Rasciukas, R (On the Application Of) v Secretary of State for the Home Department

This is the Administrative Court judgment in the case of R (on the application of Leonidas Radciukas) v Secretary of State for the Home Department, reference CO/1633/2016, judgment following oral hearing in Birmingham.

This is a claim for judicial review brought by Mr Radciukas. It was a broadly drawn claim originally and the application was pursued on various grounds including a challenge to the deportation order itself and the subsequent decision to certify. Originally the matter went before His Honour Judge McKenna, sitting as a High Court Judge. His grant of permission unfortunately is slightly unclear and arguably ambiguous. He appeared to limit the grant of permission which he gave to the issues only of deportation and certification, but he did not in terms deal with the lawfulness of the detention one way or another. This is relevant because the other grounds have now fallen away or are not pursued simply because they are academic and thus it appears that there is a vacuum in terms of permission in relation to the live grounds. That was raised as a preliminary point before me because the oral argument was limited, first, to the detention and its lawfulness on 6 November 2015 and, secondly, the detention on 8 February 2016.

In a short ex tempore judgment given at the outset I indicated, for the avoidance of doubt essentially, that I was prepared to grant permission to appeal in relation to the whole claim in order that the outstanding grounds could be fully argued, which they were, and, if I may say so, expertly by Mr Raphael Jesurum for the claimant and Mr Vinesh Mandalia for the Secretary of State. As well as those oral arguments, I had the skeleton arguments in writing prepared by counsel to supplement the substantial documentation already filed in the claimant's bundle, the permission bundle, all of the supporting documents and of course the Secretary of State's detailed grounds of defence.

The background chronology, given the narrowness of the claim now, is not in dispute and can be stated very quickly and in fact for convenience I indicate my acceptance of the material set out in Mr Jesurum's skeleton argument beginning at paragraph 5 when in a list of paragraphs he simply sets out the factual matters. In the very briefest essence the claimant is a Lithuanian having been born in 1963. While still in Lithuania and for many years he conducted a criminal lifestyle involving very serious offending indeed and was sentenced repeatedly to terms of imprisonment. In the early part of this century his son was born. He then was imprisoned for the last time in Lithuania before arriving in the United Kingdom in 2009.

He offended regularly in this country and indeed allegedly in Scotland, but on a very much reduced basis, his offending being essentially minor matters of dishonesty and the like. Nevertheless, he came to the attention of the authorities and a notice of deportation was issued and he was detained. A deportation order was formally signed on 4 November 2015. That of course just predates one of the relevant dates in this litigation, shortly after detention.

When originally detained, of course, a good deal of paperwork was completed and perhaps one of the most important documents is that to be found at page 188 in the bundle, which is the health screening questionnaire completed at Morton Hall Immigration Centre. For the purpose of this hearing it is noteworthy in two respects. In the various lists of illnesses and other complaints he repeatedly ticks “no”, in other words, he does not suffer from them, but over the page under the question: "Have you ever had an operation or been a patient in a hospital in the United Kingdom", he ticks “yes” and says: "Walsall Hospital, prostate cancer." However, he does not, on that document at any rate, complain of any continuing problems and in the response to the rather informal question: "How do you feel you are coping at the moment", the answer states he feels “okay”.

It is, however, plain that at about this same time he had unfortunately received a diagnosis of prostate cancer, as he indicates. We now know, and as the medical evidence proves now, that the diagnosis turns out to be very much more serious and it is terminal and I am told at the time at any rate of the diagnosis he had a prospective life of about two years. Some considerable part of that has now expired and I have not been told of any other medical developments during the course of this litigation. Reverting to the health screening questionnaire, which is, I should have said, dated 7 October 2015, in response to the question: "Have you ever been a victim of torture", he again ticks “no”.

In other documents, which are now available but were not contemporaneously seen by the Secretary of State's representatives, are the extensive medical care notes from Nottinghamshire Health Care NHS, beginning on the same date, 7 October, and no doubt covering some of the same material and it confirms that the patient had a prostate biopsy appointment with the subsequent diagnosis and then over several pages the medical developments are set out.

