will be necessary to re-visit that litigation history further in this judgment. Much of that litigation involved general claims about the lawfulness of the DFT system. This claim concerns the application of the Consent Order in JM to the facts of the Claimant’s case and the way in which the DFT operated in his individual case.
Background Facts
The Claimant is a national of Chad. He entered the UK illegally via Italy and France in July 2013 (having previously entered the UK illegally in 2012 and been removed to Italy under the Dublin II Regulation). His status in 2013 was the subject of earlier judicial review proceedings which were subsequently resolved when the Defendant agreed that his asylum claim should be considered in the UK. The Claimant was released from detention on 30 October 2013 with conditions of release and he then attended an asylum screening interview on 18 November 2013. In that interview he referred to an incident when he was hit on the head with an assault rifle which caused occasional dizzy spells in respect of which he had not sought any medical attention. He referred to the fact that his house in Chad was raided and that he was struck to his back and head and that he had been imprisoned in Libya. He did not mention or allege that torture had occurred whilst he was in prison in Libya and he stated that from a medical point of view, he was “fine”.
There is no suggestion that he failed to comply with his conditions after he was released in 2013.
On Saturday 10 January 2015 he was arrested for common assault. Up until that date nothing further appears to have occurred in respect of his asylum application, despite the Defendant’s knowledge of his two previous illegal entries. It was decided on the same date that no further action would occur as a result of his arrest and he was referred to the Immigration Service. On the same day, an Immigration Officer decided that the Claimant’s application could be decided quickly using the DFT. At the material time this was the policy for the detention of some asylum seekers, while their claims for asylum (and any subsequent appeal) were decided. They were detained on the basis that their cases could be determined quickly. The policy has been the subject of significant litigation. I have not been provided by the Defendant with any witness evidence explaining the allocation of the Claimant on 10 January 2015 to the DFT but the GCID Case Record Sheet for 10 January 2015 records:
“The subject has been detained for the following reasons: There is insufficient reliable information to decide whether or not to grant them temporary admission or release. The subject does not have enough close ties (eg family or friends) to make it likely that they will stay in one place. The subject has failed to provide satisfactory evidence on their identity, nationality or lawful basis to be in the UK. The subject is a removable nationality (sic) and is eligible for DFT. Detention is authorised in accordance with Paragraph 16(2) Sch 2 of the Immigration Act. The subject is imminently removable with the appropriate documentation. This detention is granted and subject to review in the first instance at 24 hours from the original time of detention.”
The case notes went on to record:
“Sub has an outstanding asylum claim but could be suitable for DFT. NAAU have asked the Team to detain the subject so that screening can be completed….Initially the subject was a Eurodac match to Italy but became a TCU dropout. Subject didn’t claim asylum while this was a TCU case. Since then, subject has claimed asylum. A screening wasn’t conducted then. Therefore a screening is required in order to consider DFT action. Please fax a copy of this once completed to NAAU.”
In alleging unlawful allocation to and retention within the DFT, the Claimant relies upon the fact that notwithstanding these entries, he did not in fact undergo the screening which the Immigration Officer had indicated was required, a submission that I shall deal with later in this judgment. Miss Busch QC, on behalf of the Defendant, suggested that the entry referred to above must have been made in error because screening had occurred much earlier on 18 November 2013. Certainly, on one view, the officer appears to have noted that screening was required because it had not occurred previously but he or she also noted that screening was required because the NAAU (National Asylum Allocation Unit) had asked for the applicant to be detained and consideration needed to be given to his suitability for entry onto the DFT. The Defendant has not provided any evidence as to why no further screening occurred or was necessary in January 2015.
The Claimant was allocated lawyers on Monday 12 January 2015, the first working day after the decision to use the DFT but for reasons which were not explained they did not see him until 17 January. During a DFT Induction Interview on 12 January 2015, the interviewing officer noted that there were no other factors known about the case that rendered it unsuitable for the DFT process although I have been provided with no evidence as to how that conclusion was reached. It was noted that the Claimant was a single male with no family in the UK in general good health, who had a poor immigration history. He was inducted into the DFT. The relevant officer noted that apart from the reference to occasional dizzy spells having been hit some years before on the head, there was no indication that the Claimant’s medical condition could not be managed in a detained environment. I have not seen any medical evidence which contradicts that assessment.
The interview on 12 January 2015 was not a screening interview and there is no suggestion from the Defendant that any screening process or re-screening process occurred in January 2015.
During a review of his detention on 16 January, the previous recommendation of ongoing detention and use of the DFT was repeated. On 17 January 2015 the Claimant met with his lawyers, Duncan Lewis Solicitors. That firm had previously represented him in his earlier judicial review litigation in 2013 and provided the Lead Representation in the JM litigation. On 19 January 2015, the Claimant’s substantive interview commenced but was not completed, apparently because of “the complex nature of the claim/country”, the reference to “country” being a reference to Chad. During that interview, he referred to torture which he alleged had occurred whilst he was detained in Libya in 2010. As a result, his solicitors wrote to the Defendant on 20 January 2015. They referred to his allegations of torture and requested that a Rule 35 Report be conducted immediately. I note, at this stage, that although I was not referred to it in submissions by either counsel, a medical “scarring” report dated 5 March 2015 by a Dr Abbas Lohawala was contained within the papers. He concluded that it was highly likely that the scarring on the Claimant’s body was the result of torture and he considered that they were consistent with the account provided by the Claimant. This report was not before the decision maker but is relevant to the question of what a Rule 34 medical examination might have identified or whether a Rule 35 Report ought to have resulted. The Claimant had visible scarring to his legs, left elbow, soles of his feet and face. He also had a scar on his head.
