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

The Claimant, a national of Pakistan now aged 36, claims judicial review of decisions to detain him under immigration powers and to maintain that detention between 19 January and 24 February 2016 when he was released on bail. The facts, to which more detailed reference will be made later, are as follows: the Claimant came to the United Kingdom on 29 March 2011 and was admitted on a Tier 4 student visa valid until 27 August 2012. He did not leave the United Kingdom after his visa expired and on 19 January 2016 he was encountered at Belfast docks having travelled on a ferry from Scotland with the apparent aim of continuing to the Republic of Ireland. He had a photocopy of his passport on which the date of expiry of his visa had been altered so as to make it appear it was still in force. He was however identified as an overstayer and was taken into immigration detention under paragraph 17(1) of and schedule 2 to the Immigration Act 1971 on the same day. He was detained initially in Larne House, which is a short term holding facility (STHF). On 23 January he was transferred to Brook House, an immigration removal centre at Gatwick airport. He claimed asylum (the date when he first made that claim is in dispute) and on 4 February he was moved to Harmondsworth Immigration Removal Centre. On 5 February an asylum screening interview was carried out.

On arrival at each of these three detention centres the Claimant was seen by a staff nurse but not by a doctor though he did later see a doctor at his own request on 11 February at Harmondsworth. His full asylum interview had been initially fixed for 16 February but it was deferred at his own request to 24 February. On 22February the Claimant’s current solicitors Duncan Lewis wrote to the Defendant and, among other things, requested a further postponement of the full asylum interview. This request was declined but, these proceedings having been started on 23 February, Ouseley J made an interim without notice order that the Defendant be restrained from conducting the substantive asylum interview until at least 9 March. On the 24 February the Claimant was released from detention. His asylum interview took place on 5 July. He was given notice that the claim to asylum had been refused on 26 July 2016. He appealed to the First-tier Tribunal and his appeal was allowed in September 2017 following which he was given leave to remain for five years.

There is a long procedural history to this Claim which was begun on 23 February 2016 but then stayed as it fell within a class of claims directed to be stayed by Cranston J on 5 February 2016 pending his determination of the substantive claims of four test cases which raised similar challenges to the lawfulness of the Secretary of State’s “Detention interim instruction for cases in detention who have claimed asylum and for entering cases who have claimed asylum in detention” (DII) in the Detained Asylum Casework (DAC) process. Cranston J’s judgment in this challenge was handed down on 7 June 2016: R (Hossain & Ors) v SSHD 2016 EWHC 1331 (Admin). In short he concluded that the DII system was not systemically or inherently unfair so as to prevent those seeking asylum from effectively advancing their claims. He also found that the Secretary of State had taken important steps required of her by the public sector equality duty in section 149 of the Equality Act 2010 on the application of her policy in relation to detained asylum seekers but those steps were not comprehensive in addressing the protected characteristics listed in section 149 (7) which includes mental illness and sexual orientation. In particular no Equality Impact Assessment in respect of the DAC after replacement of the detained fast track policy, which was suspended in July 2015, by a policy embodied in the DII had been prepared. Cranston J did not seek to identify what such an impact statement might contain and he made no finding that the failure to comply with that duty had had any generalised adverse impact on cases handled within the DAC. In particular he rejected an argument that those whose asylum claims were based upon their sexual orientation were unsuitable for detention. In the four test cases before him he dismissed the claims on their merits.

Permission to appeal by the claimants in Hossain was refused by the Court of Appeal and the stay in this case was lifted. Revised grounds of judicial review in light of the decision Cranston J were then filed by the Claimant. These were put under five heads. Her Honour Judge Coe QC sitting as a judge the High Court granted permission on grounds 2, 3 and 4 only; however on an application for permission to appeal Jackson LJ additionally gave permission on ground 1 but refused permission to appeal in relation to ground 5. The Claim before me is now limited to the contention that the Claimant was unlawfully detained between 19 January and 24 February 2016 (some five weeks), in respect of which he seeks a declaration and damages for false imprisonment on four grounds which may be summarised as follows:

These Grounds are, as Ms Naik for the Claimant says, interrelated and to some extent overlapping. It seems to me to be more logical to consider first Grounds 2 and 3 (which essentially go together) before moving to Grounds 1 and 4.

The Claimant’s case is that there was a failure to comply with Rule 34 of the Detention Centre Rules and as a consequence his detention beyond the 24 hours in which a medical examination was required by the rule became unlawful.

Rule 34 is headed “Medical examination upon admission and thereafter” and provides:

“(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.”

Rule 33 (1) tells us what the reference to “the medical practitioner” means:

“Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise.”

It is accepted by the Defendant that at Brook House and at Harmondsworth there was a failure to comply with Rule 34 in that there was no examination by a medical practitioner within 24 hours of arrival at each centre. It is not however conceded that there was any such failure at Larne House to which (as is common ground) the Detention Centre Rules did not apply. It is however the Claimant’s case that the Defendant’s own policy and instructions required an examination by a medical practitioner at that establishment within 24 hours of arrival.

The Defendant does not however concede that the admitted failures at Brook House and Harmondsworth to comply with rule 34 or any failure (which is denied) amounting to public law error to comply with an internal instruction to the same effect at Larne House were material to the continued detention of the Claimant. There is therefore an issue as to whether such failures meant that, on expiry of the 24 hours without such an examination, the detention became unlawful. If it did then there is a further issue as to whether the Claimant would in fact have remained lawfully in detention if such an examination had taken place at each establishment enabling him to recover substantial as opposed to merely nominal damages for the unlawful detention.

As to what was required at Larne House I have been referred to a Detention Services Order (DSO) 06/2013 issued by the Home Office for action by, amongst others, staff at an STHF (such as Larne House) which included the following in Annex B:

“Healthcare

All detainees must receive an initial health care screening within two hours of their arrival at an IRC. An assessment of whether the detainee requires an immediate appointment with a doctor and where this is not required, a doctor’s appointment to take place within 24 hours of the detainee’s arrival at the centre must be offered.”

Although that refers to an IRC which may not strictly include a STHF it appears that this was intended to apply to all establishments. Indeed the form filled in by the nurse at Larne House which is in evidence contained boxes to be completed under the heading “Initial Conclusion” asking the nurse to state whether an immediate full assessment or a follow on full assessment (with the time of the appointment to be stated) is required.

This instruction is not quite to the same effect as Rule 34 because that rule requires more than simply an offer of an examination by a doctor—it requires the examination to take place subject to the detainee positively refusing his consent to it. Further, Rule 34 specifically refers to “a physical and mental examination” by the medical practitioner which implies a proactive approach rather than simply a doctor being made available to consider any health concerns the detainee or the nurse may raise.

I must consider whether the Claimant is right in contending that failures to comply with Rule 34 at Brook House and Harmondsworth and, at Larne House, the failure to comply with an instruction to similar effect in themselves rendered the detention unlawful. Ms Naik relies on R (Lumba) v SSHD [2012] 1AC 245 as authority for the proposition that breach of a public law duty which “bears on and is relevant to” the detention or continued detention under immigration powers renders the detention unlawful even though, if the error had not been made, the Claimant would still have been detained—or continued to be detained—for good reason. A Claimant in such circumstances is therefore entitled at least to nominal damages and can claim a declaration that his detention was unlawful.

Mr Brown contends that the failures in this case to comply with Rule 34 or instructions to similar effect were not public law errors bearing on or relevant to the decision to detain the Claimant. Lord Dyson JSC in Lumba at paragraph 68 explained that:

“it is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in the detention policy would not found a claim in false imprisonment.”

The issue between the parties before me therefore is whether the error was not one which fell on the wrong side of the line identified by Lord Dyson either because the examination by a nurse was the equivalent of “a decision made by an official of a different grade from that specified” or because in any event the requirement for a physical and mental health examination by a medical practitioner was not something which bore on or was relevant to the detention of the Claimant.

As for the first point it is said on behalf of the Defendant that the non-compliance with Rule 34 at the establishments to which it applied was not material in that shortly after arrival he did have a meeting with a member of the healthcare staff namely a nurse who, it is said, asked exactly the same questions that a medical practitioner would have asked of the Claimant. Rule 34 does not purport to prescribe the details of the physical and mental examination to be undertaken by the medical practitioner and, it is submitted, there is in practice no difference (apart from their formal qualifications) between the examination by a nurse and the type of examination that a GP would have carried out under Rule 34.

Rule 33 (2) requires every detention centre to “have a health care team of which the medical practitioner will be a member which shall be responsible for the care of the physical and mental health of detained persons at that centre”.Rule 33 (3) provides that “[e]ach member of the healthcare team shall (as far as they are qualified to do so) pay special attention to the need to recognise medical conditions which might be found among a diverse population and the cultural sensitivity appropriate when performing his duties”.Thus it may be said that a staff nurse within the healthcare team at a detention centre will be well able to conduct an examination capable of identifying the common medical—including mental health—problems that members of such a population will, perhaps more than the general population, tend to display.