There is an entry for 6 November, which of course is a relevant date, dealing with the medication that he was prescribed. I need not read beyond that. They are there to be seen and obviously a very significant medical history is to be observed. I have already indicated, although I do not think I gave the date of his detention on 24 September, thta it was not until 6 November that the first Rule 35 report was undertaken. Much turns on this and the subsequent Rule 35 report, so it is necessary to look in detail at the documentation.

At page 116 in the bundle is the certificate of the medical practitioner dated 6 November. Under section 3, "Nature of Report", the box has been ticked:

The narrative of the report, over the page at 117 and 118, reads as follows. It has obviously been completed by the doctor in the course of examination and discussion with the patient. It begins, somewhat obliquely, simply in this way: "Occurred in 2004 in Lithuania." It may be that there is some text missing but no one seems to be able to shed any light on that. It continues:

Over the page on a body map are the indications of the scars to be seen on the upper left part of the patient's body, with notation by the doctor. The formal response of the Home Office Immigration Enforcement Department is to be found at page 120 in the letter of 9 November and, as relevant, reads as follows:

There then follows a background history along the lines of the chronology. It continues in the text:

And then later still in the document:

The second Rule 35 report arose in completely different circumstances and related to his physical health. The documentation is to be found at page 109 in the bundle and the medical certificate dated 8 February has the box ticked:

The Immigration Enforcement response, dated 10 February, at page 108 in the bundle, reads, as relevant, as follows:

It is contended on his behalf that both of those events and both of those assessments rendered his detention from those dates unlawful.

The law in this regard is not, I am happy to say, especially controversial and was referred to by both counsel, but essentially to the same effect. Within the bundle of documents provided for the court is a substantial body of material from the Home Office guidance. Chapter 55 of the guidance, which begins at page 445 of the bundle, under the general heading "Detention and Temporary Release", is of some help. And I was taken to various passages, to which I will simply refer in outline. At page 447, paragraph 55.1.3, "The Use of Detention", was referred to at page 474, paragraph 55.8A, "Rule 35 Special Illnesses and Conditions". I just read briefly from that:

In other words, two of the three categories were engaged in this case head-on. At page 483, under paragraph 55.10 of the guidance, "Persons Considered Unsuitable for Detention", the guidance reads:

In Mr Mandalia's skeleton argument on behalf of the Secretary of State he sets out, and I need not repeat it, the legal framework from paragraph 8 onwards dealing with detention, deportation and the engagement of Rule 35 procedures. And at paragraph 11 he reviews, if I may say so, in helpful short form, a number of the relevant authorities and Mr Jesurum took no issue with that.

Rule 35, to which reference has already been made, of the Detention Centre Rules 2001 was also looked at in detail at the hearing. At page 514 in the bundle, at rule 1.3 of the guidance headed "Detention, Rule 35 Process", guidance rule 1.3 reads as follows:

The exact text or vocabulary of course is relevant because it informs the tick box forms which are worked through and to which reference was earlier made. And then, without reading them, I was also referred to page 517, giving the procedural requirements and the approach to be taken. And then I was shown, importantly in terms of responses, Rule 35.3, "Responses Handling", and (i), consider whether the Rule 35 report constitutes independent evidence of torture. The guidance is this:

It then goes on to deal with the proviso of very exceptional circumstances, which of course was invoked in this case. Again without reading them, I draw attention to annex A with a list of frequently asked questions, some of which were referred to.

As well as the statute and the guidance, the authorities to which I was referred were bundled helpfully in a folder which I have looked at, but perhaps the two which featured most prominently were the decision in R on the application of SA (Holland) v the Secretary of State for the Home Department [2014] EWHC 2570 (Admin), a decision of Mr Mark Ockelton sitting as a High Court judge. The facts were rather different, but some of the reasoning of the learned deputy judge was referred to and relied upon. Perhaps the most convenient summary is under his general heading "The Facts in Detail", paragraph 17 of the judgment. Mr Ockelton says:

I need not go back to paragraph 6, but in the course of his judgment the learned deputy judge sets out in full and scholarly form the material upon which cases such as the present are to be decided.