On 21 January 2015, the Claimant’s solicitors wrote again to the Defendant setting out in detail the alleged facts underlying his claim of torture. They notified the Defendant that they had sought a Rule 35 report, that they had referred the Claimant to the HBF and they enclosed a letter from the HBF dated 21 January 2015. That letter cited paragraph 2.11 of the Asylum Policy Instruction January 2014, to which I will return. It informed the Defendant that the Claimant’s circumstances appeared to fall within the HBF’s area of expertise and to meet their referral criteria. It referred to the Home Office’s awareness of the HBF’s lack of capacity due to the high number of referrals and indicated that the Claimant’s case was appropriate for further clinical investigation. The author explained that the HBF was unable to offer a specified pre-assessment appointment due to the ongoing capacity issues and advised the Defendant to remove the Claimant from the DFT whilst the necessary clinical investigation took place.
No Rule 35 Report was prepared.
The Claimant’s substantive asylum interview was re-commenced on 22 January 2015 and completed that day at 17:00pm. A deadline for any further representations was set for 16:00pm on 23 January 2015. The interviewing officer noted that the case and potential release from the DFT had been discussed with a Senior Executive Officer and that a decision would be made the following day when further information about timescales was due to be available. It was anticipated that a final decision about asylum would be made by 26 January 2015.
On 22 January 2015, the Claimant’s solicitor wrote again requesting his release from the DFT whilst the claims of torture were investigated and medical evidence obtained. The Defendant responded by letter on 23 January 2015 and declined to remove the Claimant’s case from the DFT. She based her decision on three factors essentially – first, the HBF had not been able to offer an actual pre-assessment appointment date which the Defendant considered to be contrary to the operating Asylum Policy Instruction, second - the Claimant had provided no other evidence in support of his claim of torture and third - none of the exclusion criteria applied to him.
On 26 January 2015, some 16 days after the Claimant’s allocation to the DFT, the Claimant’s detention was reviewed and continued. On the same day, the Defendant refused him asylum. The Review Summary recorded:
“The representatives have submitted a letter from the HBF regarding a referral however no pre-assessment date has been given. Therefore, in line with the updated guidance on referrals to HBF, this has been considered along with all other evidence submitted with the application … Consideration has been given to Section 55 of the EIG. The applicant is a single male with no dependents in the UK. He has no known medical issues which would make him unsuitable for detention and he is not currently taking any medication. Although it is noted that he has previously reported, consideration has been given to his poor immigration history. He has employed deception, using two different identities. He has sought to deceive the Home Office by claiming to be a minor on arrival into the UK and has then been assessed to be an adult. Having been previously removed from the UK in 2012, he has returned clandestinely. In light of this, detention is considered appropriate under general detention criteria.”
On 26 January 2015, the Claimant filed his claim for judicial review and interim relief.
Interim relief was granted by Carr J on 26 January 2015 who suspended the processing of the Claimant’s application for asylum under the DFT until consideration of the application for permission. Permission to claim judicial review was granted on the papers on 3 March 2015 by Singh J who ordered that the suspension should continue until the substantive hearing of the claim or further order. The Claimant’s case was stayed, as were other similar cases, pending the determination of JM and ors v SSHD [2015] EWHC 2331 (Admin). I am informed that most of those similar cases have settled and that this is the first stayed case to return to the Court following the outcome in JM. I was not told how many others, if any, remain unresolved.
Upon obtaining interim relief, the Claimant was released from detention on 28 January 2015 and the Defendant withdrew her decision on the claim for asylum.
The Defendant has not adduced any witness evidence to explain her decision-making generally, to deal with issues relating to screening or medical examination, to deal with the submission raised in the Claimant’s Grounds that the Defendant knew from 10 December 2014 that after 5 January 2015 the HBF would not be able to provide precise dates for pre-assessment appointments and would expect the Defendant to release from the DFT those considered appropriate for referral or to deal with why, on the facts of this case, it can be said that the Claimant would have been detained in any event.
The Legal Framework
The power to detain asylum seekers in 2015 derived from paragraph 16 of Part 1 of Schedule 2 to the Immigration Act 1971.