One difficulty with the Defendant’s contention that at Brook House and Harmondsworth there was in effect compliance with Rule 34 save only that the examination was carried out by a nurse rather than a GP is that it is clear from the Defendant’s operating standards seen in the consolidated version of the Detention Services Operating Standards Manual for Immigration Service Removal Centres (of January 2005) that there was in place an instruction that “all detainees are medically screened (this must include an assessment for risk of self-harm/suicidal behaviour) within two hours of admission…”. That cannot be a reference to a Rule 34 examination because it is immediately followed in the document by this:

“As required by DC rule 34, the centre will ensure that arrangements are in place for detainees to have a physical and mental examination by the medical practitioner within 24 hours of their admission…”

Although that instruction does not apply to Larne House, as already mentioned DSO 06/2013 also requires a medical screening within two hours of arrival. It is apparent from the healthcare centre notes at the three establishments that the examinations by a nurse all took place within the two-hour time limit and cannot be treated as the equivalent of a Rule 34 examination. In my view therefore the failure to comply with Rule 34 at Brook House and at Harmondsworth was more fundamental than simply a nurse standing in for the medical practitioner. The error seems to have been due to the drafting of DSO 06/2013 which applies as much to Immigration Removal Centres such as Brook House and Harmondsworth as to a STHF. Annex A of that DSO provides a “Reception checklist” which includes, for healthcare staff: “[h]as the detainee been seen within 2 hours of arrival for an initial health screening” and “[h]as detainee been offered an appointment with the doctor (to take place within 24 hours)” whereas the latter instruction ought to remind healthcare staff of the statutory duty to arrange, and not simply to offer, such an appointment.

The statutory duty did not apply at Larne House and it is impossible to say from the notes whether the Claimant was offered an appointment to see a doctor within 24 hours in accordance with DSO 6/2013 but it can be seen from the nurse’s “INITIAL CONCLUSION” in the clinical notes that there were no “Medical Concerns Identified” and that an “Immediate Full Assessment” was not required. The Claimant in his witness statement does not say whether he was offered the opportunity to see a doctor but he signed a document headed “Healthcare Information” on the day of his admission to Larne House and this included the following information:

“1.

Our staff will ensure that within two (2) hours of admission to the STHF you will be screened by healthcare professional, with your consent.

…

3.Medical and psychological conditions past and current will be recorded.

…

6.

A healthcare professional is available 24 hours a day should you have any healthcare issues arise (sic) or if further assessment is required.

…

9.

You can request an appointment with a healthcare professional of the same gender if required. You may be seen immediately as far as practicable or within 24 hours of the request being made.”

That is of course not an express reference to the right to see a doctor (as opposed to a nurse) within 24 hours of arrival though it comes close.

The Claimant says in his witness statement that he told the nurse at Larne House he felt depressed. That raises an issue of fact between the parties because there is no such reference in the nurse’s clinical notes, a dispute to which I shall return.

As to whether failure to arrange an examination by a medical practitioner as required by Rule 34 automatically renders continued detention unlawful, Haddon-Cave J in R (Belkasian) v SSHD [2011] EWHC 3109 concluded that it did not, Burnett J (as he then was) in EO and others v SSHD [2013] EWHC 1236 (Admin) held that it did and declined to follow Belkasian andHaddon-Cave J in R (DK) v SSHD [2014] EWHC 3257 revisited the issue in the light Burnett J’s judgement in EO and agreed that he had been wrong in Belkasian and held that the failure did have that effect. Finally Blake J in R (LMC) v SSHD 201 EWHCwithout expressly saying so treated the failure as having no consequences for the lawfulness of the detention in the absence of it being demonstrated that such an examination would have probably led directly or indirectly to the claimant’s release. That is a similar case to this one where there was an examination by a nurse and Blake J described the failure to arrange for it to be carried out by a medically qualified practitioner as no more than a “mishap”. Blake J was referred to both Burnett J in EO and Haddon-Cave J in DK though he mentions them only in relation to an issue as to whether the examination by a nurse would satisfy the requirements of Rule 34, holding that it would not.

Mr Brown’s argument is that the approach of Blake J is to be preferred because a failure to comply with Rule 34 is too remote from any decision whether the Claimant should remain in detention to be described as bearing on or being relevant to that question. The required examination by the medical practitioner is concerned with the physical and mental health of the detainee while in detention and under the care of the healthcare staff. The possibility that such an examination might throw up a problem—even one that might give rise to a Rule 35 report (see below)–is too remote a possible outcome to enable the Rule 34 examination to be regarded as bearing on continued detention.

Belkasian predated the decisions of the Supreme Court in Lumba and R (Kambadzi) v SSHD [2011] 1 WLR 1299 SC and for that reason alone may be regarded as unreliable, all the more so because the same judge later reversed his view on the question. However matters are complicated by the fact that Baroness Hale JSC in Kambadzi at para 70 referred with apparent approval to the acceptance by the parties and by the court in another case at first instance founded on breach of Rule 34 (R (D) v SSHD [2006] EWHC 980 (Admin) Davis J [as he then was]) that it “did not render the detention unlawful unless the detainees could show that it would have led to their earlier release”. Lady Hale’s observation was clearly obiter because Kambadzi was not concerned with Rule 34 or Home Office policy in relation to the medical examination of detainees but it is of some significance that no other member of the Supreme Court saw fit to take issue with this analysis.

In resolving this question it is necessary to refer to the underlying rationale adopted by the Supreme Court to public law errors which are material to, and therefore invalidate, the lawfulness of detention.

Lumba was concerned entirely with the initial decision to take the Appellants into detention. In paragraph 65 Lord Dyson points out that there is no room for a “causation test” at the point of deciding whether imprisonment is unlawful because the tort of false imprisonment requires only two elements, the fact of imprisonment and the absence of lawful authority to justify it. In paragraph 66 he says that as a result “[a] purported authority may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised”.

This is straightforward when applied to the initial decision to detain. It becomes much more difficult when considering the alleged failure to release someone who ex hypothesi has up to that point been lawfully detained. The decision to release may engage matters of judgement and discretion, the latter constrained by the Defendant’s published policy statements. The obligation to have a medical examination within 24 hours of arrival at a detention centre imposed by Rule 34 necessarily presupposes the existence of lawful detention at least up to that point. Even in cases where, following such an examination, the medical practitioner complying with his duty under Rule 35 makes a report containing his opinion that the detainee’s health is likely to be injuriously affected by continued detention, release is not then automatic. The report becomes part (albeit a very important part) of the decision making process that must then ensue as to whether nevertheless the detainee should not be released.

This is all very far removed from the situation that prevailed in Lumba and it is a proper question whether it is appropriate to carry over the expression used by Lord Dyson in para 68, which of course should not be read as if in a statute, that “the breach of public law must bear on and be relevant to the decision to detain” beyond such initial decisions and into the area of judgment and discretion whether to release someone who has already been detained.

However in Kambadzi, which had been heard before, but the judgments in which were given after, those in Lumba the complaint was that detention, initially lawful, became unlawful as a result of a failure to comply with a published policy which laid down a requirement for regular detention reviews. This policy was supplemental to the requirement in Rule 9 of the Detention Centre Rules that written reasons for his detention be given to the detainee at the time of his initial detention and thereafter monthly. The Supreme Court held that the failure to carry out such reviews did bear on and was relevant to the continued detention from the time when reviews ought to have been, but were not, carried out and this in itself rendered the detention unlawful. Lord Kerr JSC at para 80 said “[t]he essential question must be whether there is an adequate connection between compliance with the duty and the lawfulness of the detention”.Again the question whether substantial or only nominal damages were recoverable remained a live one and depended on whether the Claimant would have been released if such reviews had been carried out but it was irrelevant to the question whether the detention was unlawful during that period.

What is common to these cases is that the Defendant in whom the discretion to detain was vested had published a policy which revealed not only in what circumstances detention would not be initiated or maintained but also the processes to be followed leading up to the making of such a decision. The Supreme Court was not simply identifying a failure to comply with a statutory duty laid down in the Detention Centre Rules. In Lumba there was no rule relevant to the issues in that case and in Kambadzi the Supreme Court did not identify a breach of Rule 9 as the material breach which rendered the detention unlawful. Indeed Lord Hope DPSC said (at paragraph 16) that, while the Rule 9 requirement to give reasons for continued detention was very important as the detainee needed to know whether he had grounds for an application for habeas corpus or judicial review or to apply for bail on a meaningful basis, “the 2001 rules are concerned with the regulation and management of detention centres, not with the way the discretion to detain is exercised”. Thus Lord Hope preferred to found his conclusion on a breach of the Defendant’s published policy in the Operational Enforcement Manual which included provision for regular detention reviews. Lady Hale agreed that Rule 9 was “of only peripheral relevance”.

