Khaleseh v The Home Office

This is the Claimant’s claim for damages for false imprisonment arising out of his detention by the Defendant at Dover Immigration Removal Centre (“IRC”) between 27th November 2013 and 20th February 2014. The matter is listed for trial of liability only. If necessary, quantum will be dealt with at a later hearing.

The Claimant originally also pursued a claim in respect of his period of detention between 14th November 2013 and 27th November 2013, but that part of the claim has been abandoned.

Apart from the skeleton arguments prepared for each side I have a trial bundle and a bundle of authorities. The Defendant added the case of the SN v SSHD [2014] EWHC 1974 (Admin). I heard oral evidence from the Claimant and from the Defendant's witness Mr Richard Pulham. Pursuant to an application dated 22nd September 2015 to which there was no objection I granted permission to the Defendant for Mr Pulham to give evidence adopting the witness statement in the trial bundle of Miss Janelle Roberts as his own, due to the unavailability of Miss Roberts who is on maternity leave.

The Claimant, Mr Khaleseh, is an Iranian national born 4^th January 1984 and who is therefore now 31 years old. He arrived in the United Kingdom on 12th November 2013 concealed in the rear of a lorry amongst a load of car parts. He was discovered at 10.05 by border force officers. Thus he arrived clandestinely. A EURODAC search revealed that the Claimant had been fingerprinted in Italy where he had entered illegally on 22nd October 2013. A screening interview was carried out on 12th November 2013 between 14:40 and 15:00 hours. An interpreter was present. The Claimant speaks Farsi. The Farsi-speaking interpreter was from Afghanistan. It was identified that the Claimant was claiming asylum. He was transferred to the Dover IRC arriving in the early hours of 13th November 2013.

Meanwhile Italy was asked to take charge of the Claimant's asylum claim. Italy ultimately by default accepted responsibility for the transfer of the Claimant pursuant to the Dublin II Regulation on 13th December 2013. By decision letter dated 17th December 2013 the Defendant notified the Claimant that his asylum application would not be considered substantively because he would be removed to Italy. In response to that solicitors, Duncan Lewis, wrote a pre-action protocol letter dated 7th January 2014 which is at p.398. The Defendant’s response to that letter is at p.436. The letter from Duncan Lewis made no reference to the current false imprisonment claim.

Solicitors for the Claimant, Leigh Day, who act in these proceedings, wrote a letter to the Defendant which is at p. 443 in the bundle. That is also a pre-action protocol letter seeking the Claimant’s release and damages for false imprisonment based on the Defendant's breaches of Rules 34 and 35 of the Detention Centre Rules (SI 2001/238) and the Defendant’s published policy. There is no response to that letter. It seems that the Defendant wrongly concluded (p.553) that the letters covered the same ground and that no response was required to the letter from Leigh Day. Thereafter a Claim Form was issued in the Upper Tribunal challenging the Defendant's decision to issue removal directions and those removal directions were suspended. On 17th February 2014 a claim for judicial review was issued challenging the Defendant's refusal to release the Claimant from immigration detention. On 20th February 2014 the Claimant was granted temporary admission and released from detention. Pursuant to a Consent Order in the “challenge to the refusal to release” proceedings, the claim (this claim) was transferred to the Queen's Bench Division.

For the sake of completeness, I should add that from March 2015 the Claimant was re-detained and was in detention for a further period of time in respect of which further proceedings were issued (and I think transferred to the Queen’s Bench Division). However those proceedings are stayed pending the outcome in this case. There has not yet been a decision in respect of the “third country” appeal.