The DFT represented an accelerated procedure governed by policy. Paragraphs 2.1 and 2.2 of the Detained Fast Track Processes operating at the time of the Claimant’s entry into the DFT (version dated 14 October 2014) stated:
Detained Fast Track Processes Suitability Policy
An Applicant may enter in or remain in DFT/DNSA processes only if there is a power in immigration law to detain, and only if on consideration of the known facts relating to the applicant and their case obtained at asylum screening (and where relevant, subsequently), it appears that a quick decision is possible, and none of the Detained Fast Track Suitability Exclusion Criteria apply.” (my emphasis)
2.1.2 Ongoing Suitability and Detention Reviews
The suitability consideration must take place at the time of referral to entry to DFT and at all stages of ongoing case management within DFT, particularly following a change in circumstances. (my emphasis)
Quick Decisions
The assessment of whether a quick decision is likely in a case must be made based on the facts raised in each individual case. Cases where a quick decision may be possible may include (but are not limited to):
Where it appears likely that no further enquiries (by the Home Office or the applicant) are necessary in order to obtain clarification, complex legal advice or corroborative evidence, which is material to the consideration of the claim, or where it appears likely that any such enquiries can be concluded to allow a decision to take place within normal indicative timescales;
Where it appears likely that it will be possible to fully and properly consider the claim within normal indicative timescales;
Where it appears likely that no translations are required in respect of documents presented by an applicant, which are material to the consideration of the claim; or where it appears likely that the necessary translations can be obtained to allow a decision to take place within normal indicative timescales;
Where the case is one likely to be certified as “clearly unfounded” under S.94 of the Nationality, Immigration and Asylum Act 2002.”
Paragraph 2.2.3 sets out the general appropriate timescales for decision making. For DFT cases, it is stated that the timescale for a decision will usually be quicker than 10 to 14 days but that the timescales are not rigid and must be varied where fairness or case developments require it.
Paragraph 3.1.1 provides that in “New Asylum Applications” the applicant must be fully screened. The screening interview is for the purpose of obtaining key information from the applicant and for “early suitability consideration”. The process is described by Ouseley J in paragraphs 48, 94 to 112 of his judgment in Detention Action v SSHD [2014] EWHC 2245 (Admin). The DFT Processes make clear that it is vital to obtain and consider relevant information with a view to assessing suitability.
Rule 34 of the Detention Centre Rules 2001 (SI 2001 No 238) provides:
“Medical examination upon admission and thereafter
34. —(1) 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.
(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.
(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.”
Such an examination ought to be capable of identifying those with a history of torture, especially in scarring cases.
Rule 35 (3) and (4) of the 2001 Rules provide:
Special illnesses and conditions (including torture claims)
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
The Enforcement Instructions and Guidance (“EIG”) is a manual providing guidance and information for officers dealing with enforcement immigration matters in the UK. The Defendant’s policy of immigration detention is contained within Chapter 55 of the Guidance. There is a presumption in favour of temporary admission or release and it requires that, where possible, alternatives to detention are used. It lists non-exhaustive factors that the decision-maker takes into account in deciding whether to detain and it lists the reasons for when detention may be appropriate. At paragraph 55.6.3 it provides five possible reasons for detention. These are:
The person is likely to abscond if given temporary admission or release;
there is insufficient reliable information to decide on whether to grant temporary admission or release;
removal from the UK is imminent;
detention is necessary whilst alternative arrangements are made for the person’s care; or
release is not considered conducive to the public good.
The Guidance requires that detention be reviewed at fixed intervals and continued detention must be authorised at certain levels of seniority. Reviews additionally occur when there is a potential material development in a given case, for example upon the receipt of what is known as a Rule 35 report. As cited above medical practitioners are required to report on a detained person in certain circumstances including on “any detained person who he is concerned may have been the victim of torture”. Paragraph 55.10 of the EIG identifies persons who are considered unsuitable for detention and this includes
“those where there is independent evidence that they have been tortured”. I pause here to observe that Rule 35 Reports are sometimes, but not invariably, capable of amounting to independent evidence that torture has occurred.
At the relevant time, there was an Asylum Policy Instruction (“API”) entitled Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service, Version 3 (dated 17 January 2014). It explained how caseworkers should consider asylum claims involving allegations of torture or serious harm where a medico-legal report from one of these Foundations forms part of the evidence. Paragraph 2.11 of the MLR policy states (my emphasis):
“Applicants routed in to the DFT can be referred to the Foundations by legal representatives in the same way as other applicants who are not detained. If either Foundation agrees to accept an applicant for pre-assessment before a substantive decision is made, the applicant will be taken out of the DFT process providing confirmation of the appointment is received. The referral is usually accepted within 24 hours. It is Home Office policy to remove from DFT processes any applicant who is accepted by the Foundations for a pre-assessment appointment. In such cases, unless there are other reasons for the applicant to remain detained he or she should usually be released and the case transferred to the Asylum Casework Directorate (ACD) who will take responsibility for the case management and decision-making process.”
It is not in dispute that by a letter dated 10 December 2014 HBF informed the Defendant that due to capacity issues, starting on 5 January 2015, it would no longer be able to offer an appointment date for an initial assessment where it had accepted a referral from the DFT. It informed the Defendant that it would continue to consider referrals from the DFT, and if the person met the referral criteria, it would issue a letter confirming this and confirming that his case was one which required further clinical investigation and should be removed from the DFT. It is not clear from the entry on the Review Summary dated 26 January 2015, quoted at paragraph 16 above, (and the Defendant has not sought to clarify) whether the officer in question when referring to “updated guidance on referrals to Helen Bamber” was referring to the change in approach by the HBF taking effect from 5 January 2015.