Burnett J in EO did not say that a breach of Rule 34 in itself rendered detention unlawful. Indeed he said quite the opposite in paragraph 49 of his judgment:

“The 2001 Rules are concerned with the regulation of the management of detention centres. They have no direct bearing on the power of the Secretary of State to detain. A failure to comply with those Rules does not render detention unlawful; neither does it give rise to a private law claim for breach of statutory duty.”

However he went on to hold that because the Defendant’s policy expressly required such an examination (albeit not directly referring to Rule 34) the failure to follow that policy did have the effect of rendering the detention unlawful.

It may be said that if the Defendant’s guidance in requiring a medical examination within 24 hours does no more than remind detention centre staff of the need to comply with a statutory duty which already exists and because there is nothing in the guidance to suggest that the Secretary of State, in reliance on the performance of that statutory duty, has decided to take a less pro-active role in identifying cases that may be unsuitable for detention, the published policy adds nothing to the statutory duty: if breach of the statutory duty does not itself render the detention unlawful it is difficult to see why simply repeating in guidance to staff what the statutory duty involves should make any difference. Indeed it might be said that the guidance has added an additional safeguard for detainees in requiring the examination by a nurse within two hours of arrival in detention. That requirement was complied with at all three centres in this case.

It seems clear to me that what is required is something in guidance or policy which goes beyond a simple statement of the statutory obligations. In para 42 of his judgment in EO Burnett J said, after reviewing the judgments in Lumba and Kambadzi and noting Lady Hale’s inclusion of a failure to conduct a Rule 34 examination as a case where the detention is not thereby automatically rendered unlawful: “[a] failure to comply with the 2001 Rules does not without more render subsequent detention unlawful but it may do so if the Rule is reflected in the Secretary of State's policy and the Lumba test is met”. It seems to me that he must have meant that there must be something in the policy which indicates a particular approach to continued detention which could only be effectively put into practice if the rules are followed.

Burnett J found that in policy and guidance which was “redolent with references to the rule 35 report being the trigger which leads to consideration whether a detainee should be released”. As I understand it his approach was along these lines: although the statutory duty to arrange for such a medical examination did not itself directly relate to the question whether the detainee should continue to be detained, the published policy of the Secretary of State which in effect reminds officials of the need to comply with the statutory duty, itself explains the centrality of such examinations to the continued exercise of the power to detain because the Secretary of State relies upon such examinations triggering, where findings require it, Rule 35 reports (which of course do expressly address part of the question whether a detainee should remain in detention). It is nothing to the point that in most cases no doubt the Rule 34 examination will not result in a Rule 35 report. It is the reliance upon that process to identify those cases which require medical input before it can be seen whether the case falls within a category of case which the Defendant’s policy requires should only be detained in very exceptional circumstances that renders the requirement in policy and guidance to ensure that the detainee is seen within 24 hours by medical practitioner as bearing on and relevant to continued detention.

Rule 35 provides as follows:

“Special illnesses and conditions (including torture claims)

(1)

The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

(2)

The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(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.

(4)

The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5)

The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”

It can be seen that a Rule 35 report will be required not only in cases where continued detention might adversely affect the health or safety of the detained person (sub-rules (1) and (2)) but also in cases where there is evidence of the detainee having been a victim of torture. That would include cases where the detainee was nonetheless fit to be detained. Nevertheless it was the policy of the Secretary of State that, where there is independent evidence that they have been tortured, a person would remain in detention only in very exceptional circumstances: see Para 55.10 of the Enforcement Instructions and Guidance (EIG) (in the form it took before its replacement in September 2016 by the “Adults at Risk in Immigration Detention” Guidance).

This is supplemented by DSO 17/2012 “Application of Detention Centre Rule 35” which states in para 4 that it:

“… sets out Home Office policy regarding:

a)

The preparation of Rule 35 reports by medical practitioners; and

b)

The process to be followed by Home Office staff in response to a Rule 35 report.”

This DSO is thus addressed to both the medical and non-medical staff at detention centres and its focus is the reporting by medical practitioners of cases of possible torture and the appropriate response of Home Office staff to such reports. Para 55.10 EIG insofar as it relates to cases of torture is expressly referred to. It can thus be seen that there is a very clear link made between the operation of the policy that, save in very exceptional circumstances, torture victims would be released and the making by medical practitioners of a Rule 35 report in such cases. For that reason the failure to follow instructions to ensure that an examination by a medical practitioner takes place within 24 hours of arrival potentially impairs the process whereby torture victims are identified and released. As Burnett J noted in EO:

“The Rule 35 report, although it can come at any time and result from information or an examination which post-dates initial reception in the detention centre, is likely in many cases to be a product of the initial examination at which physical and mental health problems may well be revealed as well as issues relating to torture.”

Thus the failure bears on and is relevant to continued detention rendering it thereafter unlawful in the same way that the failure to carry out detention reviews as required by Home Office policy rendered the detention unlawful in Kambadzi. In my view the approach of Burnett J in EO is to be preferred to the apparent approach of Blake J in LMC (I say apparent because it is not clear that he was ever invited to make findings to whether the detention was unlawful regardless of whether, applying a causation test, the Claimant could recover substantial as opposed to nominal damages).

Ms Naik rightly in my view points to the apparent inconsistency between the Defendant’s argument that the failure to arrange for a Rule 34 examination was not a public law breach bearing on and relevant to the continued detention of the Claimant and, in Hossain, the Defendant’s argument, accepted by Cranston J, that the safeguards built into the system by, amongst other things Rules 34 and 35, ensured that detainees who ought to be released were released and thus enabled it to be said that the DII process was not systemically unfair.

The five claimants in EO each claimed to have been victims of torture. Here that is not alleged. Does that make a difference? On Burnett J’s reasoning it does not: that would be to introduce into the question whether the detention was justified in law a causation argument with the benefit of hindsight. Though the causation test is irrelevant to the question whether the detention is unlawful there still has to be an answer to the anterior question whether the public law error bears on and is relevant to the continued detention or in Lord Kerr’s formulation there is “an adequate connection between compliance and the lawfulness of detention” which means there must be some analysis of the character and potential effects of the breach in the context of the particular case. If a detained person alleges that he has been tortured the importance of the medical examination to continued detention is obvious. But does that mean that in every case, whether or not there are in fact or alleged to be any matters which might prompt a Rule 35 report, the detention automatically becomes unlawful on the expiry of the 24 hours without a medical examination? What if Rule 34 is belatedly complied with 36 hours after admission? Is the detention unlawful only for the intervening 12 hours? It may seem a little odd to characterise every detainee as being unlawfully detained in an institution where, for example, a thorough and professional examination is undertaken within 24 hours by an experienced nurse but not a doctor regardless of whether it would have made any difference if a doctor had been performing the same role. Nevertheless because there will be many cases where the detainee himself does not realise the need to raise with non-medical staff matters that may improve his chances of being released not only in cases of torture a medical examination within 24 hours is always potentially important to the continued detention of anyone detained in an immigration removal centre and therefore the failure to arrange one as required will always be regarded as material to the lawfulness of the detention thereafter.

In my judgment therefore the Claimant was unlawfully detained from the expiry of 24 hours after his arrival at Brook House. That must extend to the entirety of his detention at Harmondsworth (in other words there was not a revival of lawful detention for the first 24 hours at that establishment). The difficult question whether a late compliance with Rule 34 revives the lawfulness of detention does not arise on the facts here. It is true that he was seen by a doctor on 11 February but this was at his request for a specific complaint of flu-like symptoms and there is no suggestion that the doctor took the opportunity to carry out a full physical and mental examination. As for Larne House the policy guidance is for a medical examination only if the detainee requests it. There is therefore no equivalent breach giving rise to the automatic invalidity of continued detention.

I need to consider Ground 3 before answering the question whether, if a physical and mental examination had been carried out within 24 hours of arrival at Brook House or Harmondsworth, the Claimant’s detention would nevertheless have continued until 24 February.

Under this ground the complaint is that the Defendant failed to arrange an appointment with a doctor (alternatively unduly delayed in doing so) when he requested one for the purposes of a possible “Rule 35 assessment”. In view of my conclusions in relation to the failure to comply with Rule 34 this adds nothing to the argument that the detention was unlawful though it may be relevant when I come to consider the issue whether substantial damages may be recovered by the Claimant.

