The Queen (on the application of Sarrar Subahi Ibrahim) v Secretary of State for the Home Department

Hearing dates: 20 January 2016

Philip MottQC:

The Claimant is a Sudanese national who, on 10 August 2015, was granted asylum in the UK. He challenges the lawfulness of an earlier period of detention on two alternative grounds:

i) Between 19 August and 29 September 2014, as a breach of the Defendant's published policy not to detain those where there is independent evidence that they had been tortured, save in very exceptional circumstances.

ii) Between 27 August and 29 September 2014 as a breach of the Hardial Singh principles, as removal was no longer imminent once these judicial review proceedings had been started.

The facts

The Claimant was born on 31 January 1982. On 22 April 2014 he and another man were encountered at Newport Pagnall services on the M1 motorway. They were soaking wet and said they had come to the UK in the back of a lorry. They were arrested and taken into police custody. The Claimant was then sent to Yarl's Wood Immigration Removal Centre.

On 24 April 2014 the Claimant was given an asylum screening interview. His account of his journey from Sudan to the UK was as follows:

"30/9/2012 left Sudan and travelled to Turkey by lorry. Stayed 2 mths and 9 days. Travelled to Bulgaria by car. Stayed till 4/11/13. I was forced to give fingerprints. It was difficult to leave; the police caught me and beat me up. I travelled to Serbia by car, stayed 8 days. Travelled by car and caught in Hungary. 2 weeks in Hungary. Then to Italy by car, 8 days in Italy, then to France by train. 4 mths 10 days in France in Jungle in Calais. I was arrested by police and fingerprinted. Then lorry to UK. Arrived 22/4/14. Underneath a lorry for 5 hours."

In answer to questions on the screening interview form about his health, the Claimant said he did not have any medical conditions or disability. The basis of his claim for asylum was recorded as follows:

"I will be arrested, tortured and killed. I have a problem with security police because of my ethnicity, they accused me of supporting the opposition military organisation in Sudan."

In relation to criminality, and whether he had ever been arrested or charged in any country, he said:

"27/7/12 — because I was accused of supporting the opposition in Darfur. Held for 32 days, held in Jamaa Al Kabr in Bahri. Released with conditions not to seek medical treatments and provide them with information."

It appears from what he said about his travel to the UK that he had left Sudan about a month after his release on conditions, and presumably in breach of those conditions. Thus he said he would be liable to arrest and torture in the future if returned to Sudan. There was no allegation in his screening interview that he had been tortured in the past while held in Sudan.

The Claimant went on to state that he was married, but his wife was in Sudan. He had no children.

On 25 April 2014 the Claimant was granted temporary admission and released from detention with reporting conditions.

On the same day a formal request was made to Bulgaria to accept him under Article 18(1)(b) of the Dublin III Regulation. Bulgaria accepted responsibility on 30 April 2014.

Also on 30 April 2014 the Defendant wrote a letter refusing the Claimant's asylum claim in the UK and certifying it on third country grounds so that there was no right of appeal.

On 28 May 2014 the Claimant moved from Birmingham to Huddersfield, and continued reporting regularly after that move.

On 13 August 2014 the Claimant was detained when he reported, with a view to his swift removal to Bulgaria.

On arrival in detention on 13 August 2014 the Claimant was seen by a nurse who completed a Health Screening Questionnaire. The Claimant disclosed that he had Hepatitis B. In answer to the specific question "Have you ever been a victim of Torture?" the "Yes" box was ticked, with the words written alongside "in Sudan & Bulgaria". No further details were recorded, nor is it suggested that any were given on this occasion.

The Claimant was seen by a doctor on 19 August 2014. The doctor completed a report form under Rule 35 of the Detention Centre Rules 2001. Section 3 is headed "Nature of Report" and continues in the printed form as follows:

"I hereby report in relation to the following section (please mark as appropriate) of Rule 35. Please tick all those that may be relevant, as some detainees may be affected by multiple issues.