The Relevant Legal Principles
In Detention Action v SSHD [2014] EWHC 2245 (Admin) (“Detention Action 1”), Ouseley J found, in a judgment dated 9 July 2014, that detention under the DFT and the process itself was not unlawful, save in respect of delayed access by vulnerable applicants to lawyers:
“196) … In too high a proportion of cases and in particular for those which might be sensitive, the conscientious lawyer does not have time to do properly what might need doing…
197) … I am satisfied that all the evidence taken together shows that the need for time for proper advice with time to act on it, beyond what the DFT allows, and the need for time for the effective safeguards properly to operate, is not fully appreciated at all stages and levels, partly through a desire to keep a case on track once it is in the DFT. The upshot is that the DFT as operated carries an unacceptably high risk of unfairness, but one which I judge can be removed by the earlier instruction of lawyers…
200) The unacceptably high risk of unfairness may be resolved in a number of ways; it would not have to be by changing the instruction of lawyers, although that seems the obvious point to start given the seemingly indefensible period of inactivity. However, if the screening process were improved or if Rule 35 became an effective safeguard or if greater time were more readily allowed, the change to the way in which lawyers are instructed might not be necessary. It is the failings elsewhere which lead to the allocation of lawyers as the point at which something has to change.
221)I am satisfied that the shortcomings at various stages require the early instruction of lawyers to advise and prepare the claim, and to seek referrals for those who may need them, with sufficient time before the substantive interview. This is the crucial failing in the process as operated. I have concluded that it is sufficiently significant that the DFT as operated carries with it too high a risk of unfair determinations for those who may be vulnerable applicants.”
Ouseley J regarded the instruction of lawyers as a critical safeguard which could protect against failings elsewhere and avoid an unacceptably high risk of an unfair process.
His judgment about this specific aspect of unfairness caused by late instruction of lawyers was upheld by the Court of Appeal (Detention Action v SSHD [2014] EWCA (Civ) 1634). It is not alleged in this case that there was undue delay in the instruction of lawyers.
In terms of general timescales operating in the DFT, Ouseley J said, at paragraph 85:
“Neither is there an overall maximum for the process. While I do not think that a defined long stop period is necessary for the system to be lawful, the regular detention reviews should explicitly consider (1) the reasonableness of the length of time so far passed in what is intended to operate as a Fast Track for cases suitable for a quick decision, and (2) whether continued detention beyond say 30 days has involved the SSHD in inefficiency on her part. The predicate for the lawful detention in the DFT is that the system is operated efficiently for the avoidance of delays. If the needs of efficiency, logistics and avoiding the waste of resources justify detention in the Fast Track, so too resources must be made available for it to achieve its ends. The DFT cannot operate just as fast as the SSHD enables it to operate.”
Ouseley J made clear in his subsequent judgment relating to consequential Orders (Detention Action v SSHD [2014] EWHC 2525 (Admin)) that his limited finding of unlawfulness did not mean that many or most decisions in the DFT were unfair in relation to potentially vulnerable applicants. He declined to make a wider declaration that the operation of the DFT was unlawful and that decision was upheld on appeal (Detention Action v SSHD [2014] EWCA (Civ) 1270). At paragraph 5 of his judgment he said:
“A blanket approach that would remove from it many whose decisions were entirely fair, or who could find remedy within the DFT itself, with the improvements underway, is not necessary.”
And at paragraph 8:
“The fact that someone has had a case decided in the DFT does not mean that the decision was unfair. There would have to be individualised evidence of a specific effect.”
And at paragraph 10:
“The unlawfulness which I found does not mean either that many or most decisions in the DFT are unfair in relation to potentially vulnerable applicants.”
He then went on to make a declaration that:
“As at 9 July 2014 the manner in which the DFT was being operated, as set out in the judgment, created an unacceptable risk of unfair determinations for those vulnerable or potentially vulnerable applicants, referred to in paragraphs 114,198 and 221 of the judgment, who did not have access to lawyers sufficiently soon after induction to enable instructions to be taken and advice to be given before the substantive interview and was to that extent being operated unlawfully.”
It can be seen from the wording of the declaration that it would be relatively easy to identify, on prevailing facts, those applicants captured by it, so long as there was a ready understanding of what “sufficiently soon after induction” meant.
Ouseley J rejected the suggestion that a claim of torture should necessarily exclude an applicant from the DFT process. He said at paragraph 116:
“Nor is there anything unlawful in a policy which does not automatically exclude someone who claims to have been tortured. The view can legitimately be taken that the mere fact of a torture allegation does not make it inherently complex, or unsuitable for a quick decision either. The policy of excluding only those who have independent evidence of torture is not unlawful….. The SSHD is entitled to avoid a mere torture allegation, which can readily be made, without any supporting medical or other evidence such as physical signs, being the simple way of avoiding the DFT, which is a lawful basis for detention and examination. Once there is independent evidence of torture, the claim is regarded as both complex and the individual as not suitable for detention save very exceptionally.”
In JM and Ors v SSHD [2015] EWHC 2331 (Admin) by a Consent Order made by Master Gidden on 19 March 2015, 4 Claimants were selected as representative lead cases in which to decide multiple issues arising from the operation of the DFT. In each of the 4 cases the specialist Foundations had accepted the case as meeting their referral criteria and requiring further clinical investigation but the Defendant refused to release them from the DFT, as in the case of YA, because no pre-assessment date had been provided, contrary to the API referred to in paragraph 29 above. The Order expressed itself in paragraph 1 as applying to judicial review claims challenging the legality and fairness of the continued operation of the DFT process in respect of vulnerable detainees whose claims are said to be unsuitable for the DFT and require further clinical investigation into claims of torture and other serious ill-treatment.