His case is that he made such a request on 19 February. It is apparent that the Claimant made this request at the suggestion of his new solicitors Duncan Lewis who were on the scene by then. In a witness statement Shalini Patel of Duncan Lewis says that a caseworker at that firm, Lauren Mayer, advised the Claimant on 19 February to visit the healthcare department and request a Rule 35 report. She stressed to him that it was important to mention that he was feeling depressed.

Entries in the computerised record disclosed by the Defendant include a request on 19 February to see a nurse timed at 10.45 with, in the box for “Details”, the words “Rule 35”. At the foot of this entry also dated 19 February and timed at 16.32 there is “Request completed”. It is unclear what that means and there is nothing in the clinical notes to suggest that he was actually seen on that day by a nurse or a doctor. The Defendant does not suggest that he was. Curiously Ms Maher in her witness statement says that her first attendance on the client was on 22 February and she does not refer to otherwise communicating with him on 19 February, that he reported that he felt depressed or that she told him to request a Rule 35 assessment. The Claimant himself in his witness statement does not say anything more than that he requested a Rule 35 assessment. In particular he does not say that he explained why he wanted the assessment namely that he was depressed. The computerised record also has an entry which states that the Claimant requested to see a doctor at 14.38 on 20 February and this is noted as “request completed” at 14.47 on 22 February. Again however there is nothing in the clinical notes to correspond to this entry. It is difficult to know what to make of these apparent discrepancies between different parts of the disclosed records. It seems likely that he was seen by someone in the healthcare department on 22 February but for some reason the relevant clinical note has not been located or disclosed otherwise it is difficult to see what the entry on that day could mean. On the other hand in relation to the request for a Rule 35 assessment it seems unlikely that the Claimant was seen on the very same day. In his witness statement he says in relation to his request made on 19 February:

“I was told I would be put on the waiting list and that it can take up to two weeks for the assessment to take place.”

On the current state of the evidence my finding must be that no examination by a medical practitioner (or indeed by a nurse) for the purpose of a Rule 35 assessment was carried out on the 19 February or at any time before he was released five days later. On the other hand I do not have the evidence to make any findings as to what if anything healthcare staff were told as to why he wanted such an assessment.

There is of course no such thing as a “Rule 35 assessment”. Rule 35 is a requirement imposed on the medical practitioner to report any of the matters referred to in the rule which come to his attention at any time and by any means.

In Hossain Cranston J had some evidence from the Defendant as to the role of Rule 35 and reports made under it:

“118.

In his statement, Mr Barrett opines that concerns relevant to Rule 35 may arise at any point of a person's detention, although it is most likely that they will be raised at the initial Rule 34 health screening. In Mr Barrett's view this does not rely on the detained person knowing about Rule 35 or requesting a specific Rule 35 examination. Mr Barrett states that the record number of Rule 35 reports in 2015 (2,038) suggests a high level of awareness of its importance among healthcare staff.”

On 22 February Duncan Lewis in a “letter before action” to the Home Office referred to the Claimant having requested a Rule 35 assessment on 19 February and being told it could take up to two weeks for the assessment take place. In the Defendant’s reply to Duncan Lewis dated 23 February 2016 there is this:

“You have requested that a Rule 35 report should be prepared by Healthcare staff in regard to your client’s application prior to his asylum interview. You will be aware that every applicant is seen by member of the healthcare staff within 24 hours of their arrival and during the induction process the nurse ascertains from the person whether they have any medical condition that might impact on their detention or if they claim to have been victims of torture. Under the Rule 35 procedures of the Detention Centre Rules, the Healthcare staff are legally obliged to inform the Home Office if the person is likely to have been a victim of torture. No such report has been received in relation to you (sic). Nevertheless if your client feels this is necessary, it is open to him to approach Healthcare staff for their advice and assistance in this matter.”

That is clearly an inadequate response not only because it was not being said that the Claimant had been a victim of torture but also because it ignores the fact that Duncan Lewis had pointed out that the Claimant had already requested a Rule 35 assessment but had been told he would be put on a waiting list.

There is authority that the Defendant will be vicariously liable for negligence on the part of the healthcare staff: GB v SSHD [2015] EWHC 819 (QB) Coulson J at para 53. However that was a case concerned with a private law claim in negligence. Not every failure to comply with a tortious duty of care owed to a detained person in an Immigration Detention Centre will translate into a public law error—at any rate it will not necessarily be one which is material to the decision to maintain detention. In my judgment the absence of evidence upon which I can act to show that healthcare staff were given any reason why an assessment for the purposes of a possible Rule 35 report should be expedited means I do not have the material to come to a conclusion that the delay between 19 and 22 February without such an assessment having been carried out disclosed negligence or a failure amounting to a public law error on the part of the Defendant material to the continued detention of the Claimant for those three days so as to render that part of his detention unlawful. The position is different following receipt of the letter from Duncan Lewis on 22 February because reasons were given but as he was released only two days later I do not have the basis for saying that that period of delay disclosed public law error material to the continued detention. It might well have been arguable that requiring the Claimants to wait for two weeks (as he says he was told he might have to) would amount to such error but that became academic as he was released five days after the initial request was made.

I need now to consider whether, if he is to be entitled to more than nominal damages for the failures to arrange for Rule 34 examinations by a medical practitioner within 24 hours of arrival at Brook House and at Harmondsworth, he would have been released either from Brook House around 24 January (avoiding an additional month’s detention) or, failing, that from Harmondsworth at around 5 February (avoiding an additional 19 days’ detention). I can consider this issue before I consider Ground 1 of this challenge because it seems to me that there is no basis for an assumption that such medical practitioner would have been aware from the DAC casework staff of the nature of the asylum claim being pursued (and as I find below the claim would not have been made by the time that a Rule 34 examination should have taken place at Brook House). The Claimant might of course have volunteered to the doctor the facts which form the basis for his asylum claim but that is another matter.

The burden of proof on this causation question is on the Claimant but even if the burden rested on the Defendant I would have no hesitation in coming to the conclusion that I do namely that nothing would have appeared following any such examination by a medical practitioner that would have led to a report whether under Rule 35 or by way of more informal disclosure to the DAC casework staff to the effect that for medical reasons the continued detention should be reconsidered. In general healthcare staff will treat anything revealed in a medical consultation as confidential (assuming it does not engage the reporting requirement in Rule 35) though I assume that detention staff may become aware for example that medication has been prescribed.

The reason I can be confident about this conclusion is that there is sufficient in the clinical record following the screening interviews by a nurse at each of the three establishments to reveal in general terms what a doctor would have discovered following a Rule 34 examination. As I have said the Detention Centre Rules do not purport to prescribe in detail what such an examination should consist of beyond saying that it should be a physical and mental examination by the medical practitioner. It is apparent from the clinical notes made by a nurse at Larne House that he was asked about but disclosed no past medical history, that he said he had no history of mental illness or treatment by a GP or community mental health team or in hospital for such illness and that no medical concerns were identified. He denied any history of torture. A mental state assessment was carried out which included references to general appearance, behaviour and attitude, eye contact, concentration and function all of which were normal. He was weighed and his blood pressure, pulse rate and other vital signs were tested. It was concluded that he was fit to be detained and there was a low risk of self-harm. The nurse’s manuscript entry says that he was calm and cooperative and did not claim any medical issues.

At Brook House a staff nurse on 23 January completed entries on a computer which appear to show that she was following a similar template as the nurse at Larne House. Again nothing was disclosed.

Again on 4 February at Harmondsworth a staff nurse made entries on a computer which followed a similar template with the same results.

Given that these three staff nurses were employed at separate establishments in healthcare departments devoted to the initial screening of immigration detainees amongst whom can be expected to be many who go on to claim asylum it is reasonable to conclude that their examinations of the Claimant, brief though in each case they were, will have matched closely the examination that would be expected of a medical practitioner under Rule 34 and there is no reason to conclude that he or she would have been given any different answers to questions about mental health issues or discovered any matters of concern.

There is, as already mentioned, an issue of fact raised in the Claimant’s witness statement in which he says that he mentioned to the nurse at Larne House that he felt depressed. He says he said the same to the nurses at Brook House and Harmondsworth on 23January and 4 February. Although the Claimant has not been cross-examined on these assertions it seems to me that I must reject them as unreliable without necessarily concluding that the Claimant is being deliberately untruthful. He may well be confusing in his recollection what he did tell detention staff which included a reference at the first 24 hour induction interview which took place on 23 January 2016 at Brook house at 20.10 when, in answer to the question “Have you ever suffered with depression?” he said “Yes” and the note says “Sometimes-- not on any meds”. That was part of an interview concerned with possible suicide and self-harm issues. There is also a note “feels low and frustrated” against the box “Mood/Demeanour Upon reception”. In contrast in the clinical notes made by the three staff nurses at three separate establishments there is no similar entry. It is simply not credible that three nurses could all have failed to note such a report and then to make an entry to the effect that there were no mental health issues. It is also significant in my view that when he saw a nurse on 10 February and a doctor on 11 February with a complaint of flu-like symptoms he did not mention feeling depressed. It is clear to me that no mental health issues were reported even when he was asked about them by the nurses.