The notes of the screening interview on 12th November 2013 are at pp. 264- 282 in the bundle. The Claimant indicated that he was fit and well and that he understood the interpreter. He understood that he had entered illegally. He said that he had left Iran 12 or 13 days previously and could not remember which countries he may have travelled through. He said that he had come to the UK to claim asylum. He said that he was a follower of the Ahl-e Haqq religion which is illegal in Iran. He was distributing leaflets and he was found out and had to leave. He said that he had no criminal convictions. As is apparent from the form at p.267 the Claimant was told that the questions that he was about to be asked related to his identity, background and travel course to the United Kingdom and that the information would be used mainly for administrative purposes. He was told that he would not be asked at that stage to go into detail about the substantive details of his asylum claim, but that that would be done at a later interview. Of course, the decision having been taken to remove the Claimant to Italy for his asylum claim to be determined, there was no substantive asylum claim interview ever carried out.

The Claimant told the officer in the screening interview that he had suffered from a form of leukaemia, but had been treated and was healthy at that time. He identified that he belonged to a minority religion. He said that his friend had been arrested and that he was forced to leave Iran. He said that his father had been summoned to court some years previously to speak about his religion and was interrogated and died. He denied that he had ever been arrested and charged with or convicted of an offence in any country, but said that he was "wanted" because of his religion and because he had been preaching.

At p.225 in the bundle is a Patient Record from Dover IRC showing that at 10.14am on 13th November 2013 at the health centre the Claimant was seen by a nurse. He was asked a series of questions and in response to a question as to whether or not he had been the victim of torture, it is recorded that he answered “yes” because a “new episode” is referred to. There is a record at 10.30 with the same nurse which reads that the Claimant “claims he has been tortured – for MO". In other words he was going to be referred to the doctor.

He was seen by Dr Naveed Tippu at 9.44am on 14th November where he was examined and where he supplied information about his non-Hodgkin's lymphoma and its treatment. There is no mention of torture in the record. No Rule 35 report was prepared at that time. It was this failure by the doctor that formed the basis of the claim in respect of the period of detention prior to 27^th November which has now been abandoned.

However, at p.121 in the bundle is a Rule 35 report from Dr Tippu on the Claimant. It is dated 23rd November 2013. Dr Tippu has ticked the box which reads "I have concerns that this detainee may have been the victim of torture". It sets out: - “Alleges that he was arrested on a number of occasions last year and was detained for a total of 2 months. He was beaten with a cable. He belongs to the Al-Haq division of Islam which is not recognised in Iran. His father was killed for his belief. Says he will be killed if he returns to Iran. He has a number of scars which are recorded on the body map. Impression: this is an account given by Mr Khaleseh. Injuries might be consistent with scars from a beating with cables”. The body map shows approximately 11 scars identified as those which might be consistent with scars from beating with cables. It is apparent from the record on p.229 that the Rule 35 form was completed and copies were given to the Claimant, the Centre manager and "immigration".

The Defendant through their caseworker Tracy Nicholls responded to this report by letter dated 27th November 2013. The document is at pp. 126 - 127 in the bundle. It sets out that it is in response to the Rule 35 report and sets out the Claimant’s account of events as given to Dr Tippu, including that “The Doctor has stated that this is an account given by you and your injuries might be consistent with scars from a beating with cables”. It then goes on to summarize the information obtained from the Claimant on 12^th November at the screening interview. That paragraph concludes “It is not considered unreasonable to have expected you to mention such a significant life event; such as being tortured, when asked the above questions”.

Miss Nicholls correctly quotes the relevant definition of torture taken from the case of R (EO and Others) v SSHD [2013] EWHC 1236 (Admin) (“EO”) which refers to the use of intentional infliction of physical or mental pain or suffering “for any such purpose as…punishing him for an act”. The last sentence of that paragraph reads “you have not stated what information was demanded of you and/or what … you were expected to confess”.

The conclusion is that the information contained within the report submitted by the IRC staff has been considered and reviewed and having taken into account "that you have not provided any independent evidence or verifiable details of the alleged torture, it has been decided that your detention will be maintained. The detention is to be maintained for the following reasons: to effect your removal from the UK; to prevent absconding. You have knowingly entered the UK illegally without entry clearance or any valid travel document which clearly shows a complete disregard for the UK immigration law, therefore your detention remains appropriate and lawful".