Paragraph 20 of Master Gidden’s Order provided:
“Unless the Court orders otherwise all Claimants entered on the Group Register and/or all further prospective Claimants notified to the First Defendant shall be bound by any judgments or orders made in respect of the generic issues set in (7) above.”
Paragraph 7 of the Order itemised the issues in the claims. By paragraph 7.2 these included:
whether the screening process was lawful and adequate;
whether Rule 34/35 of the Detention Centre Rules 2001 and the policy in chapter 55.8 EIG were lawfully and adequately applied;
the correct interpretation of the API on Medico-Legal Reports from the HBF and/or Freedom from Torture (the Foundations); and
whether the First Defendant lawfully and/or fairly refused to release a detainee from the DFT who has been assessed by the specialist Foundations as having a prima facie claim or torture or other serious ill-treatment which required further clinical investigation because they cannot offer an appointment date due to capacity issues arising from the operation of the DFT.
This Claimant’s case was listed in Schedule 1 to the Order as being a judicial review claim in which permission had been granted along with other similar claims and his case was also listed in Schedule 3 as being one a series of cases stayed by Singh J, pending the outcome in the main JM litigation. YA’s case was therefore not a lead case but it was linked, using case management powers, to the lead cases in JM and there is no dispute before me that this case comes within paragraph 20 of Master Gidden’s order. That being so, the parties are bound in this case by any orders or judgments made in respect of the generic issues listed in paragraph 7 of the order.
On 2 July 2015 the Minister of State for Immigration announced a suspension and review of the operation of the DFT.
On 3 July 2015 Blake J approved a consent order in the JM case. He gave a short judgment accompanied by a statement of reasons for the agreed order.
In his Statement of Reasons at paragraph 7, he referred to the difficulties that the specialist foundations had experienced in trying to meet the increased number of referrals being made. He recorded at paragraph 13 that (my emphasis):
“On 1 June 2015 the Defendant conceded in the detailed grounds of evidence that the DFT had operated unlawfully between 5 January 2015 and 19 March 2015 on the basis that the refusal to release on receipt of a HBF/FtF acceptance letter was contrary to the purpose (if not the strict wording) of the Foundations’ API, in respect of acceptance letters received before an asylum decision was made.”
At paragraphs 47 to 49 he noted that:
“The Defendant accepts that the DFT was operated unlawfully as at 2 July 2015 because of the unacceptable risk of unfairness in respect of those vulnerable or potentially vulnerable whose claims were not suitable for a quick decision in the DFT.
The safeguards in the DFT including screening and Rule 35 of the Detention Centre Rules 2001 did not operate sufficiently effectively to prevent an unacceptable risk of vulnerable or potentially vulnerable individuals, whose claims required further investigation, being processed in the DFT.
The Defendant accepts that applicants whose cases require further investigation into their claims of torture, or ill-treatment or other vulnerability which cannot be obtained in detention are not suitable for quick determination in the DFT.”
In the case of the four lead Claimants, the Defendant accepted that the respective vulnerability of the Claimants ought to have been apparent at screening and that subsequent Rule 35 Reports should have resulted in release from the DFT. In each case, the DFT failed to identify them as vulnerable and unsuitable for a fair and quick determination.
Relevant to this case, Blake J then declared (by consent), inter alia, that:
The DFT as operated at 2 July 2015 created an unacceptable risk of unfairness to vulnerable or potentially vulnerable individuals and that there was an unacceptable risk of failure:
to identify such individuals; and
even when such individuals were identified, to recognise those cases that required further investigation (including, in some cases, clinical investigation);
as a result of which there was an unacceptable risk of failure to identify those whose claims were unsuitable for a quick decision within the DFT; and
[…]
the Defendant acted unlawfully between 5 January 2015 and 19 March 2015 and in breach of the purpose of the API Medico-Legal Report Service paragraph 2.11 in refusing to remove from the DFT individuals whose asylum claims had not yet been determined, following receipt of written notification that the Helen Bamber Foundation or Freedom from Torture had confirmed that the case had been referred to them and assessed as requiring further investigation.
The consent order explained that “vulnerable or potentially vulnerable” individuals include asylum seekers who may be victims of torture or significant ill-treatment. The Claimant is a potentially vulnerable asylum seeker because, on the face of it, he may be a victim of torture.
I will refer to the first declaration in paragraph 49 above as “the unsuitability for DFT declaration” and the second as the “HBF/FfT declaration”.
In his short judgment, Blake J explained that he had entertained reservations about the proposed wording of the “unsuitability for DFT declaration” because on one view “it gives very little objective information as to how such people could be identified”; i.e., how “vulnerable or potentially vulnerable people” could be identified. He was nonetheless persuaded to make the declaration. At paragraph 11, Blake J said (my emphasis):
“Despite my concerns as to the wording of paragraph 2, I am assured that that has been very carefully considered by both parties and it would be unfortunate for the court’s concerns at this stage to disrupt the process of negotiation and consensus and approval which has been reached at a high level……I have been persuaded that the draft declaration read as whole makes it plain that it was by reason of what each Claimant said at screening interview that made the decision to place them in the DFT flawed. The statement of reasons accompanying this order is of importance as indicating the factual basis on which these legal consequences are based.”
