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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

03 JUL 2013

R (on the application of EO and Others) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin); (2013) PLLR 080

Immigration - Detention - Torture - Medical reports

Regarding the issue of torture, the Court found that a failure to consider medical reports indicating that a detainee had been the victim of torture rendered their continued detention unlawful unless there were very exceptional reasons for detention to be maintained.

17 May 2013

Administrative Court

Burnett J

(1)        This case involved five unconnected Claimants, each of whom contended that they had been the victim of torture in the past. Each Claimant had been placed in immigration detention, but alleged that the Defendant had failed to apply her detention policy relating to the victims of torture.

(2)        The Claimant's grounds of challenge attacked the Defendant's use of Rules 34 and 35 of the Detention Centre Rules 2001 and the policy set out in chapter 55 of the UK Border Agency Enforcement Instructions Guidance. The policy required medical practitioners to identify why they were concerned about torture and demanded a review of continued detention in light a report setting out concerns as to torture. If it was determined that detention was to continue, a detention review considering the material relating to the torture was required to be completed.

(3)        The substantive question arising in this case was whether there had been independent evidence that the relevant person had been tortured; and if yes, it was alleged that the Defendant could only maintain detention if there were very exceptional circumstances.

(4)        The general raised by this challenge concerned:

(a)        Did a failure to conduct a medical examination within 24 hours of detention (thereby failing to comply with Rule 34 of the Immigration Rules) result in detention thereafter being unlawful. If so, did the detainee have to show that he would have been released earlier?

(b)        Where a medical practitioner was concerned that a detainee may have been tortured, did the 2001 Rules require him to express whether his medical examination supported that concern?

(c)        In the absence of such a view, did the Defendant's policy require the case worker to (i) request such information from the medical practitioner; or (ii) seek further information by referring the detainee to a suitably qualified practitioner?

(d)        Did it breach the immigration rules for the report to be prepared by a nurse, but approved by a medical practitioner?

(e)        Was the detainee's credibility relevant in the assessment of whether there was independent evidence of torture, or did this fall to be considered in whether there were ‘very exceptional circumstances' requiring detention to be maintained?

(f)        If false imprisonment was established, what standard of review should the Court apply to the issue of whether he would have been detained anyway?

(g)        Who bore the burden of proving that the person would have been detained anyway?

(h)        What did the term torture mean in the Immigration Rules and the Defendant's policy?

(5)        HELD: The 2001 Immigration Rules addressed the regulation of management of detention centres and had no bearing on the power of the Defendant to detain. The failure to comply with those rules did not render detention unlawful. It follows however, that a failure to arrange an examination of a detainee pursuant to the 2001 rules would be relevant to the decision to detain.

(6)        The immigration rules and the Defendant's policy did not require that the report completed be produced by mental health specialists, and it would be a mistake to conflate what was desirable with what was the actual policy. There would be no failure by the Defendant to comply with her policy if a medical practitioner missed indications of torture.

(7)        There was nothing in the wording of the policy documents which demanded a case worker seek further information under a further medical report. However, there was also nothing that prevented the case worker from doing this.

(8)        It was not an automatic failure to comply with policy requirements for a medical report to be prepared by a nurse and then later approved by a medical practitioner.

(9)        Regarding the issue as to a detainee's credibility in assessing whether there was independent evidence of torture, the Court held that the underlying credibility of a detainee did not go to the issue of whether something constitutes independent evidence of torture. Evidence of torture necessarily demands that it is something beyond the claims of the detainee.

(10)     The burden was on the Defendant to shown that the Claimant would have been detained anyway, even if false imprisonment were established.

(11)     The Court could not find sufficient reasons to depart from the common understanding of the word ‘torture', despite it not having been defined in the policy. The term torture was thus held to mean ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind'.

             Individual Cases

(12)     In relation to the individual case of EO, the Court held that although the initial medical report had not identified some scarring that could have gone to the question of torture, this did not lead to the conclusion that detention therefore became unlawful. The caseworker had been entitled to conclude that there was no independent evidence of torture.

(13)     Nonetheless, a later medical report was found to have not been evaluated and recognised as independent evidence of torture, and the Defendant had failed to demonstrate that the Claimant would have been detained anyway. As such, his detention became unlawful on the date that he would have been released had the proper review taken place.

(14)     CE, a Bolivian national, entered the UK in 2011. She was issued with removal directions, and indicated her willingness to leave. CE later applied for judicial review, alleging that she and her partner had been the victims of torture, and had been shot at whilst in London by those pursuing them. CE subsequently denied that she had entered the UK with the man who she initially claimed was her boyfriend. In January 2012 she gave a full account of what treatment had been inflicted upon her. Notice of removal was served upon CE, the Defendant having been influenced by the many inconsistencies in her accounts of what had happened to her. A medical report completed in January 2012 found the Claimant's injuries to be consistent with the treatment of torture that she had described.

(15)     The Court found that the medical report had identified scars which were consistent with CE's claims, and this should have been considered as independent evidence of torture. The failure to do this rendered CE's detention unlawful from the date that the report should be been acted upon, namely 10th January 2012. Further, an objective assessment of CE's credibility on 10 January 2012 would not have resulted in a finding that she lacked ‘all credibility'.

(16)     OE, a Nigerian national, alleged that appropriate medical reports had not been completed during his detention, and that the Defendant's attempt to forcibly remove him on 26 January 2012 amounted to inhuman and degrading treatment protected by Article 3 ECHR.

(17)     The Court held that the more than two week delay in considering a medical report received shortly before 26 March 2009 rendered detention after 9 April 2009 to be unlawful.

(18)     The Court held that there was no evidence produced by OE to establish a breach of article 3 ECHR. The DVD of his removal showed a struggle, but only because OE was resisting removal. This part of the claim was therefore not made out.

(19)     RAN challenged the delay in detaining him after a medical report identifying him as the victim of torture. The Court considered that the failure to consider the relevant medical report within two weeks of its receipt rendered RAN's detention after this period unlawful. Nonetheless, the decision makers had been entitled to conclude that there were very exceptional reasons for maintaining detention. RAN was therefore not entitled to compensatory damages.

Claim succeeded.

Key Paragraphs

[17] - Exceptional circumstances.

[19] - Issues.

[49] - Not render detention unlawful.

[51] - Relevant decision detain.

[59] - Not conflate desirable and actual policy.

[59] - Medical practitioner missed indicators.

[61] - Not required obtain further report.

[62] - Nurse prepares report.

[68] - Relevance credibility.  

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