In the course of the hearing evidence was given to the effect that this decision would be and was subject to quality control by a senior case officer, in this case, Miss Roberts. She agreed with the decision concluding that the report (the Rule 35 report) did not constitute independent evidence of torture. It was noted that the Claimant had failed to mention the allegation of torture during his screening interview. Furthermore it was not considered that the claim fell under the definition of torture since there was no confirmation from the Claimant that he was being beaten in order for information or a confession to be obtained. His continued detention was authorised to prevent him from absconding where he had no ties in the UK and was considered therefore unlikely to have an incentive to remain in one place and because removal was a realistic prospect in the near future.

In his witness statement which begins at p.93 in the bundle, the Claimant sets out much more significant detail of the way in which he alleges he was ill-treated in Iran and the injuries he sustained.

I also note that there is a document exhibited to the Claimant’s statement which is described as a booking-in sheet. It is not dated and it does not indicate by whom or where it was completed. However in response to a question in that document about distinguishing/visible marks, for example tattoos and scars it is recorded that the Claimant indicated that he had a scar on his chest and on his right thigh and that he had the name of his brother tattooed on the top of his arm.

Against this background the parties’ cases can be put very shortly. It is the Claimant's case that the Rule 35 report of Dr. Tippu is independent evidence of torture and that the Defendant's response in the letter at p.126 is flawed because issues of credibility do not undermine the fact of there being independent evidence of torture (although clearly it may undermine the proof thereof) and because the definition of torture does not require that there be an aim of extracting information or a confession. Thus the Claimant claims that the Defendant acted in breach of her policy when on 27^th November 2013 she decided to maintain the detention of the Claimant.

The Defendant's case is that these decisions are fact-sensitive and that each decision will be case-specific. The Defendant says that the decision-maker here reached a reasonable decision and formed a view which was reasonable bearing in mind all the circumstances. The decision-maker acted within the limits of her discretion when applying the policy to the facts of the case known to the Defendant and it was properly open to her to reach the conclusion, on those facts, that the torture claim was incredible or very unlikely to be true. The words “might be consistent with” entitled the Defendant to give much less weight to the report than if it had said, for example, “highly consistent with”.

The Claimant goes on to argue that if I am satisfied that there was independent evidence of torture, I should go on to find that there were no very exceptional circumstances which would have justified the Claimant’s continued detention. In fact the Defendant concedes that there were no such very exceptional circumstances. The point is significant, of course, since the Claimant’s entitlement to substantive rather than nominal damages depends on a finding that he should have been released from detention in light of the Rule 35 report.

The legal framework here can be set out relatively shortly in circumstances where in the event there was not a great deal of dispute between the parties as to the framework or the proper interpretation and application of the relevant criteria and tests. Mr Buttler on behalf of the Claimant took me through the relevant provisions and authorities in opening the case. They are referred to in both parties’ skeletons. As I say there is no real dispute as to their effect.

The Defendant’s Enforcement Instructions and Guidance Chapter 55 – Detention and Temporary Release (“EIG”) set out that there is a presumption in favour of temporary admission or release and wherever possible alternatives to detention are used, but that it is most usually appropriate to detain someone to effect their removal, to establish their identity or basis of claim or where there is reason to believe they will fail to comply with any conditions attached to the grant of temporary admission or release. Against that background 55.10 sets out that certain persons are normally considered suitable for detention in only very exceptional circumstances. The list of such people includes "those where there is independent evidence that they have been tortured". The Guidance provides that if a decision is made to detain a person in such a category the case worker must set out the very exceptional circumstances for doing so on the file.

The Detention Centre Rules 2001 provide (Rule 34) that a detained person shall be given a physical and mental examination by the detention centre’s medical practitioner within 24 hours of his admission to the detention centre. The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture. The manager shall send any such report to the Secretary of State without delay.