This is of assistance to the court, because notwithstanding the reference to “approval at a high level”, the parties before me were, regrettably, unable to agree the effect of the declarations on this Claimant’s case. It is easy to identify with precision cases which fall within the “HBF/FtF declaration” because they will have been the subject of specific written correspondence. It is not so easy to define those falling within the more generic “unsuitability for DFT declaration”, as Blake J anticipated with prescience, because such cases, I find, will be fact-specific in respect of what occurred or of what ought to have occurred at screening. Blake J’s judgment is binding on the parties before me because of the operation of paragraph 20 of the Consent Order of Master Gidden referred to in paragraph 41 above.
To date, as I have indicated, there has been no decision on what the implications of the “unsuitability for DFT” declaration are for cases caught in JM by paragraph 20 of Master Gidden’s order.
Summary of the Claimant’s Case
The Claimant raises five issues which he says undermines the legality of part or all of his detention:
he contends that the Defendant should have known that his case was too complex to be dealt with under the DFT from the outset, or in the alternative by other stages during his detention. This point overlaps with points (ii) to (v) below and the Claimant says that his experience especially at screening and in respect of Rule 34/35 reflect the unacceptable risk of failure and of unfairness referred to by Blake J;
he relies upon the existence of indicators of torture and says that this should have prompted the Defendant to exclude or remove him from the DFT either at the outset or by later stages in his detention. Again, this point overlaps with others;
there was a failure to screen the Claimant at the outset, thereby rendering use of the DFT unlawful. Had such screening occurred, his allegations of torture and the unsuitability of his case for management in the DFT would have been apparent and a Rule 35 Report would have been prepared;
there was no Rule 34 medical examination of the Claimant in breach of the mandatory statutory requirement to conduct one within 24 hours of his admission to detention, with the result that there was no Rule 35 report made available. This, it is said, renders the subsequent detention unlawful and explains why the Defendant did not appreciate, as she ought to have done, the complexity of the Claimant’s case at an earlier stage. As a result of the alleged failures that I have summarised at (i) to (iv) the Claimant says the entirety of his detention (Period 3) was unlawful. If that is wrong then Period 2 kicks in from the date of his interview on 19 January after which detention was unlawful; and
the refusal to remove him from the DFT within a day of receipt of the letter from the HBF on 21 January was unlawful and the Defendant is bound by the “HBF/FfT” declaration of Blake J referred to in paragraph 49(vi) above. Even if that order is not binding, the Claimant submits that the Court should take a “purposive” approach to the question of how the Defendant ought to have responded to the receipt of the HBF letter, especially in light of the concession made by the Defendant on 1 June 2015, referred to in paragraph 46 above.
The Claimant points to the high burden on the Defendant to justify the Claimant’s deprivation of liberty and the obligation under paragraph 2.2.1 of the DFT Processes (referred to above) to continue to review suitability for retention within the DFT at all stages of detention, not least at the vital point of screening. In response to the Defendant’s submission, which I summarise below, that regardless of any unlawful operation of the DFT in the Claimant’s case, he would, in any event, have been lawfully detained pursuant to the Guidance in Chapter 55 of the EIG, the Claimant submits that Chapter 55 is not relevant to the operation of the DFT, that he is vulnerable, that the reasons for detention relied upon in the Case Record Sheet (referred to at paragraph 6 above) existed during his lengthy release from October 2013 to 10 January 2015 on conditions when he was compliant – in other words they did not justify detention then. He emphasises that if the Defendant wishes to sustain such submissions, she ought to have served witness evidence to support them.
Summary of the Defendant’s Case
In general terms the Defendant says that regardless of what occurred to the Claimant in the DFT and regardless of whether his case was complex or not, this Claimant would have remained in lawful detention because of the operation of Chapter 55.6.3 of the EIG. In deploying this argument, Miss Busch submitted that the first, third and fifth reasons for ongoing detention cited in Chapter 55.6.3 of the EIG applied, namely likelihood of absconding, imminent removal and release not being conducive to the public good. She also submitted that the Claimant had “offending issues”.
In respect of the allegation that it was an unlawful failure not to conduct a screening interview with the Claimant, the Defendant relies upon the fact that such an interview was conducted in November 2013 at the time of the Claimant’s first application for asylum. That interview, she says, did not provide indicators of torture or a trigger for “warning bells” and was sufficient for the purposes of entry onto the DFT in January 2015. If an officer observed on 10 January 2015 that this Claimant ought to be screened, that observation was recorded in error, although she accepts through her counsel, Miss Busch, that there is no evidence of that at all.
In respect of the alleged failure to conduct a Rule 34 medical examination within 24 hours of detention (or at all), the Defendant submits that there was no suggestion that the Claimant was unfit for detention and that this was apparent virtually from the outset.
The Defendant accepts receipt of a letter from the HBF on 21 January 2015 and that she is bound, in this respect, by the “HBF/FfT declaration” approved by Blake J. But, she submits that refusal to release the Claimant from detention within a very short time of receipt of the letter was not unlawful because it was reasonable for the Secretary of State to have several days’ grace to take stock of its implications and the Claimant would, lawfully, have been detained under Chapter 55 in any event. Miss Busch submitted that the logistical and administrative arrangements for release take time although I note (a) the Defendant has served no evidence about this, (b) that this was not a reason cited in the records for continuing detention after receipt of the HBF letter and (c) the Defendant was able to release the Claimant very shortly after the order of Carr J, granting interim relief.