I accept that a doctor might have teased out of the Claimant more of his story which was later given to Dr Rob Tandy a consultant psychiatrist who has prepared medic-olegal reports in this case on instructions of the Claimant’s solicitor. This may have included distress and concern over uncertainty about his sexual identity and orientation but that would have depended upon the Claimant volunteering some information so as to prompt such further questioning. That would have had to have come from the Claimant as the DAC caseworker would not have passed on to the healthcare department what was said in the asylum screening interview even if—as is alleged by the Claimant it should have been—that screening interview had taken place before 4 February. I find that he probably would not have volunteered anything of that sort.

The Claimant relies upon the reports of Dr Tandy. In his supplemental report of 14 July 2017 Dr Tandy makes a diagnosis of a “moderate depressive episode” which he concludes was the cause of “a long-standing (at least two year) history of sustained low mood, loss of interest and enjoyment and reduced energy in addition to having an impact on the claimant’s self-esteem and self-confidence”. He offers the opinion that this amounted to “a serious medical condition”. This is said to demonstrate that state of the Claimant’s mental health was, at the times he should have been seen by medical practitioners at Brook House and Harmondsworth, such that he should have been regarded as a person considered unsuitable for detention and therefore someone who should be detained “only in very exceptional circumstances” applying paragraph 55.10 of the Enforcement Instructions and Guidance (EIG). In fact the relevant parts of paragraph 55.10 refer to “those suffering from serious medical conditions which cannot be satisfactorily managed within detention” and “those suffering from serious mental illness which cannot be satisfactorily managed within detention”. Dr Tandy does not address the second part of each which is whether the condition or illness could not be satisfactorily managed within detention. Nor does he use the expression “mental illness” perhaps advisedly because his diagnosis is of a “moderate depressive episode”.

In R (Das) v SSHD 2014 1 WLR 3540 the Court of Appeal said that paragraph 55.10 of the EIG should not to be subjected to fine analysis or interpreted as if it was a statute and “those suffering from serious mental illness which cannot be satisfactorily managed within detention” should not be read as confined to those who would require in-patient treatment or the use of powers under the Mental Health Act. It is however clear that there must be something about the mental illness the satisfactory management of which would be significantly impaired by continued detention. The same must apply to the wording of Rule 35 and the likelihood of the detainee’s mental health being “injuriously affected by continued detention or the conditions of detention”. That does not necessarily mean that treatment such as drug therapy cannot be given in that setting: it would include the possibility that the very fact of detention or the interaction with others with whom the patient is detained, might itself lead to a deterioration in, or prevent or slow recovery from, a serious mental illness. However nothing has been put forward on behalf the Claimant as to why that might have been the case here. As noted below the Claimant at no point expressed any concerns to detention or healthcare staff about having to continue mixing with other detainees. At its highest it may be said that when asked at his asylum screening interview on 5 February whether there was any particular reason why he should not continue to be detained while his claim was considered including his “personal circumstances, health or any other relevant factor”, he said “Under pressure if release me I can feel relaxed and you can interview me in a better way”. That comes nowhere near to supporting a case that he would probably have said something to a doctor conducting a Rule 34 examination that would have disclosed problems indicating a likelihood that his continued detention would injuriously affect his health.

The Claimant does not have permission as required by CPR Part 35 to rely upon the reports of Dr Tandy and the Defendant has not accepted that such permission should be given although it seems to me the Defendant’s objection should have been taken some time before the substantive hearing and the Claimant’s advisers were understandably led to believe that the Defendant’s objection was more to the weight to be attached to, and reliability of, Dr Tandy’s opinions rather than to their admissibility. I have not therefore refused to consider his reports but I do not regard them as providing any assistance to me in resolving the causation issue. Dr Tandy saw the Claimant twice for interviews which lasted in total for some 4 ½ hours. By the time he saw him the Claimant’s asylum interview had taken place, he had legal representation and his appeal to the First-tier Tribunal was being progressed. Clearly the issues surrounding the effect on the Claimant’s mood and functioning resulting from his recent history of exploring his sexual identity and orientation (assisted, from November 2016, by regular attendance at an LGBT Centre in Leicester) had by then been thoroughly explored and ventilated.

In contrast a medical examination under Rule 34 would have been very much shorter and, if it lasted longer than the 10 minutes or so allowed for the screening examination by nurses (and I do not hold that it should necessarily have done so in a case where the examination and interview does not raise anything of apparent concern whether prompted by the doctor or volunteered by the detainee), it would have been a very different type of examination from that conducted by Dr Tandy specifically for the purpose of medic-olegal reports. Dr Tandy is a consultant psychiatrist. The medical practitioner at an Immigration Removal Centre is someone with the qualifications of a general practitioner, understandably as the health problems that may be encountered amongst detainees will be many and various.

In addition in a case where, as is not disputed, the Claimant had never received any treatment for depression, even if the Claimant had volunteered that he suffered from low mood or anxiety such that the medical practitioner might have concluded that this was a case of clinical depression such a finding would no doubt be nothing out of the ordinary in the setting of a detention centre and would at most have resulted in the doctor considering whether to prescribe some antidepressants. There is simply no basis for concluding that the doctor would have felt obliged to make a Rule 35 report or to have volunteered that this was a case of serious mental illness let alone one that could not be satisfactorily managed within detention.

Following sight of this judgment in draft Ms Naik and Ms Brewer pointed out that Dr Tandy did address the question whether a report by a medical practitioner was required by Rule 35 (where the detainee’s “health is likely to be injuriously affected by continued detention or any conditions of detention.”). In his second report he states: “Therefore in my clinical opinion, the detention was injurious to his mental health and was a barrier to an improvement in his symptoms which could have been achieved were he in receipt of treatment and support in the community.”. That however is his retrospective assessment of how the continued detention may have affected the Claimant and not of what would or should have been apparent to a general practitioner conducting a Rule 34 examination. In light of what he told others the Claimant would probably not have volunteered anything beyond feeling a bit low while also stating that he had not been receiving any form of treatment for depression. Such treatment could of course have been given in detention and Dr Tandy’s reference to “support in the community” is presumably, given that the Claimant had no family ties in the UK, to the type of support the Claimant later received from the LGBT Centre. In my view this opinion cannot alter my assessment that the Rule 34 examinations if carried out at Brook House or Harmondsworth would not have led indirectly to the Claimant’s earlier release.

For those reasons the Claimant is not entitled to substantial damages for false imprisonment as a consequence of the failure to comply with Rule 34 at Brook House and Harmondsworth.

I can now consider the complaint under Ground 1 in the light of my conclusion in relation to Grounds 2 and 3. This is a complaint that the Defendant failed properly to apply her own guidance and policy to the detention of the Claimant as someone seeking asylum and basing his claim on issues of sexual identity or sexual orientation.

Having concluded above that there would have been no matters brought to the attention of those concerned with the Claimant’s continued detention suggesting that he might be within the category of vulnerable persons who should remain detained only in very exceptional circumstances as required by 55.10 of the EIG then in force I need to consider this ground independently of any health issues relevant to continued detention. The Claimant’s case under this ground must therefore be confined to his contention that his continued detention was inappropriate in the light of what are said to be the relevant policies and guidance because of the nature of the asylum claim which he had intimated.

The Claimant‘s case put by Ms Naik is that having indicated in his asylum screening interview that he was gay, this was a case in which it should have been obvious that the Claimant would not be capable of being removed to Pakistan in the near future. His claim would have to be investigated and considered and, if it was refused, he was bound to appeal. In such circumstances the Defendant would not certify his asylum claim as “clearly unfounded” under section 94 of the Nationality Immigration and Asylum Act 2002 requiring him to leave this country before pursuing such an appeal. This can be said confidently, submits Ms Naik, because no such certification followed the refusal of his claim in July 2016 and in any event the Defendant’s own policy in relation to such cases and returns to Pakistan is that such claims following refusal are not so certified. The Claimant’s case is that this is the situation that should have been apparent from the date of his screening interview which took place on 5 February 2016 but it should have been apparent much earlier because there was no reason to delay his screening interview until that date.