The Detention Rule 35 Process (“the Process”) which is at Tab 3 in the authorities bundle identifies that the purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention and emphasises that the information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case. The Process specifically refers to the case of EO. That decision follows on from others but is a particularly helpful review and distillation of the principles in these cases. The Process provides that "at the present time and until further notice torture in the context of Rule 35 and the application of detention policy must be regarded as that defined by Burnett J in EO and torture is thus defined as "any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind".

Caseworkers are reminded that Rule 35 reports are not medico-legal reports and should not be considered defective for not containing the detail of such reports or not being written according to the Istanbul protocol or other standards. Such reports require careful handling particularly because they are generally not written by medical practitioners with expertise in assessing whether an individual has been tortured. Specific provision is made for a situation where greater clarity from a report is necessary to allow a substantive response to be given. In those cases the relevant IRC should be contacted without delay and a request should be made for the further information. It is specifically to be used where there is inadequate information and is "not a means by which the concerns of the doctor should be questioned in the case of disagreement”.

The Process provides some examples. Example no.4 hypothesises a report from a doctor giving an opinion that a detainee’s injuries “might be attributable to the torture” he claimed to have experienced and in that example the appropriate response suggested to the Defendant’s case workers is that this would constitute independent evidence of torture.

Against this background, following the cases of (Lumba) v SSHD [2011] UKSC 12 and Kambadzi (R (SK Zimbabwe) v SSHD [2009] 2 All ER 365, Burnett J in EO cited (paragraph 21) the two propositions which are material here: “(1) a breach of public law duties when exercising a discretionary power to detain renders the subsequent detention unlawful ( i.e. amounts to the tort of false imprisonment) if the breach bears on and is relevant to the decision to detain; (2) whilst it is no defence to a claim for false imprisonment to show that the Claimant could and would have been detained lawfully, if such were established the Claimant would be entitled to nominal damages only”.

The Claimant’s case here is specifically stated to be a public law error and the Claimant alleges that that public law error is a breach of policy and nothing else.

Both Counsel agreed that the Court needs to consider the Defendant’s decision in light only of the information that was available to the Defendant at the time. Whatever evidence there may have been later is not admissible in the consideration. This cuts both ways: the Defendant may not make submissions in relation to any later arising inconsistencies in the Claimant’s evidence; similarly the Claimant may not rely on a subsequent medico-legal report (as has been obtained here). This is the case even though my decision is made ex post facto.

In Lumba it was held that a failure by the Secretary of State to have regard to a material policy concerning detention would render the detention unlawful and result in false imprisonment even where it is certain or inevitable that the person detained could and would have been detained had the power been exercised lawfully. If detention was certain or inevitable although the tort of false imprisonment will have been committed by the Defendant, the person detained would only be entitled to nominal damages.

The Defendant’s published policy is as identified by the Claimant and it is acknowledged by the Defendant that a failure to comply with that policy may render detention unlawful where it is material to the decision to detain. Again, by reference to Burnett J in EO at paragraph 52 it is established that causation is relevant to the question whether a Claimant should be entitled to compensatory damages. It is not relevant to the question of whether the detention was lawful. As is set out in paragraph 59 there is no doubt that the underlying rationale of the policy is that those who have suffered torture in the past are disproportionally adversely affected by detention. Hence they will normally only be detained in very exceptional circumstances.

At paragraph 69 of the decision in EO the learned Judge set out that the credibility of a detainee may be a factor which informs the question of whether there are very exceptional circumstances for maintaining detention. Doubts about the credibility of a detainee are not sufficient because they are commonplace and acting on those doubts would be tantamount to requiring a detainee to prove that the allegations of torture were true. The Judge said “However there may be cases in which the information available to the decision-maker leads him to the firm conclusion that the torture claim is untrue, that is to say incredible or very unlikely to be true”. As set out at paragraph 99 the learned Judge concluded that issues of credibility of the detainee do not inform the question whether a medical report amounts to independent evidence of torture.