Discussion
In my judgment, the issues raised by the parties require me to examine in the context of the declarations approved and made by Blake J in JM and in the context of the facts of his case:
whether the Defendant unlawfully failed to identify the Claimant as potentially vulnerable and unsuitable for a fair and quick determination within the DFT and if so, when such a failure arose. This will include consideration of whether in any event the Claimant ought to have been released following the Defendant’s receipt of the HBF letter and if so, when. Resolution of these issues will determine whether any period of the Claimant’s detention was unlawful; and
in light of the “causation” argument relied upon by the Defendant, I am also required to consider, if appropriate, whether, in any event, the Claimant would have lawfully remained in detention as a result of the application of Chapter 55 of the EIG.
Before turning to each of those issues, I remind myself of the fundamental right to be free both at common law and within the parameters of Article 5 ECHR and the burden upon the Defendant to justify the detention of an individual without trial or charge. The parties agree that the court’s review of the Claimant’s detention is not confined to a consideration of reasonableness in the Wednesbury sense. The court is also concerned with the public law duty to act consistently with any relevant statutory purpose and with published policy – see paragraphs 30 and 66 of the judgement of Lord Dyson in R (WL (Congo)) v SSHD [2012] 1 AC 245.
The effect of the “unsuitability for DFT declaration” must be determined on the facts of any given case. Not every detention of a vulnerable or potentially vulnerable person before 2 July 2015 in the DFT will be unlawful as a result of that declaration but I am dealing here with a Claimant linked to the JM litigation. In that litigation the parties agreed and the court declared that the safeguards of the screening and Rule 35 did not operate effectively to prevent “an unacceptable risk of vulnerable or potentially vulnerable individuals, whose claims required further investigation, being processed in the DFT”. If the unacceptable risk materialised in YA’s case, his detention is to be judged unlawful once a trigger date has been reasonably identified on the specific facts. It is convenient to deal with the submissions about screening and Rule 34/35 together.
I do not accept the Defendant’s submission that the screening interview conducted on 18 November 2013 amounted to sufficient screening, in terms of a recognised safeguard, for the purpose of assessing whether the Claimant ought to be admitted to or remain within the DFT. The purpose of the screening interview in the DFT is to assist with the prompt assessment of suitability for the DFT and the early identification of those who are vulnerable or potentially vulnerable. The November 2013 interview was not conducted with the operation of the DFT in mind. There is no evidence before me that any decision maker in 2015 considered the contents of the November 2013 interview in the context of suitability for the DFT as at January 2015. The available case records suggest the opposite and reflect an expectation that in accordance with standard procedure the Claimant would be screened. He was not. The failure to screen him represented a failed opportunity to assess at an appropriately early stage, his suitability for the DFT. The Fast Track Induction Interview which occurred on 12 January 2015 did not provide an adequate substitute for screening and the Defendant has not suggested that it did.
During his asylum interview in November 2013, the Claimant referred to the physical mistreatment that he had received in Chad but he did not allege that he had been tortured whilst detained in Libya. His first account of torture was provided on 19 January 2015 after he had had the opportunity to consult with his solicitors. The Defendant noted at that stage the complexity of his case and country. That interview was continued on 22 January 2015. It is not possible to identify from the notes whether the Claimant gave details of alleged torture on both 19 and 22 January 2015 but this seems likely. In any event the interview process collectively involved him giving details of alleged torture. The court cannot know whether, had he been subject to an appropriately conducted screening interview very shortly after 10 January 2015, he would have given answers suggestive of potential vulnerability but it seems quite likely. The Defendant has produced no evidence to suggest that the likely questioning at that stage in the process would not have resulted in indicators of vulnerability.
There was a mandatory obligation upon the Defendant pursuant to Rule 34 of the Detention Centre Rules to give the Claimant a physical and mental examination within 24 hours of his admission to the detention centre. I do not accept the Defendant’s submission that the examination must have occurred, there being no evidence for such an assertion. I do not accept the Defendant’s submission that as the Claimant appeared well enough for detention, any failure to have examined the Claimant is irrelevant. I was not given any information by either party about the usual forensic depth of such examinations. Given the nature of the Claimant’s scarring, which I have summarised above, it seems more than likely that such scars would have been observed and that an account amounting to a possible claim of torture would have been provided.
If that is correct, it would or rather should have resulted in the preparation of a Rule 35 report which, I find, would, probably, have summarised the allegations of torture prompting the Defendant to review the Claimant’s suitability and to consider whether the report constituted independent evidence of torture. Again, I was not provided by either party with evidence about the usual timescales for the preparation and assessment within the DFT of such reports. I was not told about the standard of compliance generally with the requirement to examine within 24 hours although I note from the facts of cases considered by Blake J in JM and Cranston J in Hossain that timescales appear to have been very variable. I was not informed by the Defendant what view they would have taken had a rule 35 report demonstrated potential vulnerability on the basis of alleged torture.
