R (on the Application of ZA (Pakistan) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Dingemans,Lord Justice Leggatt |
| Judgment Date | 12 February 2020 |
| Neutral Citation | [2020] EWCA Civ 146 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2018/0630 |
| Date | 12 February 2020 |
[2020] EWCA Civ 146
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
(ADMINISTRATIVE COURT)
Mr Michael Kent QC (sitting as a judge of the High Court)
CO/1003/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Leggatt
and
Lord Justice Dingemans
Case No: C4/2018/0630
Sonali Naik QC and Michelle Brewer (instructed by Duncan Lewis) for the Appellant
Tom Brown and Saara Idelbi (instructed by the Government Legal Department) for the Respondent
Hearing dates: 22 and 23 January 2020
Approved Judgment
This is the appeal of Mr ZA (“the Appellant”), a Pakistani national, now aged 37, from the order of 20 February 2018 of Mr Michael Kent QC (sitting as a Deputy Judge of the High Court) (“the judge”). By his order the judge declared that the Appellant's detention by the Secretary of State (“the Respondent”) between 24 January and 24 February 2016 (inclusive) was unlawful. He awarded the Appellant £1 nominal damages and otherwise dismissed the claim. It was ordered that the Respondent should pay 50% of the costs of the claim to be assessed (if not agreed). The judge refused permission to appeal. Permission was granted, however, by Singh LJ by his order of 13 May 2019.
The principal issues on the appeal are whether the judge ought to have declared that the period of unlawful detention was somewhat longer than he found (in that it is argued that the detention was unlawful from its inception on 19 January 2016) and whether the judge should have ordered payment of compensatory (as opposed to nominal damages). Those issues arise under five grounds of appeal (see below).
The essential background facts are succinctly stated by the judge in paragraphs 1 and 2 of his judgment ( [2018] EWHC 183 (Admin)) as follows:
“1. …[T]he 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.
2. 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 22 February 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.”
Before the judge the Appellant claimed a declaration and damages for false imprisonment on four grounds:
“1) a failure to follow the Defendant's own guidance and policy on the detention of a person applying for asylum on grounds of his sexual orientation;
2) a failure to comply with Rule 34 of the Detention Centre Rules 2001 (2001 SI No 238) and/or policy, namelyarranging for a physical and mental health examination by a medical practitioner within 24 hours of theClaimant's arrival at each of three detention centres;
3) unlawful delay in arranging a requested medical assessment for the purpose of Rule 35 of the Detention Centre Rules; and
4) maintaining detention contrary to the principles laid down in R v. Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles).”
The judge found that the Respondent had failed to comply with Rule 34 of the 2001 Rules and that, therefore, the Appellant's detention, from 24 January 2016 (24 hours after his arrival at Brook House) until his release from Harmondsworth on 24 February 2016, was unlawful. There is no cross-appeal by the Respondent against that finding.
The judge dismissed the claim in respect of the Appellant's short period of detention at Larne House (a Short-Term Holding Facility (“STHF”)) between 19 and 23 January 2016, since Rule 34 did not apply and, as he found, there had been no breach by the Respondent of her policy on medical assessments within the STHF. However, the judge found that even if the Respondent had complied with Rule 34 in the later periods at Brook House and Harmondsworth, the Appellant would still have been detained. He found further that there was nothing arising under the Respondent's detention policy, in cases where asylum is claimed on sexual orientation grounds, that would have engaged an obligation to release the Appellant from detention earlier than he was. The judge also held that there was no basis for finding that the Respondent's detention had infringed the Hardial Singh principles ( R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704). In view of the finding that the Appellant would have been detained in any event, even if there had been full compliance with Rule 34, the judge awarded nominal damages only for the wrongful detention that had occurred.
Against those findings, the Appellant now appeals on five grounds as follows: (1) that the judge's approach to the issue of nominal/compensatory damages was flawed; (2) the Respondent had unlawfully delayed in arranging an examination of the Appellant by a medical practitioner after his specific request on 19 February 2016, 5 days before his release; (3) the detention of the Appellant in the STHF at Larne House required compliance with the Respondent's own policy requirements, equivalent to those under Rule 34 of the 2001 Rules, and that, in the absence of such compliance, the detention in the first period from 19 to 23 January 2013 was also unlawful; (4) the judge wrongly found that the alleged failure, following the making of the Appellant's asylum claim, to consider whether the nature of the claim did not render the Appellant's continued detention unlawful; and (5) the judge was wrong to conclude that there had been no breach of the Hardial Singh principles.
The parties addressed ground 3 first and so I turn to that ground. Ground 3
Rules 33, 34 and 35 of the Detention Centre Rules 2001 (2001 SI No. 238) provide as follows:
“ 33. — Medical practitioner and health care team
(1) 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]. …
34. — Medical examination upon admission and thereafter
(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.
35. — 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 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 has been common ground throughout that these rules applied at the material times to Brook House and to Harmondsworth, which were immigration removal centres (IRCs), but not to Larne House which was a STHF. However, the Appellant's case before the judge and before us was/is that the Respondent's policy and...
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