As set out in EO it is established that there is a clear difference between something that amounts to independent evidence of a fact and proof of that fact.

Various other authorities are cited in the skeleton arguments. The Claimant invited me to follow the decision of HHJ McKenna sitting as a Judge of the High Court in the case of R (BA) v SSHD [2014] EWHC 4223 (Admin). The facts in that case are indeed similar to the facts here. The Judge (at paragraph 22) stated that although the doctor preparing the Rule 35 report had not specifically said that he believed the Claimant’s account he had ticked the box to show he had concerns that the Claimant may have been the victim of torture. Moreover the doctor had not indicated that he doubted the Claimant’s account. This was the doctor’s own view and therefore gave some credence to the Claimant’s case. Thus whilst not every Rule 35 report will amount to independent evidence of torture, the judge was satisfied that it did in that case.

As indicated above, the Defendant handed in the case of SN where Carr J found (paragraph 89) that the Rule 35 report did no more than recount the Claimant’s assertions and record the presence of scars. It did not amount to independent evidence of torture. The doctor did not express concern about torture nor did he say that the scars might be attributable to the torture asserted. The Claimant had been specifically asked and had denied that he had been tortured. He had been found not to be credible by a Tribunal and he had absconded. There are other distinctions to be made between that case and the present one.

I do not intend to refer to the other cases cited. These decisions are fact-specific. For what it is worth, however I consider that the present case is far closer to the circumstances in BA than those in SN. There was a wealth of information to be considered in SN. There is less information here than there was even in BA. It seems to me that where the evidence is essentially limited to the Rule 35 report and the doctor has said that there are medical findings which are or might be consistent with the Claimant’s account; and has ticked the “concerns” box; it will be difficult to argue that that does not amount to independent evidence of torture.

It was submitted on behalf of the Claimant that I could reach my decision on the basis of the evidence contained in two documents: the Rule 35 report; and the Defendant’s letter in response. At the end of the day I think that that submission is probably correct. I did hear from the Claimant and from Mr Pulham. I should say that I found the evidence of both witnesses to have been for the most part reliable. Mr Pulham was a patently honest witness albeit he had had no involvement in this case and was in the position of adopting someone else’s evidence. The Claimant gave his evidence via an interpreter. He was obviously mistrustful of the questions he was being asked and in consequence gave the impression of being evasive. His answers were perfunctory. I did not consider that he was untruthful, however in respect of the answers he did give.

Mr Khaleseh has unfortunately been told recently that he is suffering a recurrence of his non-Hodgkin’s lymphoma. He is still taking between 12 and 14 tablets a day for his various medical conditions. He told me that he had not taken any since the day before he gave his evidence in order to enable him better to answer questions.

He described how he had been taken to hospital from the detention centre in Dover on two occasions. The first time was an emergency. He told me that he was handcuffed to his right hand and right leg. On the second occasion when he went for a bladder test he had both hands handcuffed and despite a request from a nurse they were not removed. Following the test when he needed to use the lavatory, his handcuffs were extended by a longer chain and an officer went to the toilet with him. There were other people around at the time.

He confirmed that he was greatly affected by what had happened to him in Iran. He said that the screening interview was difficult because he was feeling unwell at the time in particular because of the circumstances of his arrival. Moreover the Afghan interpreter, although he spoke Farsi spoke it in a different dialect to that spoken in Iran and so there were difficulties with translation. It is right to say that he wrote and complained about the use of the Afghan interpreter from the detention centre. He said repeatedly when he was cross-examined that he considered that he had answered all the questions that he was asked during the screening process. He described how during the interview he was in shock and unwell. He was inside a closed room. He had some pain. He wanted to smoke, but was not permitted to. He agreed that he had shown an officer some scars, but considered that it was a matter for the officer to decide what to record from what he saw. He confirmed as is apparent from the records (page 226) that he told the nurse that he had been tortured when he was asked and that this was on 13 November 2013, the day after his arrival at the detention centre.