The effect of my findings above is that in this individual Claimant’s case, there was an unacceptable failure to identify him as a potentially vulnerable person whose case required further investigation and therefore as someone whose claim was not in fact suitable for retention within the DFT because it could not be dealt with fairly and quickly within the DFT. The combined process of screening and the operation of Rules 34 and 35, had the proper procedures been followed, would have identified him as a possible victim of torture. The unacceptable risk of failure, referred to in the “unsuitability for DFT declaration” of Blake J, applies squarely to the facts of this Claimant’s circumstances and experience in the DFT. The prompt instruction of lawyers as occurred here and regarded by Ouseley J as a critical safeguard, will not, in the light of Blake J’s declaration, render such unlawful detention lawful. In any event, his lawyers did not see the Claimant for 5 days after their allocation. My findings are fact specific to this Claimant’s case and arise, as I have emphasised, in circumstances where the Defendant has elected not to file any witness evidence.
I must consider when, reasonably, the Defendant ought to have identified the Claimant as potentially vulnerable and appreciated that his claim was not suitable for retention within the DFT. Such an exercise involves an inevitable degree of speculation especially in the light of the Defendant’s evidential vacuum. I do not accept the Claimant’s submission that the complexity or indicators of torture should have been realised so quickly that the entire period of detention was unlawful. That is not realistic. Screening, examination and decision-making would all have taken time. After the interview with the Claimant on 19 January 2015 the Defendant’s officer considered that his replies had reflected “the complex nature of the claim/country”. Had he been screened and examined this would, I find, have been apparent even earlier. On the limited information available, I find that it would have taken the Defendant, allowing her a reasonable degree of latitude, reasonably, seven days to identify the Claimant as someone whose case was too complex to remain within the DFT. Allowing a further day to process his release, this means that in my judgment, his detention was unlawful from the morning of 19 January.
That being so, it is not strictly necessary for me to consider “Period 1” relating to the receipt of the HBF letter on 21 January. The effect of the “HBF/FfT declaration” is straightforward. It renders this Claimant’s detention following receipt of the letter of 21 January 2015 unlawful, subject to identifying a reasonable time by which he ought, as a result of that letter, to have been released from detention. Had it been necessary to determine this issue, I would have found, without hesitation, in light of the concession and declaration in JM, that it was unlawful not to release the Claimant within one day of receipt of the letter.
Chapter 55 EIG
In the OM (Nigeria) case [2011] EWCA Civ 909 Richards LJ considered that the test in this sort of situation was whether “it would have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain [OM] in the circumstances of the case”.
Beatson LJ adopted the same test in R (Das) v SSHD [2014] EWCA Civ 45.
I have summarised the Defendant’s submissions on this issue at paragraph 56 above.
On most of the review summaries the reasons for continuing to detain the Claimant in the DFT were essentially that he was a single male in good health, with a poor immigration history who did not meet the exclusion criteria.
When asylum was refused on 26 January 2015 the relevant officer recommended ongoing detention under Chapter 55 for the reasons that I have cited verbatim in paragraph 16 above. I was not referred to any other policy in support of the Defendant’s argument other than paragraph 55.6.3 of the EIG which I have cited above.
Miss Busch submitted that it was clear that the Claimant was at risk of absconding. This risk, however, was not assessed or referred to in the documented reasons for detention beyond the reference to the poor history of entering twice illegally. In fact his previous history of reporting was noted. YA had for over a year complied with his conditions of release. During that period of freedom, some 15 months, the Defendant was well aware of his immigration history but appears to have taken no steps to deport him.
In terms of the Claimant’s contact with the police, there was a reference to an arrest on 28 September 2014 for criminal damage but no further information or suggestion that the arrest had resulted or was likely to result in any sort of charge. As I have already described, the arrest on 10 January 2015 was resolved on that day with no further action. The first two detention reviews referred to the fact of arrest in terms of recommending detention in the DFT. The resulting ones, including that conducted with Chapter 55 in mind, did not.
The officer, in recommending continued detention under Chapter 55 on 26 January after asylum was refused likewise made no reference to the imminence of the Claimant’s removal or to his release not being conducive to the public good.
As in Das, I do not consider that in all the circumstances of this case it is possible for me to reach the firm conclusion that the Defendant invites me to reach, especially:
when the arguments about detention advanced by Counsel for the Defendant go further than the reasons recorded in the Case Record documentation; and
given the absence of any witness evidence on behalf of the Defendant.
In the light of my judgment, I invited the parties to agree the terms of any consequential orders. They were able to do so and I make the following orders:
The Claimant’s claim for judicial review be allowed in respect of the period of detention between 19 January 2015 and 28 January 2015;
There be a declaration that the Claimant was unlawfully detained contrary to common law and Article 5 ECHR from 19 January 2015 to 28 January 2015;
The Claimant is entitled to substantial damages for unlawful detention;
The Defendant do pay the Claimant’s reasonable costs to be assessed if not agreed;
There be a detailed assessment of the Claimant’s publicly funded costs which are payable by the Lord Chancellor under Part I, Legal Aid, Sentencing and Punishment of Offenders Act 2012; and
As to the claim for damages:
The claim is to be stayed for three months from receipt of the Court’s sealed order for the parties to negotiate;
If no agreement is reached between the parties upon the expiry of three months from the date of sealing of this Order, absent further Order, the claim to be transferred to the Central London County Court for determination of damages.
Liberty to apply.