As to that there is another dispute of fact namely whether the asylum claim was first intimated on 20 January or only on 29 January. The sole basis for saying it was notified on the 20 January is a Fax from a Northern Ireland solicitor Mr McQuoid sent on 29 January at 18.08 to a fax number which I take to be a Home Office number. The fax is a copy of a printed out email also dated 29 January at 4.46 PM to an email address which I also take to be a Home Office email account. That printed email refers to an attachment “FOAASYLUM [ZA].pdf”. The email says:

“[W]e refer to the above and enclose herewith signed form of authority for our above named client. Kindly note he wishes to claim asylum. We believed we had forwarded this F08 enforcement on 20 January 2016 however it has come to our knowledge you do not have us on record for [ZA].”

I am invited by Ms Naik to infer from that that a claim to asylum was intimated on 20 January. The attachment to that email (if it was ever also sent by way of Fax) is not in the possession of the Defendant nor has the Claimant been able to recover it from Mr McQuoid or any earlier document that might been sent by him, despite the latter being his former solicitor. In my view the Claimant fails to prove—and on this point it seems to me the burden is on him—that the Defendant was notified of a possible asylum claim any earlier than late on 29 January. Apart from anything else it is clear that the Claimant would not have remained at Larne House for three further days after such a claim had been mentioned. His transfer on 23 January to Brook House was clearly on the basis that he was about to be removed once an emergency travel document could be obtained from the Pakistan High Commission (a “face-to-face interview” with someone from the High Commission is recorded as having been scheduled for 1 February).

That still leaves a question as to why it took six days for the initial asylum screening interview for the purpose of which he was apparently transferred to Harmondsworth on 4 February. There is nothing in the Defendant’s instructions or guidance as to how quickly a screening interview should take place (as opposed to the full interview which is expected to take place early enough for a decision on the asylum claim to be made within 28 days: see para 24 of the DII). I have not been provided with any evidence one way or the other as to what happened in this case or what happens in many other cases but it seems to me that I can readily infer that the Defendant will then have been receiving many such claims to asylum from persons already detained—indeed I have some information about that from the evidence before Cranston J in Hossain where in paragraph 102 he records the fact that in a six-month period, from July 2015 to January 2016, 1,413 claims for asylum were accepted for consideration in detention (which implies that a greater number were initially made in detention but some were then released following the asylum screening interview). On the evidence before me I cannot find that there was any undue delay in carrying out this initial screening interview.

There is no evidence that anything was said by the Claimant or anyone on his behalf about the nature of his asylum claim before 5 February and in my judgment there was no obligation on the Defendant to ask for earlier details: indeed it can readily be seen that such informal enquiries might be objected to because of the risk of unfairness if any adverse answers given to questions put in such an informal way are then relied on by the Defendant to refuse the claim.

There are essentially three ways in which it is said that the Defendant’s officers made material errors in applying the Defendant’s policy and guidance to the Claimant’s case following the asylum screening interview (leaving aside points relating to his medical status which I have already rejected). First it is said that this was clearly a case of complexity and one where, following a refusal, the Claimant was bound to appeal. Second it is said that there was no proper consideration of his suitability as a gay man to be detained. The third way it is put is that, because of the tentative way in which the basis for his claim to asylum was raised during the asylum screening interview and his statement which I have already referred to that he would be under less pressure if released and would be able to be interviewed in a better way, it should have been realised that this was a case where at the very least consideration should be given to his release so that he could put forward his asylum claim effectively when it came to the full interview.

The first point really falls under Ground 4 (the Hardial Singh ground) and I will consider it when I get to that ground. There is nothing in my view in the second point. There was never any suggestion made by the Claimant that he was concerned because of his perceived sexual orientation that he might be at risk: on the contrary he said at the asylum screening interview that he felt safe in the accommodation. In the first 24 hour interview form the answer “No” is given to the question “Do you have any issues or concerns living within the multi-cultural population at Brook House?”. In my view there is no possible basis for saying that simply because he was or may have been disclosing that he was gay that in itself ought to have been considered a material matter in deciding whether he should remain in detention. This case is very far removed from the case considered by the ECtHR in OM Hungary [2016] ECHR 621 which is relied upon by Ms Naik. In that case the asylum seeker had told the relevant authorities in Hungary that because of his sexual orientation it was difficult for him to cope with the asylum detention for fear of harassment. It is true that the Strasbourg court found a violation of Article 5 of the European Convention even in relation to the period before that disclosure was made but it seems implicit in the judgment that there was sufficient material for the Hungarian authorities to be aware that he might be someone at risk from the unwanted attention of other detainees. Here the indications were that the Claimant was not at risk and it has not been suggested that in the event he did suffer any harassment or ill-treatment from others during his detention. He does say in his witness statement that he was concerned that others from a similar cultural and religious background as himself holding adverse views about homosexuality might find out about his asylum claim and if that happened his family (who were unaware of his sexual orientation) might find out and he would be ostracised and might be hurt. It has to be said that there is nothing in the contemporaneous record to suggest that he had such concerns (quite the opposite) and it seems to me that the Defendant’s detention staff were entitled to proceed on the basis that details of the asylum claim would not become known to other detainees unless the Claimant chose to tell them. He would simply have been one among many overstayers awaiting removal.

As to the third point complaint is made that in none of the documents recording the decisions to maintain detention including the detention reviews is the nature of the asylum claim considered or any reference made to the DII or Interim Process Map where they refer to the difficulty detainees may have in disclosing or articulating their sexual orientation claims and the Defendant has provided no evidence that these policies were even considered. This is said to be a material error because EIG 55.3 required caseworkers to consider alternatives to detention and that can only properly be done in the light of all relevant considerations including such difficulties.

There is a difference between the parties as to what are the relevant materials which lay down policy and guidance relevant to the claimant’s detention. All references in this judgment are to policies and guidance in place in January and February 2016, some of which have since been revised or replaced.

Ms Naik says that officials in the Detained Asylum Casework team were obliged to have regard to what she refers to as the “rubric” of policies referred to by Cranston J in Hossain which, in addition to Chapter 55 of the EIG, include the DII, a document entitled the “Interim Process Map” and the “Asylum Policy Instruction: Sexual Identity Issues in Asylum Claims”.

Mr Brown submits that the relevant decisions about continued detention in this case were constrained only by the guidance in Chapter 55 of the EIG and that the other documents referred to are not relevant because they provide guidance as to how asylum claims are to be considered and in particular how interviews should be conducted. That has nothing to do with the question whether the asylum seeker should continue to be detained. Chapter 55 contains everything necessary (including applying decisions of the courts) that the officers concerned in decisions about detention and continuation of detention needed to exercise such powers in a consistent and lawful manner. This is the published policy which relates to the detention of asylum seekers.

In my view the difference between the parties on this point is more apparent than real. Mr Brown is clearly right in saying that the guidance in relation to the question of detention is contained in Chapter 55 and the other documents relate to the consideration of, and decisions on, substantive asylum claims. The DII at para 10 requires the NRC gatekeeper or NRC hub staff to review cases of detention where the individual claims asylum whilst in detention pending removal in accordance with Chapter 55 of the EIG and paragraph 13 expressly refers to EIG 55.8. Similarly the Interim Process Map requires the caseworker to keep detention under review in accordance with the general criteria set out in Chapter 55 of the EIG. It is clear therefore that there is no separate policy or guidance dealing with the continued detention of those claiming asylum. On the other hand, insofar as there are references in those other documents which provide insights into, for example, how genuine asylum claimants may have difficulty in articulating their claims, particularly those based on sexual identity or orientation, those insights should not be ignored if they have a bearing on any decision whether the detention should be continued, for example where it may shed light on the complexity of the claim and therefore the time that may be required to resolve it.

In addition whatever the relevant guidance may say the Defendant is required to make reasonable enquiries about matters that may be relevant to continued detention rather than simply considering anything that the Claimant may volunteer. This is the principle laid down in Secretary of State for Education and Science v Tameside MBC [1977] A.C. 1014 which in this context, as Haddon-Cave J said in DK, means that “the decision-maker had to take reasonable steps to inform him or herself sufficiently to be able to make an informed decision”. However as Mr Brown points out there is little more that can be done in a case such as this beyond asking the detainee whether there are any matters of concern such as medical matters which he wishes to raise. Such questions need to be structured so as to avoid important areas being overlooked and it seems to me that Chapter 55 of the EIG requires the caseworker to do exactly that.

I have already referred to paragraph 55.10 of the EIG and concluded that the claimant’s case did not fall within it. Other parts of the EIG which it is common ground were potentially relevant to this case are as follows:

“55.1.1

General

The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate:

•

to effect removal;

•

initially to establish a person's identity or basis of claim; or

•

where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.

[…]

55.1.3

Use of detention

General

Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted if that is likely to be protracted and/or there are no other factors present arguing more strongly in favour of detention. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who does not and is removable.

[…]

55.3

Decision to detain (excluding criminal casework cases)

1.

There is a presumption in favour of temporary admission or temporary release - there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.

2.

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

3.

