The Queen (on the applicant of EO, RA, CE, OE and RAN) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Burnett,CE |
| Judgment Date | 17 May 2013 |
| Neutral Citation | [2013] EWHC 1236 (Admin) |
| Docket Number | Case No: CO/5330, 5333, 5335, 5336 & 5338/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 May 2013 |
[2013] EWHC 1236 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Burnett
Case No: CO/5330, 5333, 5335, 5336 & 5338/2012
Paul Brown QC, Chris Buttler and Jamie Beagent (instructed by Leigh Day) for the Claimants
Tim Eicke QC and Joanne Clement (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 29, 30, 31 January and 1 February 2013
Approved Judgment
Introduction
None of the five claimants whose cases were listed for hearing together has any connection with another save that each contends that he or she has been the victim of "torture" in the past. Each was placed in immigration detention pursuant to powers conferred upon the Secretary of State by Parliament through primary legislation. However, each contends that the Secretary of State failed to apply her detention policy relating to victims of torture. The failures are said to amount to breaches of public law which "bore upon and were relevant to" the decisions to continue detention. That is the formulation found in R (Lumba) v. Secretary of State for the Home Department [2012] AC 245. In those circumstances, the claimants say that their detention was, or became, unlawful. One claimant also alleges that the circumstances of his detention were in breach of Article 3 of the European Convention on Human Rights.
The focus of the claimants' attack upon the actions of the Secretary of State has been through Rules 34 and 35 of the Detention Centre Rules 2001 ("the 2001 Rules") and the policy set out in chapter 55 of the "UKBA Enforcement Instructions Guidance". The claimants also point to the "Detention Rule 35 Process Guidance" and the "Detention Service Order O3/2008" as forming part of the policy which the Secretary of State articulated and was obliged to follow.
The claimants are supported by Medical Justice, a charity that provides independent medical and legal advice to immigration detainees. Permission was granted in these cases on the basis that it was arguable that certain periods of detention were unlawful (indeed the Secretary of State has conceded in respect of a number of claimants that there were periods of unlawful detention) and that there are live arguments about whether, in respect of any periods of unlawful detention admitted or proved, the appropriate remedy should be limited to a declaration and nominal damages, rather than compensatory damages. That would be on the basis that the claimant concerned would anyway have been detained despite the breach of policy. In short, the task is to identify in respect of each claimant any periods of unlawful detention and specify in respect of each whether nominal or compensatory damages should be recoverable. One of the cases settled during the course of the hearing. The involvement of Medical Justice was prompted not only by its support for the claimants as individuals, but also by its belief that there is mounting evidence of a systematic failure on the part of the Secretary of State to release victims of torture from detention despite the policy being (in broad terms) that they should remain in custody only in very exceptional circumstances. Medical Justice is very critical of the way in which the policy has been operating and of the quality of medical involvement in reporting concerns about torture. The systematic breach of the policy was raised as a separate ground in the claim forms. On 25 July 2012 Ouseley J heard an oral application for permission on that matter (as well as generally in the case of RAN). He refused permission to raise the alleged systematic breach of the 2001 Rules and policies as a freestanding ground of challenge, albeit observing that the evidence would be before the court. It is before the court; and it is disturbing. However, an important consequence of his refusing permission was that the Secretary of State did not respond in any detail to the material dealing with that issue. Mr Brown QC's skeleton argument sets out the evidence on which Medical Justice relies, but Mr Eicke QC did not respond in kind. In view of the refusal of permission there was no argument on the general issues raised by that proposed ground. In those circumstances it would be unwise to comment further on the material placed before the court in support.
The argument in these cases was wide-ranging, supported by extensive citation of authority. The evidence relating to each claimant is detailed. It will be convenient to begin by setting out the statutory and internal Home Office materials which, as is common ground, provide the framework for deciding the scope of the Secretary of State's power to detain. I shall then summarise what I understand to be agreed between the parties before identifying the legal issues which fall to be determined. Having discussed those legal issues I will turn to the individual circumstances of each of the remaining four cases.
The Power to Detain
The Secretary of State has statutory power to detain illegal entrants, overstayers, those in breach of their conditions of leave to enter the United Kingdom and those who are refused leave to enter. That power is subject to a number of implied limitations, conveniently described as the Hardial Singh principles (see R v Secretary of State for the Home Department ex parte Hardial Singh [1984] 1WLR 704). Nothing in these cases turns upon the different underlying statutory powers to detain or upon Hardial Singh.
The Secretary of State's detention policy is articulated principally through Chapter 55 of the Enforcement Instructions and Guidance. That refers to the 2001 Rules. They were made pursuant to section 153 of the Immigration and Asylum Act 1999. They are concerned with "the regulation and management of Detention Centres" and may, amongst other things, "make provision for the safety, care, activities, discipline and care of detained persons". The policy relating to detention is further explained in the Detention Rule 35 Process Guidance and, as relevant at the time of the detention of these claimants, the Detention Service Order 03/2008. That has since been superseded by the Detention Service Order 17/2012.
Rules 33, 34 and 35 of the 2001 Rules provide:
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.
(2) Every detention centre shall have a health care team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at that centre.
(3) Each member of the health care team shall (as far as they are qualified to do so) pay special attention to the need to recognise medical conditions which might be found among a diverse population and the cultural sensitivity appropriate when performing his duties.
(4) The health care team shall observe all applicable professional guidelines relating to medical confidentially.
(5) Every request by a detained person to see the medical practitioner shall be recorded by the officer to whom it is made and forthwith passed to the medical practitioner or nursing staff at the detention centre.
(6) The medial practitioner may consult with other medical practitioners at his discretion.
(7) All detained persons shall be entitled to request that they are attended by a registered medical practitioner or dentist other than the medical practitioner or those consulted by him under paragraph (6), so long as —
a) The detained person will pay any expense incurred;
b) The manager is satisfied that there are reasonable grounds for the request; and
c) The attendance is in consultation with the medical practitioner.
(8) The medical practitioner shall obtain, so far as reasonably practicable, any previous medical records located in the United Kingdom relating to each detained person in the detention centre.
(9) The health care team shall ensure that all medical records relating to a detained person are forwarded as appropriate following his transfer to another detention centre or a prison or on discharge from the detention centre.
(10) All detained persons shall be entitled, if they so wish, to be examined only by a registered medical practitioner of the same sex, and the medical practitioner shall ensure that all detained persons of the opposite sex are aware of that entitlement prior to any examination.
(11) Subject to any directions given in the particular case by the Secretary of State a registered medical practitioner selected by or on behalf of a detained person who is party to legal proceedings shall be afforded reasonable facilities for examining him in connection with the proceedings.
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.
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