The Claimant (‘C’) was detained by the Defendant (‘D’), in particular between 10.09.16 and 28.09.16. By this claim he seeks a declaration that the detention was unlawful and substantial damages for the detention. D denies that the detention was unlawful but contends that if it was unlawful, C is only entitled to nominal damages. There is common ground that if I should find C entitled to substantial damages, I should refer the assessment to a master of the QBD.

C is aged 34. He is a national of Egypt. He accepts he has had in the UK ‘an adverse immigration history’. On 15.03.07, he was issued with a visitor’s visa which expired on 15.09.07. 0n 08.01.08, he was encountered at Heathrow when he was seeking to board a plane to Cairo. He was permitted to board, after being served with papers as an overstayer. On 02.05.09, C re-entered the UK in possession of a purported Bulgarian passport and claiming to be a Bulgarian national. Upon questioning he claimed to be an Iraqi and to have an Iraqi name (not the Bulgarian name). He claimed asylum. He was given temporary release. He the absconded in the sense that he failed to maintain contact with the Home Office. He was deemed to have withdrawn his asylum claim. On 16.05.11, he claimed asylum as dependent spouse of an Egyptian national, by whom he had a son. On 02.06.11, the wife’s asylum claim was refused and her appeal was dismissed on 18.07.11, C having given evidence for her in his alleged Iraqi name. Following the exhaustion of her appeal rights on 23.09.11, C became an overstayer. On 30.08.12, C further claimed in his Iraqi name that he should be permitted to remain in the UK as the alleged spouse. His representations were refused. C sough judicial review of that decision. Permission was refused on paper and on a renewed oral application on 02.10.13, by when he had a second son. On 19.11.15, an officer of D, encountered him working in a restaurant in Cardiff, without relevant right. On 27.04.06, C registered with D an intention to marry a third party. That registration was in his Egyptian name. On 27.06.16, C wrote to D to say he was not proceeding with the marriage. On 04.05.16, he had reported to D, in accordance with his temporary leave to be here, asserting his true nationality was Egyptian. He produced an expired Egyptian passport.

On 14.07.16, C was the subject of an enforcement visit and detained pending his removal from the UK as an unlawful overstayer. On 28.07.16, C claimed asylum claiming a fear of persecution by reason of his conversion in 2008 to a Jehovah Witness, having previously been Muslim. He asserted he was in a relationship with an Italian national and contended that removal from the UK would infringe his human rights. On 14.08.16, D decided C’s claim was suitable for he detained asylum casework process (‘DAC’). He had a screening interview and then on 30.08.16, a substantive interview. At the screening interview he denied medical conditions, but at the substantive interview he said that he had suffered knife wounds in Egypt by reason of his conversion in 2008. On 10.09.16 a report was made in which a doctor recorded that C had scars which might be due to the history he described. That was a rule 35 report. Rule 35 was of the Detention Centre Rules 2001 SI No 238, made under s135 Immigration and Asylum Act 1999. It dealt with whether C was particularly vulnerable to harm in detention. It had relevance to whether C was an adult at risk in immigration detention for the purpose of Chapter 55b of the Enforcement Guidance, EIG55b, which gave D staff guidance on adults at risk in immigration detention.

On 14.09.16, a decision was made to maintain detention in the light of the contents of the rule 35 report.

On 20.09.16 C’s asylum and human rights claim was dismissed as D disbelieved C’s assertion as to his 2008 conversion and consequent attack on him.

C appealed the asylum refusal. That appeal is, I am told, to be heard on 02.10.18.

In the meanwhile, on 20.09.16, D had been informed that an emergency travel document (‘ETD’) was required to remove an Egyptian national. Apparently until then D considered that an ‘EU’ letter was sufficient. Some countries accept such a letter as reason to accept repatriation of a national.

On 28.09.16, C was released from detention. The essential reason for the release was that there was no firm ETD timescale and D did not consider any longer that removal could be effected in a reasonable time, so as to continue to justify detention.

But those reasons also observed that the rule 35 report did not suggest was that C met the ‘UNCAT’ definition of torture. On 12.09.16, EIG 55b had also adopted that definition of torture in relation to guidance on adults at risk in immigration detention.

This claim was issued on 23.09.18. It challenged the DAC decision on 14.09.16 and that on 20.09.18 dismissing the asylum claim. Its ground 3 challenged as unlawful the then new Chapter 55b of the EIG.