Each case must be considered on its individual merits…

55.3.1

Factors influencing a decision to detain

All relevant factors must be taken into account when considering the need for initial or continued detention, including:

• What is the likelihood of the person being removed and, if so, after what timescale?

• Is there any evidence of previous absconding?

• Is there any evidence of a previous failure to comply with conditions of temporary release or bail?

• Has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry).

• Is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave etc).

• What are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?

• What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?

[…]

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

In addition paragraph 55.1.4.1 effectively sets out the Hardial Singh principles and paragraph 55.8 requires detention reviews at specified intervals and requires that:

“At each review, robust and formally documented consideration should be given to the removability of the detainee. Furthermore, robust and formally documented consideration should be given to all other information relevant to the decision to detain. Additional reviews may also be necessary on an ad hoc basis, for example, where there is a change in circumstances relevant to the reasons for detention.”

Ms Naik additionally relies on the DII which in Section 3 states that the DAC caseworker who must review detention inter alia after an asylum screening interview has been conducted because he or she “should be in a better position to decide whether it is likely that the individual can be removed within a reasonable time, bearing in mind the nature of the asylum claim and all the circumstances of that individual”.

In addition she relies on the Interim Process Map for cases that are processed in detention paragraph 3 of which provides that “[p]articular care must be given to applicants who may, due to their particular circumstances, require considerations in relation to rescheduling interviews, extending timescales for the submission of representations or in some cases release from detention”.

The Process Map states that it must be read in conjunction with, amongst other things, the guidance on sexual identity issues in the asylum claim, i.e. the Asylum Policy Instruction “Sexual Identity Issues in the Asylum Claim”. Its stated purpose is the giving of instruction as to how caseworkers should conduct asylum interviews in claims based on sexual identity. It is therefore not concerned with questions about whether such an asylum seeker should be detained. This guidance includes warnings of the need to avoid stereotyping the behaviour or characteristics of lesbian gay or bisexual persons and in particular notes:

“that some individuals may hold a completely different perception of their own sexual identity from those implied by the term LGB or may be unaware of labels used in Western cultures. They may be unwilling to use the labels used in their language.”

In section 3 there is this:

“Some LGB people may originate from countries in which they are made to feel ashamed, humiliated and/or stigmatised by their sexual identification. In response to societal pressure, explicit or implicit hostility and discrimination, and/or criminal sanctions, many LGB claimants will have kept aspects of and, sometimes large parts of their lives secret some will have, in addition to hiding their identity, evaded detection by engaging in a lifestyle which conforms to normative cultural heterosexual stereotypes… Discussing matters such as sexual identity may be unfamiliar to some people and in an official context such as the asylum interview, may prove additionally daunting. Some LBG [sic] asylum seekers may struggle to talk openly about their sexual identification due to feelings of shame, painful memories or cultural implications, and may find it difficult to establish trust with an interviewing officer—this may help to explain why they may appear to be evasive.”

In addition having noted that “when the claimant is in the process of coming to terms with his or her identity, or when they fear openly expressing their sexual identity, they may be reluctant to identify the true extent of the persecution suffered or feared” the guidance required that caseworkers and interviewers should ensure that an open and reassuring environment is established to help build trust between the interviewer and the Claimant and that assurances that information will be treated in confidence will be given.

At his initial interview on arrival at Larne House it was established that the Claimant was single and not in a relationship. He did not have any children or any family life in the UK. He said he did not take medication for anything and did not have any medical conditions. Included in the notes of his interview is this:

“I asked why he had not applied for further leave in the UK or returned home. He stated that he had not been supported by his college and that he did not want to return home because life is difficult in Pakistan because there is no work. He prefers to live in the UK. I asked if there was any other reason he did not want to return to box on and he said ‘no nothing’. No HR issues raised when prompt/opportunity provided.”

A Detainee Risk Assessment was carried out on 19 January which revealed no matters of concern. In particular there was no history of psychiatric illness or medical needs or concerns. He was not on medication and there were no “issues relating to conflict with other cultures or nationalities”.

On 20 January a 24-hour detention review was completed. This includes the following:

“He speaks and understands English very well. I have explained to him that his student visa expired in August 2012 that he made no application for further leave beyond that. He was served papers yesterday and detained pending his removal UK. He has accepted all of this and appears to be resigned to returning to his home country.”

At Brook House there was a first 24 hour interview with an officer who was given the answer “No” to the question: “Do you have any issues or concerns living within the multicultural population at Brook house?”

It is clear therefore that facts upon which the later asylum claim were based were not mentioned or even hinted at until the screening interview on 5 February which I have held was not unduly delayed. The only barrier to his removal appeared to be the need to obtain an emergency travel document. He was transferred to Brook House when it was arranged that someone from the Pakistan High Commission would see him on 1 February for the purpose of supplying the relevant travel document. There was nothing said by him despite specific questioning to suggest there were any particular reasons why detention would be more onerous than it would be to any overstayer in immigration detention awaiting removal. In detention reviews on 20 January and 26 January it was noted that the only barrier to removal was the outstanding travel document but that there was a high risk of absconding because he was in overstayer, had worked illegally and had not attempted to regularise his stay. He had no family ties in the UK. In the detention review on 26 January the authorising officer has referred to the presumption in favour of temporary admission or release in such cases but said the detention remained appropriate to effect removal which was anticipated in reasonable timescales. In addition, as the Claimant was an overstayer and had been working illegally it was considered he was unlikely to comply with any conditions of temporary admission or release.

In my view on the facts as they appeared to the Defendant’s officers up to 29 January the conclusion that detention was appropriate for the Claimant is unexceptionable and indeed to be expected. There was no failure to apply the relevant policies and guidance.

A detention review on 2 February came to much the same conclusion. The review notes that an asylum claim had now been made but also that the Claimant had had ample time to claim asylum previously in the five years he had been in the UK. The authorising officer writes: “Although he is not from a NSA state, his asylum claim could be certified on a case-by-case basis, depending on the merits of the claim”. NSA refers to non-suspensory appeals meaning that he was not from a country to which he could not be returned pending an appeal against a refusal of asylum and a reference to the claim being certified is to section 94 of the 2002 Act. At that date, although the asylum claim had been intimated, no details had been given. In my view the conclusion reached remains unexceptionable and in line with policy and guidance. The mere fact of a late claim for asylum was understandably given little weight.

His asylum screening interview took place on 5 February. The Initial Contact and Asylum Registration form completed during that interview shows thatthe Claimant was asked: “Please BRIEFLY explain ALL of the reasons why you cannot return to your home country?” The note of his reply is:

“Unsure sexuality. Met a few girls tried sex with them. Unable to have sex with them. Tried 2 or 3 times more to make sure. Now having sex with males. If I go back naturally parents want to arrange marriage and I can’t tell them about it. I will lose my identity because I do not know if I am a male or female.”

When he was asked “Do you feel safe in the accommodation”, he said “Yes”.

He expressed a preference for a female interpreter at the full asylum interview.

He replied “No” and “Nothing” to questions as to whether he had any medical conditions or if there was anything else he wished to say about his physical or mental health and as already mentioned, to the question: “Can you tell us if there are any particular reasons why you should not be detained while your claim is considered?”; he replied “[u]nder pressure if release me I can feel relaxed and you can interview me in a better way”.

This was followed by a detention review carried out by the officer who had conducted the asylum screening interview. In this review the officer does not say anything about the reasons given by the Claimant in outline why he was claiming asylum and this is a matter criticised by Ms Naik. She says that the Defendant’s own guidance requires further consideration following the screening interview as to whether, in the light of what is said in it, detention remains appropriate. The officer does say in the detention review that the Claimant had only made his claim for asylum after being detained and served with the removal notice and the timing of his asylum claim was seen as an attempt to frustrate removal process and get temporary release. Otherwise the grounds supporting detention remain the same as before. The authorising officer writes:

“I agree with the above recommendation. In light of the subject’s immigration history it is considered he poses an abscond risk; he overstayed for 4 years, was encountered leaving the country and only claimed asylum after his arrest. Detention is considered appropriate and proportionate and in accordance with chapter 55 of the EIG.”

In my view, while it may have been better to say something about the nature of the asylum claim put forward at the screening interview, it was not necessary for the officer completing a detention review immediately after it to repeat what he has recorded in the initial registration form. It is clear from the references to this being a late claim for asylum made only after the Claimant had been detained and served with removal directions that his claim was not at that point considered genuine. In my judgment that was a perfectly reasonable view to take on the facts as they then appeared which included of course the completely different explanation given when he was initially interviewed at Larne House as to why he had overstayed. Indeed Parliament in section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 required officers determining whether to believe a statement made by or on behalf of a person making an asylum or human rights claim to take account of the failure to make the claim before being notified of an immigration decision or before being arrested under immigration powers, unless the person had no reasonable opportunity to do so.