The other authority from which general comments were derived is that of Burnett J in R (on the application of EO, RA, CE, OE and RAN) v Secretary of State for the Home Department [2003] EWHC 1236 (Admin), and again from the body of the report, without it necessary to look at the individual facts in play in that case, he deals particularly with the issue of medical examination. He said:

Later in the same judgment, from paragraph 65 onwards, the learned judge deals with the particular task of assessing evidence of torture and the interplay, if any, with the detainee's credibility. Having set out a few definitions he goes on at paragraph 68:

Against those preliminary factual findings and concessions and with the guidance and the authorities in mind, I consider the individual claims in this case. In relation to the first detention the claimant says that there is indeed independent evidence of torture. The defendant replies that all that there is in reality is the self-report of the claimant, which is set out by the doctor, whose only opinion in conclusion is that the account is consistent with torture.

In his skeleton Mr Mandalia goes on to say that there are other worrying issues about the claimant's position. Firstly, that he made no prior claim and indeed, when given the opportunity in the Morton Hall documentation, specifically disavowed any allegation of torture. Secondly, that there was no previous medical note and that, although there were recorded injuries by the doctor, including surgical scars, they were at least consistent with other matters and indeed that specifically the claimant himself had referred to having been involved in street fighting.

It is necessary for the decision-maker and me reviewing it to look at the whole passage from 123 to 124. I am entirely satisfied that the decision-maker was merely reciting the claimant's own narrative account. The scarring and surgical appearances set out on the body map are of course potentially consistent, as the doctor finds, but were not beyond that probative and there are other explanations.

Putting the matter shortly and properly in the context of this jurisdiction, I am satisfied that the decision-maker's decision and the analysis of it and explanation for it on page 120 is sound. The rationale is set out and, in my judgment, was open to the decision-maker. I am not satisfied that it could be said that there is independent evidence of torture, as was found by the decision-maker, whose decision, it seems to me, is not therefore impugned.

As to the subsidiary finding as to very exceptional circumstances, it seems to me, given the state of knowledge of the decision-maker, that there was proper evidence before him or her to the effect that there remained a high risk of absconding and a very high risk and an unacceptably high risk of absconding and risk to the public. The only contraindication to that was the claimant's own statement that there had been a diagnosis of prostate cancer made, but none of the other medical material with any suggestion of debilitation or impairment of functioning would have been known to the decision-maker. In my judgment, there was no realistic duty to make further extensive and wide-ranging inquiries.

In respect of the first period, therefore, and the first decision made in November, this claim must fail. The detention is lawful. By the time of the second decision in the February of 2016 the claimant's medical position of course was very much better known. On page 109 the doctor specifically gauges the report in terms of the first box which is ticked:

I have already read the text on page 110. It seems to me that the text there is abundantly clear. Whilst one or two references appear to be second-hand and awaiting confirmation from the diagnosing hospital, it seems to me that the doctor's knowledge was extensive by this stage and I do not accept Mr Mandalia's point that there is any ambiguity or lack of clarity about it. It follows therefore that the response, short as it is on page 108, is, in my judgment, wholly inadequate. It does not engage in any meaningful sense with the reality of the medical position or the doctor's own views. It is in many ways a rather curious document. The doctor, entirely properly, because of the prompt on the tick box, was answering the specific question or highlighting the specific question about health being injuriously affected by continued detention. The response letter of 10 February does not appear directly to deal with that point.

In my judgment, the conclusion is irrational. In that sense it does not engage with the proper question or the tests which are very clearly and extensively, as I have sought to show, laid out in the guidance and it must be regarded as inadequate.

In the claimant's skeleton, at page 48, Mr Jesurum sets out over the next several paragraphs the problems as he submits there are with the procedure, which he describes as failing to give adequate consideration, failing to address the doctor's concern and in particular failing to deal with the very practical point made at the conclusion of the report as to the need for a multidisciplinary medical response.