A hearing took place before Ouseley J on 21.11.16. It related to a number of claims including this one. A common feature of such claims related to the lawfulness of the adult at risk policy. Ouseley J identified some of the claims as lead cases (‘the lead claims’). C’s claim was not one of them. C was however given permission solely to argue aspects of ground 3 as related to D’s adults at risk policy or ‘DSO 9/2016’. The judge made an interim anonymity order in relation to C (and others). Otherwise he directed C’s claims for permission to go before a single judge to consider permission.

On 29.06.17, Mostyn J refused permission to argue his remaining claims. One such claim had alleged that the detention breached ‘Hardial Singh’ principles.

This claim was stayed pending resolution of the lead claims. Ouseley J was to resolve the same on 10.10.17 in Medical Justice and others v SSHD and as intervener, Equality and Human Rights Commission [2017] EWHC 2461. He concluded (paragraphs 124 to 130) that the 2016 changes to the definition of torture in reference to ‘UNCAT’ torture was unlawful. A broader definition known as ‘EO torture’ given by Burnett J in EO and Others v SSHD [2013] EWHC 1236, was preferred. The EO torture definition was not limited to the acts of state agents. Burnett J’s relevant definition is at [82] in EO;-

On 06.02.18, a consent order was made extending time for C to file amended grounds. On 01.06.18, an order was made extending D’s times to file detailed grounds of opposition, to the claim as it then stood.

The amended or ‘replacement’ grounds are that following the decision in Medical Justice, the question is whether the D applied the unlawfully restrictive definition of torture to its refusal on 14.09.16 to accept D was a victim of torture and on 20.09.16 to refuse to accept his asylum claim. They have sought a declaration that C was unlawfully detained between 14.09.16 and 28.09.16.

By her skeleton argument for C dated 25.05.18, Ms Sabic seeks a declaration that the unlawful detention ran from 14.07.16, thus the initial detention for removal. In opening her argument, C alleged there were arguments that the detention infringed principles in Hardial Singh [1984] 1 WLR 704, per Woolf J as he then was and in particular that detention could only be for a period that was reasonable in all the circumstances. But it seemed to me that to raise a challenge to the decision on 14.07.16, she would need to apply to amend the grounds of challenge and to particularise such amended grounds long out of time and that such an application would raise questions of adjournment and costs. In the event no such application was made.

The decision on 14.09.16 did state:

D has cited in defence from the terms of the ‘adults at risk in immigration detention’ policy dated 09.09.16. They include that there might be experiences in which the victim has (or claims to have been) the victim of torture as defined in UNCAT.

The guidance referred to evidence levels once an individual had been identified as being at risk. Professional evidence was to be given greater weight and the individual should have been regarded at ‘level 2’. Where there was a reasonable prospect of removal the decision maker was to carry out a balancing level between risk factors and immigration factors. The guidance was to weigh the risk to the individual against how quickly removal was likely to be affected, the compliance history and any public protection concerns.

D relies upon a statement by Mr Jagpal, who has been a team manager and senior caseworker for the detained fast track unit and DAC at Harmondsworth IRC. He gives clear reasons for the detention on 14.07.16. He argues that if the EO definition of torture had been applied on 14.09.16, rather than the UNCAT definition, that if he had been the decision maker at the time, he would still have maintained C’s detention. He would have accepted that C’s account would have amounted to level 2 evidence. He would have noted that the doctor informing the rule 33 report did not suggest that detention would lead to significant harm. He would have noted that removal was thought within a reasonable timescale. He would have picked up on any public protection concerns and negative indicators of non-compliance. He would have considered the lack of communication to D of health care concerns. He would have taken account of the fact that C’s concerns about his relevant safety on removal to Egypt had formed no part of his earlier claims or appeals. He considers that given the apparent weakness of the then new asylum claim and risk of absconding if not detained and then expectation of early removal, that he would have continued detention.

D argues in reliance on such evidence and points that the unlawful reliance on the UNCAT definition of torture would not have borne on the impugned decision to continue detention or the asylum decision on 20.09.16.

In my judgment that cannot be accepted as the decision referred in terms to the UNCAT definition and to C accordingly not having been the victim of torture. C's contention was that he had been the victim of torture by reason of his 2008 conversion from being a Muslim. If correct that could have amounted to torture within the EO definition.

Ms Sabic submits for C that it is not open to D to argue that the unlawful act did not bear on the impugned decision. She cites VC v SSHD [2018] EWCA Civ 57. In that case the CA allowed an appeal from a dismissal of a claim for damages for unlawful detention. The unlawfulness of the relevant detention decision related to misinterpretation of chapter 55 in relation to the relevance of a mental health issue and satisfaction that the claimant could be satisfactorily managed within detention. The error related to perceiving a need for hospitalisation to undermine management in detention. Beatson LJ gave the leading judgment. At paragraph 50 he considered the judge below had fallen into error in finding that it was rationally open to D to find that the claimant could be lawfully detained in the relevant period despite the public law error.