The full asylum interview was fixed for 16 February only some 11 days later but as already mentioned this was put back at the Claimant’s request. Detention reviews took place on 9 and 16 February and unsurprisingly, as no new information had been supplied, came to the same conclusion as the previous reviews. The reviewer on 16 February however did have the additional information that the asylum interview had been put back but that was at the claimant’s request and as it was to take place on 24 February that delay would clearly not be regarded as sufficient to change the conclusion that detention remained appropriate.

The only additional information which came to the Defendant’s notice before the Claimant was released on 24 February was the letter before action from Duncan Lewis dated 22 February in which they wrote:

“The claimant is currently unsure of his sexual preference and gender identity. He has recently had intercourse with three men and is also questioning whether he identifies as a man or a woman. This is a recent development for the Claimant which he is trying to come to terms with. During attendance with the claimant on 19 February 2016, he informed instructing solicitors that as a result of this confusion, he has suffered from mental health problems and sleeping problems. He is coming to terms with his sexual preference and gender identity, which is causing much distress and is impacting upon his mental health.”

I have already referred to the references to mental health problems and distress in this letter which referred to the request the Claimant had made for a Rule 35 assessment and concluded that the response to that part of the letter was inadequate even though I did not find that an adequate response would have meant that the Claimant would have been released. As for the part which outlines the reasons why the Claimant was seeking asylum the summary given really adds nothing to what he told the officer at the screening interview. Indeed it contains rather less because it does not mention his concern about his parents’ attitude and the likelihood that they would want to arrange a marriage for him.

There does not appear to have been a further detention review following receipt of this letter before the Claimant’s release on 24 February.

It seems to me that even though the Defendant’s case workers should have been mindful of the difficulty genuine asylum seekers who base their claim on sexual identity or orientation may have in articulating or even talking about the facts, there was nothing in this case which ought to have alerted them to the need to consider the Claimant’s release purely for the purposes of enabling him more effectively to put forward his case at the full asylum interview. He would have legal assistance for that interview whether it took place in detention or not.

The Claimant relies (again without permission but I have considered it) on the supplementary report of Dr Tandy where he records that the Claimant was more freely able to talk about these matters following his release when he had attended an LGBT centre and had the support of a counsellor. He told Dr Tandy that he had not felt safe at Harmondsworth and Dr Tandy offers the opinion that if he had remained detained that would have “further eroded his capacity to articulate his situation with coherence”. However I must judge the adequacy of the Defendant’s decision-making in relation to continued detention by reference to the position as it was understood to be at the time. The Claimant was not at any point saying that he felt unsafe in detention—quite the contrary. His comment to the Defendant’s officer that he might be more relaxed if released was in response to a specific question which gave him the opportunity to give particular reasons why he needed to be released in order to pursue his claim (such as making enquiries of others or obtaining documents) and in itself amounted to very little.

In my judgment therefore insofar as his case is that he should have been released because his ability to put forward his asylum claim would at that early stage be seen to be potentially impaired it fails.

The principles laid down in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 were expressed by Lord Dyson in Lumba at para 22 thus:

“(i)

the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”

The Claimant’s case under this ground is that there was a failure to adhere to the third principle. In light of my conclusions so far this ground must be confined to the proposition that the Defendant knew enough about the nature of the asylum claim to realise that it was one of some complexity that would take time to resolve and would lead, if refused by the Defendant, inevitably to a protracted appeal process in a case where the certification process requiring the Defendant to make his appeal from outside the UK would inevitably not be applied. The third Hardial Singh principle would therefore not be satisfied because by 5 February 2016 it must have been apparent that there would be no possibility of removing the Claimant within a reasonable period. He should therefore have been released regardless of other features of the case as set out in the detention reviews which argued against his release, such as the absconding risk.

I do not accept that this should have been regarded as a particularly complex case. It was slightly more complicated than one where there was no doubt about the fact that the Claimant was gay; however the issues of fact were likely to be dependent simply on the credibility of the Claimant at an interview designed to probe the consistency and reliability of his account while giving him every opportunity to articulate matters in his own way without necessarily using labels familiar to Western ears, on which the Asylum Policy Instruction I have referred to gives valuable guidance to interviewers. I note that Cranston J in Hossainheld at paras 148-9 that such claims are not so complex as in themselves to create a general presumption against detention.

As to the timescale for resolution of the claim the full asylum interview had been arranged for 16 February (2 ½ weeks after what I have found to be the first notification of a claim to asylum) and then deferred at the Claimant’s request. He was released before the interview was conducted. It must be inherent in the proper approach that the first step, in following the Hardial Singh principles as set out in chapter 55.1.4.1 of the EIG, is to consider the removability of a detained person in the period up to that interview because that will be the time when it will be expected either that the claim is a good one in which case he will be granted asylum and released or it is a bad one and only then, if an appeal is indicated, will it be necessary to consider in the light of this development whether detention should be maintained pending the exhaustion of that process. It seems to me wrong to require the Secretary of State to assume in all cases that the claim will be refused and that an appeal will follow so that in applying the third Hardial Singh principle the SSHD must act on the assumption that the earliest the person could be removed was only after whatever should be considered the likely timescale for the exhaustion of all possible avenues of appeal and judicial review (including further appeals from first instance judgments). Indeed there is a tension between on the one hand the Claimant’s case that his claim for asylum as a gay man from Pakistan was enough in itself to treat him as irremovable in a reasonable time (which presupposes that the facts asserted are true) and the assumption that the claim will be refused requiring an appeal (which presupposes that following the full interview the Defendant concludes that the facts are untrue or insufficient to justify the claim for asylum).

This two-stage approach ties in with para 14 of the Interim Process Map which states:

“If however the application is refused and attracts an in-country right of appeal, case owners should consider very carefully whether detention remains appropriate while the appeal is being processed.”

Notwithstanding the entry in the “GCID” record sheet already referred to (“Subject is not an NSA national and is therefore likely to benefit from in-country ROA and attendant time scales.”) in my view there was no obligation at that point, in considering whether the Claimant could be removed within a reasonable time, to assume that the claim would be refused and there would then ensue a lengthy appeal process. Even if that was the correct approach it would not follow that in this case, by 24 February 2016, there would have been any basis for concluding that this must involve an unreasonably long period so as to make it unlawful to continue detention at that point regardless of other factors (such as risk of absconding) that told against release even on conditions. In R (Muqtaar) v SSHD [2012] EWCA Civ 1270; [2103] 1 WLR 649 the Court of Appeal explained that there is no legal requirement that in order to continue detention pending deportation the Home Secretary had to be able to identify a finite time in which removal could reasonably be expected to be effected. The Claimant’s substantive appeal to the FtT in fact came on for hearing on 10 July 2017, a year after the Defendant’s rejection of the asylum claim, but as the Claimant had been on bail since 24 February 2016 that is no indication of how long he would have had to wait for an appeal hearing had he remained detained.

In my judgment this case is very far removed from those cases where an overstayer or illegal entrant has been detained for many months ultimately in a sort of limbo because all avenues which might lead to successful removal appear to have closed. The simple making of a claim for asylum which might or might not on investigation prove to be a good one and, if rejected, might (but might not) then prompt an appeal process which might or might not succeed (statistics referred to in Hossain show many are not pursued and most fail) cannot in my view, at a time before the expiry of the target of 28 days for making a decision on such a claim and before the full interview has taken place, prevent the Defendant from holding the view that the Claimant may be removed in a reasonable time.

As Mr Brown pointed out even if the facts outlined by the Claimant on 5 February were then assumed to be entirely correct (contrary to the statutory requirement of scepticism referred to above) in itself that would not necessarily mean that he would qualify for asylum. In HJ (Iran) v SSHD [2011] 1AC 596 the Supreme Court held that a claimant who had a well-founded of being persecuted on the ground of his sexual orientation if he lived openly and freely as he wished to do would not lose the protection of the Refugee Convention merely because he could avoid that persecution by not living openly and freely. But the Court also held that, if he would be expected to live discreetly for other reasons, such as societal or family disapproval, so that avoiding persecution was not a material reason for his so living then he would not require the protection of the Convention. From what the Claimant was saying in his asylum screening interview it remained unclear whether he might, if returned to Pakistan, wish to hide his sexuality for reasons to do with his relationship with his parents rather than because of any pressure imposed on him by fear of persecution.

The Claimant’s claim for substantial damages for unlawful detention fails. He is entitled to nominal damages. I invited the parties on reading this judgment in draft to seek to agree a form of order which may or may not include declarations as to the lawfulness of the detention following the failures to comply with Rule 34 of the Detention Centre Rules or, in the absence of such agreement, to make short written submissions on the form of order.