Mr Pulham began by saying that he considered that the Rule 35 response letter to be sound and he saw no error in it. He agreed that the Claimant underwent a screening interview and not a full asylum interview. There was no asylum interview and no decision made because of the third country policy whereby the Claimant was to be removed to Italy. Mr Pulham accepted what the Claimant says about the different Farsi spoken in Afghanistan and Iran. He agreed that during the screening interview there is nothing in the notes that would suggest that the Claimant was actually asked if he had been the victim of torture and Mr Pulham did not know when he was first asked that.

He agreed that the failure to answer the pre-action protocol letter from Leigh Day on the grounds that it was the same basis of claim as the challenge being made by Duncan Lewis was wrong and that the Defendant therefore had not dealt with Leigh Day’s letter.

He told me that he was familiar with the EIG and Rule 35 guidance. He had seen the Detention Services Order albeit some time ago. He was not familiar with the guidance from the case law and was not familiar with the authority of EO. He felt that he had last had some training on these issues about three years ago. Having been taken through some of the documents Mr Pulham expressed the view that if somebody had entered the country clandestinely and was subject to an adverse decision by the Defendant that would be a strong ground for maintaining detention, if there was a realistic likelihood that the detainee would be removed in a reasonably short period of time. He acknowledged that that view was informed by some guidance which he had been given, but which was unpublished. He felt that that was the case here where Italy had accepted responsibility albeit by default. Of course, as he said it is easier from an administrative point of view to remove someone if they are in detention. He seemed to agree with the proposition that if there was a realistic likelihood that somebody would be removed in reasonably short period of time (having entered clandestinely and being subject to an adverse decision) in those circumstances the presumption of temporary admission would be displaced by that unpublished guidance.

He accepted and agreed with the guidance points that he was taken to. Having considered that, he concluded that if the objective findings of a doctor caused the doctor to say that those findings were consistent with an account of the individual concerned, then it would provide some independent evidence of torture. He felt it needed to be taken in the context of the case, but that a finding of scarring consistent with an allegation of torture would be independent evidence of torture albeit not proof of the same. At that point in his evidence he said that he disagreed with Miss Roberts on that issue.

Nonetheless he considered that the decision was a reasonable one and that it would be reasonable to expect that someone who had had the Claimant’s experiences would have said something. He thought that this point went to credibility and expressed the opinion that issues of credibility would be relevant to whether or not the report amounted to independent evidence of torture. Again when he was asked to consider this more carefully he acknowledged that he could see that credibility would be irrelevant to the issue as to whether or not the report amounted to independent evidence of torture. Thus he accepted that Dr Tippu’s report was independent evidence of torture.

All he could say really in respect of Miss Nicholls’ decision was that it seemed to him that she did not agree that Dr Tippu's evidence was independent evidence of torture. It was his view that there were no very exceptional circumstances in the case. He could not identify Miss Nicholls’ reasons for saying that Dr Tippu's evidence did not amount to independent evidence of torture. He felt that perhaps, when she was referring to the lack of detail about information or confession being sought from Claimant, Miss Nicholls might have been saying that the Claimant had not given an account of why he had been tortured. At this point in his evidence he felt compelled to agree that Miss Nicholls had made the wrong decision. He agreed that the quality control process carried out by Miss Roberts essentially repeated the details relied on and reasons given by Miss Nicholls.

In re-examination Mr Pulham confirmed his understanding of the "unpublished guidance" to be that if removal was planned imminently then it would be reasonable to continue to detain a person. He felt that the grounds for the decision to maintain detention made by Miss Nicholls were that Miss Nicholls did not accept that there was independent evidence of torture and she had taken into account the fact that the Claimant did not mention anything about being tortured when he might have done when being interviewed. Mr Pulham told me that it would be possible in his view to read into the word "might" an implication of some other cause for the scarring.

