R SK v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 18 January 2017 |
| Neutral Citation | [2017] EWHC 1228 (Admin) |
| Docket Number | CO/1814/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 January 2017 |
[2017] EWHC 1228 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Fraser
CO/1814/2016
Mr Gordon Lee (instructed by Duncan Lewis) appeared on behalf of the Claimant
Mr Richard Evans (instructed by the Government Legal Department) appeared on behalf of the Defendant
This is an unlawful detention claim by SK against the Secretary of State for the Home Department arising out of her detention when apprehended by the authorities on a routine inspection visit of workers at a hotel in central London. On 21 February 2016, she was detained. Due to the history of the case, I am just going to give slightly more procedural background than would otherwise be the case.
When detained on 21st February 2016, she was sought to be processed within something that was called the Detained Asylum Casework ("DAC") procedure. She did not have a Rule 34 assessment the day after she was detained, or within 24 hours. That assessment was eventually performed on 5 April 2016. On that date, she appears on the papers also to have been given a mental health assessment. There was also what is called a Rule 35 report performed by a doctor. That report forms the subject matter of ground 2 of the grounds upon which she relies today.
The delay in the performance of the Rule 34 assessment forms ground 1. All of the other grounds go to the lawfulness of the DAC procedure generally. That has been resolved conclusively against the applicant in a decision of Cranston J, which is called Hossain & Others v Secretary of State for the Home Department [2016] EWHC 1331 (Admin). On 10 August 2016, in a case called TH (Bangladesh) and Others v Secretary of State for the Home Department [2016] EWCA Civ 815 the Court of Appeal refused permission to appeal the judgment of Cranston J in Hossain.
Therefore, grounds 3 and following of the many numbered grounds brought in the judicial review in this case are not open for argument to the applicant. However, grounds 1 and 2 are not caught by the decision in Hossain. I have already explained the basis of ground 1 which relies on delay in performing the Rule 34 assessment. Ground 2 relies on the contents of what is referred to in shorthand as the "Rule 35 report".
When the applicant was interviewed by the doctor, the doctor ticked box three in section 3 of the report, namely the box that says, "I have concerns that this detainee may have been the victim of torture". That is the view of the doctor, as is shown by the use of the first person in the phrase "I have concerns". There is then in Section 4 a box ticked by him which states "As far as I know, the detainee's legal representative is aware of this issue." That has been ticked "yes". In Section 5, headed "Relevant clinical information," which is set out in the table under numbered paragraph 2 the following is stated:
"The detainee has discussed the following and I am concerned that this individual might have been a victim of torture. The following information is offered to enable the Home Office to consider the case further."
One of the questions on the form immediately in that table is as follows:
"What appears to have happened? Include as much detail as is practical…"
In the corresponding box, the doctor has recounted what she has been told about the sexual abuse suffered by the applicant. These concern threats to kill her, and physical abuse suffered by the applicant at the hands of her husband in Mongolia. "To what extent does this now impact on the individual?" is the second question. The answer to that provides certain further information in the text, including the presence of scars on the applicant's hands from the abuse, which are also entered in diagrammatic form on something called a "body map".
There is a further question printed on the form which asks the examining doctor:
"Is there anything that may raise a concern to the authenticity of these comments? Include any other explanation for the above findings that you may be aware of that may be...
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