The question of “satisfactorily managed”, which of course is the vocabulary to which reference should have been made, is missing in the response letter and a different approach is set out. And I accept Mr Jesurum's criticisms of the approach, which accord with my own analysis of the case.

He also goes on to deal with what is a curious, in my judgment, further justification used by the defendant that the claimant was not in any event exercising Treaty rights. That is, in my judgment, a subsidiary issue to the main point, which I have already resolved in favour of the claimant, but in any event, in my judgment, for the reasons set out by counsel, is flawed in any event. The apparent lack of NHS provision, even if correct as a matter of statutory interpretation (about which I remain unpersuaded), must, in my judgment, be read subject to the test. The response in the letter is put in this way:

That is the wrong question, but in any event on the objective view of the facts is a wrong conclusion in any event. Furthermore, the phrase "treatment is better suited in detention", even if I ignore the apparent ambiguous language, is a very surprising response and, in my judgment, is unsupportable and therefore impugnable in this jurisdiction.

Although the discretion of the decision-maker is wide and the court's role to review is very limited, in this case I am quite satisfied that the second decision cannot stand. I therefore grant judicial review in relation to that second limb only. For the reasons that I have sought to explain, I declare that the detention pursuant to that second decision was unlawful in that it was not consistent with the medical report and did not engage with the consequences of that medical report. In those circumstances, pursuant to that declaration, there will be a grant of judicial review.

This is a judgment delivered simply with notes being taken but without learned counsel present. My view at the moment is that costs should follow the event, in other words, that the defendant should pay the claimant's costs, although since I have dismissed one limb of the judicial review and found on the other, there may be other arguments, in which case they can be set out succinctly in writing for me to determine in due course. If any further relief arises from my judgment or any consequential directions are required, again they can be dealt with. I will simply declare my decision today. I will invite any further submissions to be made in writing, if necessary by e-mail to me personally, within seven days. If not, an order setting out my decision can be drawn by the claimant for agreement by the defendant and the order will then issue from the Administrative Court.

Following the delivery and transcription of the Judgment, I have received a joint approach by counsel inviting me to clarify and expand upon one aspect of the case. I am very happy to do so. Unfortunately, there was an administrative mix up which has delayed this short addition.

It has been drawn to my attention that the Judgment does not, in terms, deal with the question of “very exceptional circumstances” in relation to the second period of detention which I have found to be unlawful. It is rightly pointed out that it remains an important factor in the consequential decisions and orders which will have to be made.

Mr Mandalia, with scrupulous fairness and with the agreement of Mr Jesurum, has sent a further Note outlining the issue and drawing my attention to the evidential and legal materials of relevance. I express my gratitude to counsel for that. In the circumstances, essentially as an economic and proportionate step, I propose to deal with this outstanding matter on paper. It is unnecessary to convene a further hearing. In truth, I have not had to resolve an omitted issue but simply will give my reasons expressly for the decision I took. Although, it is probably clear, as a matter of inference, what my view of the point was, I now make it clear on the face of the Judgment.

By the time of the second Rule 35 report, as is clear from paragraph 15 of this Judgment, the claimant’s health had deteriorated markedly. His cancer was widespread and the treatment to be given was likely to be palliative. He would need multidisciplinary help from medical and nursing staff. The medical certificate completed certified the injurious effect of detention.

This was a profoundly different situation from that which had existed earlier and at the date of the original detention which I found to be lawful. Then the matters relevant to the question of “very exceptional circumstances”, for example the risks of flight or offending were highly significant.

In my judgment, the position had so changed and the claimant’s medical situation had so deteriorated that the risks had reduced or evaporated to such an extent that it could not be said that the exception could arguably apply.

I need not refer again to the legal principles considered at the hearing or to the neutral submissions to be found in Mr Mandalia’s Note. I am, however, completely satisfied that the presumption in favour of release has not been and is not arguably displaced in this case.