The findings I need to make in regard to this evidence are limited. As I have said I accept that the witnesses were doing the best they could. I accept that the interpreter from Afghanistan did not speak the same dialect of Farsi as Mr Khaleseh and that this caused some difficulties at the screening interview. I find that Mr Khaleseh was not asked during that interview if he had been tortured. I find that the first time that he was asked about that was by the nurse on 13th November and his response to that was “yes”. I find that he did identify some scars to the interviewing officer on 12th November, but he did not identify all the scars on his body and the officer neither looked for nor asked about any more.

I find that, as described by him, Mr Khaleseh: was restrained on the two occasions he went to hospital; was restrained in the presence of others; the restraint was continued despite the request of a nurse for handcuffs to be removed; and he was required to use the toilet while still chained to an officer.

In respect of Mr Pulham’s evidence, the weight to be attached to it is limited given his total lack of involvement in this case. It seems to me that he considered that Miss Nicholls might have reached her decision because she had concerns about the Claimant's credibility arising out of his failure to disclose that he had been detained and tortured immediately and because he had not explained why he had been tortured. I consider that Mr Pulham felt that maintaining detention might be appropriate in circumstances where there was a realistic possibility that the detainee would be removed in the near future.

It seems to me to be more likely than not that Mr Pulham himself (and I cannot make any finding in relation to any other employee of the Defendant) had at some point been given some training or guidance which is not in any of the published documents to the effect that the imminence of removal might justify maintaining detention in a case such as this even where the decision would otherwise be for temporary admission or release. This is not a claim in the Administrative Court any longer. It is not appropriate therefore in my view for me to go beyond reaching that conclusion. I do not need to go beyond it to reach my decision in this case.

In reaching my conclusions, first of all I remind myself (and it is not in dispute) that the Defendant, the detaining authority, bears the burden of showing that the Claimant’s detention was lawful. That proposition is clear from authority and in particular I refer to paragraph 44 of the decision in Lumba. Further the Defendant additionally has an evidential burden as referred to at paragraph 80 of R (Das) v SSHD [2014] 1 WLR 3538. The Defendant has put herself significantly at risk of an adverse finding in this case where there was no evidence from the actual decision-maker, Miss Nicholls, before the Court. I have dealt with the rather limited weight to be given to the evidence of Mr Pulham. He could only express a view as to what Miss Nicholls’ decision-making process might have been, but I did not hear from Miss Nicholls herself. It is apparent that Miss Roberts’ review did not consider or explore any matters beyond those set out in the letter of Miss Nicholls and that does not take the issue any further either.

As set out at paragraph 68 of the decision in EO the question is whether or not something amounts to independent evidence of torture. That evidence must necessarily be something beyond the say so of the person concerned. It will not necessarily depend on their credibility.

Considering the authorities generally and analysing the matters set out above I have reached the clear conclusion that the Rule 35 report from Dr Tippu amounts to independent evidence of torture. Of course a significant part of the document is a recital of the Claimant’s account. That is not independent evidence. However, Dr Tippu has ticked the box to say that he has concerns that the Claimant may have been the victim of torture. He has expressed a view. That view is that “the injuries might be consistent with scars from a beating with cables". As I find, that is independent evidence of the Claimant's account. Dr Tippu was under no obligation to submit the report. He was under no obligation to tick the box raising concerns. He has done so and the only conclusion can be that as a medical practitioner he formed the view that on the basis of objective evidence in the form of scarring Mr Khaleseh might have been the victim of torture. That independent evidence according to Dr Tippu might in his view be consistent with the account given namely of being beaten with a cable. Dr Tippu does not say it is not consistent. He does not say that there could be other causes for the scarring identified on the body map. He does not raise any specific doubts about the findings or the Claimant's account. He clearly felt it was necessary to comply with the Rule 35 procedure in this case and inform the detention centre manager and the Defendant.