I agree with Ms Sabic. C was unlawfully detained between 14.09.16 and his release on 28.09.16. Contrary to the defence point, the reliance on the UNCAT definition of torture did amount to a public law error and undermined the decision on 14.09.16.

I do not understand that the decision on 20.09.16 to refuse asylum is within the limited permission granted to seek judicial review (it has been the subject of the separate statutory appeal). But if it were, the public law error if repeated in it may also have vitiated it.

In Lumba, Lord Dyson at [71] had observed that "(I)f the power [to detain] could and would have lawfully have been exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages'. In VC, Beatson LJ between [57] and [62] discussed points of law relating the question of substantial or nominal damages for a detention decision vitiated by a public law error. In relation to 'could' the question was whether the decision could lawfully have been made in accordance with the 'Wednesbury' test and whether the duration was within the Hardial Singh [1984] 1 WLR 704 principles. It would be for D on the balance of probabilities to show that if she could have lawfully detained C during the relevant period in 09/16, she would have done so.

Had the relevant guidance on 14.09.16 referred to a definition of torture equivalent to torture, then a factor informing the decision as to whether to continue detention with a view to removal to Egypt would have been the case advanced by C in relation to what happened to him in 2008 on his alleged conversion from being a Muslim. Nonetheless in my view it is clear that the balance of the cited guidance could have enabled D in weighing matters to conclude that detention should continue. Further given removal was then considered imminent the relevant detention would have been for a reasonably short and lawful period.

D relies on the evidence of Mr Jagpal, which I have noted, in alleging on the balance of probabilities that she would have continued the detention. C was a long overstayer. Though he had been in touch with D, I am told since the 2011 asylum claim, there was a history of 'absconding' from D. His immigration record was bad. There were ample reasons to be sceptical about his new story about the 2008 'conversion' and torture. The asylum decision would shortly be reached and subject to any appeal, early removal was expected.

Ms Sabic argues that the appeal was a barrier to early removal. She also contends that C’s application for contact with his sons was such a barrier. In context a letter dated 04.08.16 to C’s solicitors from lawyers acting for him in pursuit of such contact, explains that he had applied to court in 04.16. The application had apparently had problems about C not knowing where his sons were and the involvement of a domestic violence agency consulted by his wife. Further the application had not been progressed because of C’s immigration status and he would have to attend any hearing.

Ms Sabic raised such matters in indicating a challenge to the decision on 14.07.16. As to the decision on 14.09.16, D could not then have been aware of the asylum appeal and the application relating to the sons does not appear then to have been raised with D.

It is not for me to rewrite or remake the impugned 2016 decision.

Nonetheless, D has satisfied me that on the balance of probabilities had she addressed the correct definition of torture she would have reached the same decision to continue detention with a view to removal. In the VC case, D was criticised for failing to provide evidence of what she would have done if the public error had not been made. D has relied in this case on the evidence in that regard of Mr Jagpal. He gives his reasons why he would have maintained the decision on matters as they appeared to D on 14.09.16. For my part Ms Sabic’s points appear to me to amount to possible further reasons for discharge. But the discharge on 28.09.16 because of the ETD point rendered their advancement redundant.

Accordingly in this case I determine that C is only entitled to nominal damages.

I informed Counsel that they should address me on paper as to the terms of any order I should make including as to costs and permission to appeal, which they have done on 13.06.18.

C seeks his costs alternatively 50% of them, having succeeded in showing that the relevant detention was unlawful. D by contrast, seeks his costs or no order for costs, on the footing that permission was only obtained to pursue one of the grounds advanced by C and that most of the hearing on 08.06.18 related to the damages issue on which D was successful. Given C’s limited success on one ground and his failure to recover substantial damages one that ground and the failure of his other grounds, I consider I should make no order as to costs.

C seeks permission to appeal given he says I did not consider whether the decision on 14.09.16 to continue detention was Hardial Singh compliant as well as considering the Wednesbury test in relation to that decision. But I considered the VC guidance at 26 above and at the end of 27 above considered that the decision was because of the then perceived early removal, for a short and lawful period. I do not consider the proposed ground of appeal arguable and I refuse permission to appeal.

In the above circumstances, I consider that following handing down of this judgment an order should be made in the form drafted by Mr Waite with his draft order 2 simply saying ‘no order as to costs’. I shall approve and arrange the making of an order in those terms.