Secretary of State for the Home Department (First Appellant) v R BA (Eritrea) (First Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Lewison,Lord Justice David Richards |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] EWCA Civ 458 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 2016 |
| Docket Number | Case Nos: C4/2015/0151/QBACF and |
[2016] EWCA Civ 458
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT
HIS HONOUR JUDGE McKENNA (1) Appellant
PROFESSOR ELIZABETH COOKE (2) Appellant
CO17099/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice Lewison
and
Lord Justice David Richards
Case Nos: C4/2015/0151/QBACF and
C4/2015/1655/QBACF
Ms Stephanie Harrison QC and Ms Jo Wilding (instructed by Fadiga & Co) for the First Appellant
Mr Zainul Jafferji (instructed by the Tamil Welfare Association — Newham) for the Second Appellant
Mr Rory Dunlop (instructed by Government Legal Department)
Hearing dates: 19 and 20 April 2016
The Secretary of State has a range of broad statutory powers to detain individuals for immigration purposes, including powers to detain: (i) those seeking entry, pending a decision whether to grant leave to enter (Paragraph 16 of Schedule 2 to the Immigration Act 1972); (ii) those who are liable to administrative removal including illegal entrants, overstayers, and those in breach of their conditions (Paragraph 16 of Schedule 2 to the Immigration Act 1972); (iii) those liable to deportation (Paragraph 2 of Schedule 3 to the 1972 Act; and (iv) foreign criminals sentenced to 12 months' imprisonment or longer, pending a decision to deport (Section 36 UK Borders Act 2007). The power to detain is subject to two main sources of limitations, the so called Hardial Singh principles (so named because they were first formulated in the judgment of Woolf J in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB)) and Home Office policies which in various ways regulate detention. Of particular relevance in this case is the policy set out in Chapter 55 of the Enforcement Instructions and Guidance ('EIG').
The Hardial Singh principles identify how the power to detain pending removal should be exercised. They were summarised by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 paras. 46–47 in a formulation which was approved by the Supreme Court in R (Lumba and Mighty) v SSHD [2011] UKSC 12 para. 22 per Lord Dyson:
"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 that 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 Hardial Singh principles restricting the power to detain are supplemented by the Home Office Policy. Chapter 55.10 of the EIG recognises that for certain categories of person detention will normally be inappropriate even where the Hardial Singh principles are otherwise satisfied. There is always a presumption of liberty even for those illegally in the country, but it is heightened for persons falling within the relevant categories. However, the presumption may still be rebutted where there is a sufficiently strong public interest to justify detention.
One of the categories identified is persons in respect of whom "there is independent evidence that they have been tortured". Sometimes that evidence will be provided by an appropriate medical practitioner pursuant to Rule 35 of the Detention Centre Rules 2001. The principal issue arising in both these cases is when a Rule 35 report can be said to constitute such independent evidence. A related question is whether, even where it does constitute such evidence, it would nonetheless be appropriate for detention to continue. The case of ST also raises a number of additional issues which I will address separately.
If in detaining a person the Secretary of State acts in breach of public law principles material to the decision to detain, the detention will be unlawful and will amount to false imprisonment: see the Lumba and Mighty case. However, the decision of the Supreme Court in that case also established that if the Secretary of State shows on the balance of probabilities that the individual would have been detained even had the law been properly applied, any damages will be nominal.
The relevant policy provisions
Paragraph 55.5 of the EIG states that there is a presumption in favour of temporary admission or temporary release even for those liable to be removed from the UK. It is only if there are no reasonable alternatives to detention that it should be authorised, and there must be strong grounds for believing that a person would not comply with any conditions of release.
Paragraph 55.10 identifies certain categories of case where the presumption against detention is particularly heightened. The relevant provisions are as follows:
"Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons …"
There is then a list of categories including unaccompanied children, the elderly, pregnant women, persons suffering from serious medical conditions or serious mental illness which cannot be satisfactory managed in detention, and
"Those where there is independent evidence that they have been tortured."
The general presumption in favour of liberty, reflected in paragraph 55.5, ought in many, perhaps most, cases to be sufficient to ensure that a person is not detained pending removal. Paragraph 55.10 is important with respect to those persons who are considered to be a real risk of absconding or committing offences – and where they have been detained, that fact alone would suggest that they fall into that category — but not such a grave risk as to overcome the particularly strong presumption in favour of release. The factors militating against release must be particularly powerful once independent evidence of torture is established.
Once someone is detained, Rule 34 of the Detention Centre Rules 2001 requires that person to be examined both physically and mentally by a medical practitioner within 24 hours, unless the person objects. The medical practitioner may produce a report issued pursuant to Rule 35 and sometimes this may constitute independent evidence of torture.
Rule 35 is, so far as is relevant, as follows:
" Special illnesses and conditions (including torture claims)
35.-(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 …
(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."
There is a pro-forma document which is typically used to provide the report and it includes in part boxes which the medical practitioner is expected to tick where appropriate.
There is a Detention Services Order, 17/2012, which provides further guidance on the application of Rule 35 and focuses in particular upon those reports which suggest that a detained person may have been the victim of torture. The Order deals specifically with the procedures for recording and dealing with such reports. Paragraphs 20 to 25 deal with the approach which medical practitioners should take when preparing and writing reports under Rule 35:
"20. If the medical practitioner is concerned that a detainee may have been a victim of torture, he/she must always submit a Rule 35(3) report. Rule 35 places medical practitioners at the centre of the process and fundamentally it is for the medical practitioner to decide if he/she has concerns in a professional capacity that a detainee may have been the victim of torture. The medical practitioner should always state clearly the reasons why he/she has concerns arising from the medical examination – specifically the medical evidence which causes these concerns, including all physical and mental indicators [emphasis in the original]."
21. The medical practitioner has no obligation to report an allegation from a detainee if this allegation does not cause the medical practitioner him/herself to be concerned, in the context of the overall medical examination, that the person may be a victim of torture. However, if an allegation does cause the medical practitioner to be concerned, then he/she should report it. The medical practitioner should set out clearly if his/her concern derives from an allegation with no or limited...
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