(1) This detainee's health is likely to be injuriously affected by continued detention or any conditions of detention.

(2) I suspect this detainee may have suicidal intentions, and should be managed within the ACDT process.

(3) I have concerns that this detainee may have been the victim of torture."

Each of the numbered options was followed by a box where a tick mark could be inserted. In relation to the Claimant the doctor ticked box (2), but left boxes (1) and (3) blank.

Section 5 of the form is headed "Relevant clinical information", and is followed by printed instructions to the doctor as follows:

"1. Please set out the clinical reasons leading to your conclusion at (1), (2) and/or (3) above. This should include relevant medical and psychiatric history; current concerns; and findings from a mental state examination and physical examination. Where relevant, a risk assessment of suicidal ideation/intent should also be conducted.

2. Please ensure that a body map is completed and attached in cases involving scarring or other physical marks."

There followed, in the Claimant's case, a manuscript record by the doctor of his findings:

"Seen in this Health Care Centre. He alleges he caught hepatitis B in Bulgaria. However I put it to him that his GP put it to him that the condition was chronic and he says that he was aware of it in Sudan. So it is evident that he was Hepatitis B positive in Sudan. He is Hepatitis C negative at screening by the GP. Test dated 18.06.14.

He says if he is sent to Bulgaria he will not go but will die in the UK. I have initiated an ACDT.

He was asked about ill-treatment in Sudan but refused to talk about it. He only wanted to talk about catching Hepatitis B in Bulgaria — because he was starving in Bulgaria living on bread and dates. I explained this would not cause Hepatitis B.

Difficult to assess but I felt that his threat to die in UK was credible."

The body map appears on the form, but there are no markings on it. The form discloses that a Health Care Assistant was with the doctor during the consultation, and he had the benefit of an interpreter.

On 21 August 2014 the UK Border Agency wrote to the Claimant about the Rule 35 report from the doctor. It summarised the findings of the doctor as set out above. The letter continued:

"The doctor has produced the report on the basis that he suspects you may have suicidal intentions and should be managed within the ACDT process in the Detention Centre. However, the doctor has not set out any clinical reasons to suggest there is evidence to consider you to be a victim of torture. Therefore the Rule 35 report will not be treated as independent evidence of torture.

As it is the intention of the Third Country Unit to return you to Bulgaria and not Sudan, your issues and concerns of any ill treatment there should be raised with the Bulgarian authorities on your arrival.

It has been decided that your detention will be maintained."

Removal Directions were issued on 18 August, setting a date of 28 August 2014 for his removal. The Claimant was given a notice setting out reasons for his detention. Three relevant factors were identified:

"Your removal from the United Kingdom is imminent.

You have used or attempted to use deception in a way that leads us to consider you may continue to deceive.

You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK."

On 26 August 2014 the Claimant instructed Duncan Lewis, his current solicitors. The following day, 27 August, they wrote a letter to the Defendant making fresh representations under Article 3 of the ECHR and issued a Judicial Review claim.

Both the fresh representations and the judicial review grounds assert that the Claimant had informed the Defendant on more than one occasion that he was a victim of torture. Beyond this, the challenge by both routes was to the decision to remove him to Bulgaria. It was asserted that there were systemic deficiencies in the treatment of asylum seekers in Bulgaria such that EU member states should halt all transfers of asylum seekers to Bulgaria. Alternatively, conditions were such as to make it a breach of Article 3 of the ECHR to return a vulnerable asylum seeker such as the Claimant to Bulgaria.

Neither the fresh representations nor the judicial review claim sought to challenge the detention of the Claimant in the UK as being in breach of the Defendant's policy on victims of torture. The judicial review claim was started in the Upper Tribunal, which had no jurisdiction to deal with unlawful detention claims.

That same day, 27 August 2014, there is an entry in the GCID records that the Claimant had "Refused to transfer this morning he...