As I have found, the Claimant did not mention at the screening interview that he had been arrested, detained and tortured in Iran. He was not asked. He was asked the following day and mentioned it. It seems that the information upon which the decision was made by the Defendant as set out in the response letter was limited to the information from Dr Tippu and from the screening interview. The screening interview is not a full asylum claim interview. It may be that there are issues raised with regard to the Claimant's credibility because he did not give the account of his detention and torture in Iran that he gives now when he was first interviewed. As set out above that potential issue of credibility does not and in this case cannot undermine the opinion and findings of Dr Tippu. The decision-maker is not looking for proof of torture but for independent evidence of torture.

On analysis there are two bases in the letter of 27^th November upon which the conclusion that the Claimant had not provided any independent evidence or verifiable details of the alleged torture seems to have been reached. Firstly, that the Defendant did not consider it unreasonable to expect the Claimant to mention torture when asked if he had any medical conditions, when asked for his reason for coming to the United Kingdom and when asked why he could not return to his home country. This purported reason goes to issues of credibility only. It does not address Dr Tippu's independent evidence. In this respect the decision maker has fallen into error. She has not followed the appropriate guidance. She has not considered the nature of the evidence properly.

The second apparent reason is that the Claimant did not state what information was demanded of him or what confession was expected of him which gave rise to the torture. On the definition of torture in EO which is specifically set out in the Defendant's own guidance that is simply not a requirement. A detainee may have been punished by being tortured or it may have been as a result of some discrimination, for example. In so far as it is an attempt by Miss Nicholls to say that the Claimant has not explained why he was being tortured, then again, that does not address the issue as to whether or not Dr Tippu’s report amounts to independent evidence of torture.

On these bases I conclude that the Claimant's case succeeds. I find that the decision was reached in breach of the Defendant's own policy. This amounts to a public law error. The Claimant’s detention was unlawful. It was unlawful from the date on which the decision was made, namely, 27th November 2013. The decision-maker should have concluded that there was independent evidence of torture. She should then have gone on to consider in light of the guidance whether there were very exceptional circumstances in the Claimant's case such as would override the presumption that a victim of torture should not be detained. The Defendant concedes that there are no such very exceptional circumstances. Miss Nicholls did not identify any. Mr Pulham was unable to identify any. These two points are at the heart of the case and I find them in the Claimant's favour.

Although I was urged on behalf of the Defendant to find that the decision was a reasonable one I can see no basis for doing so.

Although Miss Nicholls refers to the fact that the Claimant is to be removed to Italy there is no suggestion in the letter that she was acting on the “unpublished guidance" identified by Mr Pulham. It does not seem to me that as far as the Claimant is concerned that issue forms any part of my decision.

At paragraph 35 of the Defendant's skeleton argument Dr Tippu’s use of the words "might be consistent with" is referred to and an argument raised that the use of those words are important because they denote nothing more than that the scars might have been caused by the trauma described, but it is non-specific and there are many other possible causes. Dr Tippu does not say that there are many other possible causes. The Defendant’s own example (no. 4) in the process document referred to above is almost on all fours with this wording and the guidance there suggests that this would amount to independent evidence of torture. In any event it does not seem to form any part of Miss Nicholls’ decision and therefore is not a matter which falls to be considered at all as I find.

Had Miss Nicholls felt that the information in the Rule 35 report was insufficient she could have requested more information. She did not do so and she does not say that she felt that she needed to. It does not seem to me that this point arises. As referred to in the case of EO the question as to whether or not there is independent evidence of torture “is in reality fairly hard-edged". In my view this report not only does amount to independent evidence of torture, but clearly does so and with sufficient information.

It is clear that the public law errors I have referred to were directly relevant to the decision to detain. The decision to detain was made on the basis of the matters set out in Miss Nicholls’ letter.

In the circumstances there will be judgment for the Claimant on the issue of liability in this case.