Reported Case

In a judgment handed down by the Administrative Court today, Duncan Lewis has secured damages for a victim of torture. The Claimant was unlawfully detained for a short period at Harmondsworth Immigration Removal Centre (‘IRC’) by the Secretary of State for the Home Department. The judgment, Jayeola v Secretary of State for the Home Department [2016] EWHC 2335 (Admin), which is attached, is helpful in debunking misconceived points commonly taken by the Secretary of State when defending decisions to refuse to accept Rule 35 reports as independent evidence of torture and consequently maintain detention. In particular, Judge Swift QC holds that:

1) Chapter 55.10 of the Enforcement Instructions and Guidance “has a strong precautionary characteristic such that the application of the policy against detention does not depend on evidence that the detainee continues to suffer from any of the possible consequences of torture (or would do so if subject to immigration detention).” [26]

2) It is immaterial that the IRC doctor conducting the Rule 35 report or anyone else at the IRC expressed “no cause for concern for the Claimant’s medical condition”: the pivotal and only question is whether there is independent evidence that the Claimant had been tortured in Nigeria: “given the way in which the material part of paragraph 55.10 of the EIG is formulated, I do not consider that reliance on the Claimant’s (good) health can provide the very exceptional circumstances that are required for immigration detention to be in accordance with the Secretary of State’s policy”. [41]

3) It was held that it is “striking that the policy, as it applies to persons who may have suffered torture, does not seek to distinguish between persons who continue to suffer from the physical or mental health consequences of torture, and those who do not, or does not identify as material whether or not continuation of immigration might be likely adversely to affect the person concerned by reason of the fact that in the past he may have been tortured. [41]

4) The exhaustion of appeal rights, the fact that the Claimant remained in the UK when he ought to have left voluntarily, the absence of any ties to the community which might assist release subject to conditions such as deporting requirements, did not constitute ‘very exceptional circumstances’ – “These matters do not approach that level”. [42]

5) Applying Secretary of State for the Home Department v BA [2016] EWCA Civ 458, the Defendant and the Courts should avoid a prescriptive approach to an analysis of Rule 35 reports: “Although these process instructions are very useful in practice, they are no more than rules of thumb. What ultimately matters is the assessment of what happened in any particular case in which it is contended that following a Rule 35 report, a person has been unlawfully detained.”; “the requirement for independent evidence is a requirement for evidence that has a sufficient objective quality. [29]

6) In respect of the provision at Chapter 55:10 of the EIG that if there is independent evidence of torture, detention would “normally” be suitable “only in very exceptional circumstances”, the use of the word “normally” adds nothing: “Thus if there is independent evidence that the Claimant had been tortured… his immigration detention would be contrary to the Secretary of State’s policy unless there were very exceptional circumstances. [30]

The claimant was awarded substantial damages for the short period of unlawful detention.

Legal Team: Toufique Hossain and Rebecca Carr at Duncan Lewis, Raza Halim counsel – Garden Court Chambers

Find full details of this case on Bailii’s website here.