R (D) v Secretary of State for the Home Department and Others; R (K) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | D |
| Judgment Date | 22 May 2006 |
| Neutral Citation | [2006] EWHC 980 (Admin) |
| Docket Number | Case No: CO/4400/2005 & CO/4403/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 May 2006 |
[2006] EWHC 980 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Davis
Case No: CO/4400/2005 & CO/4403/2005
Mr Rabinder Singh QC and Ms Stephanie Harrison ( instructed by Bhatt Murphy) for the Claimants
Ms Jenni Richards (instructed by Treasury Solicitors) for the First Defendant
Mr Richard Furniss (instructed by Berrymans Lace Mawer) for the Second Defendant
Mr Timothy Pitt-Payne (instructed by Michael Simkins LLP) for the Third Defendant
Davis J:
Introduction
The Claimants, who can be identified as D and K, are asylum seekers. They claim to have been tortured in their respective countries of origin. On entry (separately) into the United Kingdom, they were interviewed and then sent to Oakington Detention Centre, with a view to their respective claims being dealt with under the fast track procedure. D was transferred to Oakington on 12 th May 2005 and released on 18 th May 2005, being granted temporary admission. K was transferred to Oakington on 5 th May 2005 and released on 11 th May 2005, being granted temporary admission. Their claims for asylum still (as at the hearing in March 2006) have not been the subject of any decision. By these proceedings, commenced by Claim Forms issued on 30 th June 2005, D and K each claim that their transfer to Oakington was unlawful or, in the alternative, that their continued detention while at Oakington was unlawful. They claim, among other things, that the Defendants have variously acted in breach of the Detention Centre Rules 2001 and contrary to the government's promulgated policy and to published standards relating to the handling of asylum cases. Extensive declaratory relief is sought. Damages are also sought for asserted breaches of the rights of D and K under the European Convention on Human Rights, in particular Articles 5,3 and 8.
The hearing before me lasted 3 days (a relatively long time for a judicial review matter). The materials and evidence lodged in advance were voluminous. An impression could be gained that the cases of D and K were being put forward as illustrative of what is asserted (by some) to be a generally flawed fast tracking process operated in the United Kingdom. Further, the Claim Forms as issued make a general allegation of what is asserted to be "the systemic failure by all three Defendants to ensure the provision of mandatory health care examinations for all immigration detainees held under the fast track procedure at Oakington and in particular to ensure that evidence is obtained to identify torture victims….." Yet further, there are a number of bodies and individuals who hold the view that the detention, pending determination of claim, of any asylum seeker is in principle inherently undesirable: see for example, the UNHRC guidelines issued in February 1999. Others (for example, the Medical Foundation) hold the view that at least those asylum seekers who claim to have been torture survivors should in principle not at any stage be detained, pending determination of their claims. These viewpoints find reflection in a number of the materials deployed at the hearing before me. On the other hand, others support, in general terms, the detention of asylum seekers pending determination of their claims.
It may well be that a consideration of the issues arising in this case may have a bearing on the treatment of asylum seekers hereafter who are detained in Oakington or comparable detention centres, such as Harmondsworth or Yarl's Wood. But it seems to me important to state at the outset that none of those competing wider viewpoints which I have outlined should operate as a distraction from the fact that these two claims required to be determined by reference to their own particular facts and by reference to the law and to government policies and published standards applicable to those facts; and I would record that Mr Rabinder Singh QC, leading counsel appearing (with Ms Harrison) for the Claimants, in the course of his scrupulously fair and restrained submissions, acknowledged that to be so. He further stated that there was no "hidden agenda" in these claims. In particular, he expressly disavowed any claim that the making of an allegation of torture by an asylum seeker of itself rendered a transfer to, or continued detention in, Oakington under the fast track procedure unlawful.
The background facts
The background facts relating to D are these.
D was, as she has said, born in the Ivory Coast on 3 rd July 1978. She arrived in the United Kingdom on the 1 st May 2005 using a French passport to which she was not entitled. She claimed asylum at the Croydon Asylum Screening Unit on the 11 th May 2005. On request, she returned the following day (the 12 th May 2005). Later that day she was told that her claim would be fast tracked and that she would be detained. She was transferred to Oakington, arriving at around midnight.
At the ASU screening interview at Croydon, her answers had been to the effect that she was fit and well enough to be interviewed, was in good health and had no current medical condition. She claimed asylum on the ground that she had a well founded fear of persecution or that there was a real risk of torture or inhuman or degrading treatment if removed from the UK. She made no reference in that interview to having been tortured, although there is also no evidence to show that she was asked in terms whether she was making such a claim and indeed the standard form says she would not be asked to give any details about her asylum claim. She gave, however, her reason as coming to the UK as "To protect myself. I have been persecuted because the authorities suspected I collaborated with the rebels …" She was served with a form 1S91R before her transfer to Oakington. That indicated that the Immigration Officer was "satisfied that your application may be decided quickly using the fast track procedure".
On reception at Oakington at around midnight on the 12 th May 2005, D was provided with what was called a welcome pack (in French translation) and with information about having access to a doctor or nurse. She was seen by a nurse – in accordance with the usual practice operated at Oakington – and asked to complete a health questionnaire. There is no clear evidence as to precisely when this happened but overall I conclude that this was shortly after she arrived, and certainly within two hours. D said that she did wish to see a nurse or doctor urgently. The standard form of questionnaire (in French and English) asked three questions:
1. Are you taking any medications for current health problems?
2. Do you wish to speak to a nurse or doctor about any health problem?
3. Is the health problem urgent?
D answered no to the first question and yes to the other two. The questionnaire also stated that should she need a nurse or doctor at any time she should ask a house officer to make an appointment. A Detainee Reception Report recorded that D had no obvious illness, injury or visible marks.
During the 13 th May D spoke to a representative of the Refugee Council (which has a permanent presence at Oakington). That body made a referral of D for medical inspection.
On the 14 th May D saw a nurse. There was no interpreter present at that stage, but the nurse spoke some French. D said to the nurse that she had been detained and tortured in April 2005 in the Ivory Coast, had been diagnosed with Hepatitis B and had miscarried due to ill-treatment in prison and had had no medical assistance at that time. The notes made by the nurse at the time recorded among other things, the following:
"[D] tells me she was imprisoned in April of this year for 4 days and was beaten. Showed me numerous linear scars now healed on her back. (To complete Allegation of Torture form when interpreter available)."
Although there is some conflict in the evidence on this, this note seems to bear out what is said elsewhere—for example, the witness statement of Mr Kelso dated 15 th September 2005 – that no such form was put in (or, therefore, considered) at this time, just because an interpreter's involvement was awaited.
D was scheduled to have her asylum interview, under the fast-track process, in the afternoon of 15 th May 2005. A representative of the Refugee Legal Council ("RLC") based at Oakington contacted the Home Office with a view to postponing that interview on the basis that D had, as it was alleged, been the subject of torture before coming to the UK. The Home Office had not at that stage received any other evidence of D having been tortured and was informed that there was no reason on medical grounds why the interview should not proceed. It declined to postpone the interview. The interview then took place that evening, the RLC maintaining its objection.
At the interview, at which an interpreter and a representative of the RLC was present, D said that she was fit and well and prepared to be interviewed, although complaining of pains and burns in her back. She said at the end of the interview that she felt fit and well but was "tired, that's all". In the course of her interview and as recorded in her Statement of Evidence Form and Interview, D among other things said this:
"They walked on me, they beat me on my back and my sides. They hit me with steel wire on my back. They spat on me and insulted me. They...
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