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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Anugha, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1) [2017] EWHC 1391 (Admin) (15 June 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1391.html Cite as: [2017] EWHC 1391 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/06/2017

Ms Leigh-Ann Mulcahy QC :

Introduction, Issues and Conclusion

1. The issue for determination in this case is whether the Claimant, a Nigerian national, was unlawfully detained in an Immigration Removal Centre ("IRC") pending removal from the United Kingdom from 14 April 2016 to 22 July 2016 (a total period of 100 days), or for any part of that period.
2. This broad issue raises the following specific questions for determination:

a) Issue (1): Did the Defendant have a power to detain and was it exercised lawfully?

b) Issue (2): Did the Defendant comply with her published policy in taking the decision to detain the Claimant and in maintaining her detention?

c) Issue (3): Did the Defendant's ongoing decision to detain the Claimant throughout her period of detention comply with the Hardial Singh principles, summarised by Dyson LJ (as he then was) in R (I) v Home Secretary [2002] EWCA Civ 888; [2003] INLR 196?

3. Although the Claimant, in her skeleton argument for the hearing, purported also to challenge an earlier period of detention in an IRC between 29 July 2015 and 24 September 2015, this was not the subject of her claim which sets out at Section 3 of her Claim Form the decisions that she is seeking to review including "the decision to detain Applicant 14-4-16…" (emphasis in bold added). This is the ground for which she was granted permission to proceed with a claim for judicial review. Accordingly, I will focus in this judgment on the 2016 period of detention that is the subject of the claim and address the 2015 period of attention only by way of factual background.
4. My conclusions, based on the evidence in this case, are as follows:

a) In relation to Issue (1), the Defendant had statutory power to detain the Claimant under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 as a person in relation to whom there were reasonable grounds for suspecting that they were a person in respect of whom removal directions might be given. At the time of her detention, the Claimant was an Overstayer in relation to whom there were reasonable grounds to suspect that directions might be given for her removal from the UK. Accordingly, the Defendant's power was exercised lawfully.

b) In relation to Issue (2), save in one respect, the Defendant did comply with her published policy when taking decisions relating to the Claimant's initial and ongoing detention. The respect in which the Defendant failed to comply with her published policy was in failing to refer the Claimant for a Rule 35 assessment as quickly as possible following the Claimant raising an allegation of torture in her initial assessment on 14 April 2016. The Rule 35 assessment only took place 16 days later on 30 April 2016. However, in circumstances where the Rule 35 report dated 3 May 2016 did not amount to independent evidence of torture, I have concluded that, whilst relevant to the decision to detain and an unlawful deviation from the Defendant's policy, the same period of detention would inevitably have occurred even if there had been full compliance with the guidance. Accordingly, the Claimant is entitled only to nominal damages (and not to compensatory damages) in this regard.

c) In relation to Issue (3), the Defendant's ongoing decision to detain the Claimant throughout the period of detention did comply with the Hardial Singh principles because (i) the Claimant was detained with the intention of removal; (ii) the period of detention was reasonable in all the circumstances as detailed below; (iii) it was not apparent before the transfer to the Administrative Court and it becoming clear that there was no reliable period within which the judicial review claim would be determined that removal could not be effected within a reasonable period, at which point the Claimant was released; and (iv) the Defendant did act with reasonable diligence and expedition to seek to effect removal.

The Factual Background

5. The relevant factual immigration and detention history is as follows.
6. The Claimant, whose date of birth is 30 December 1978, entered the United Kingdom on 17 January 2007 with entry clearance as a Tier 4 student valid until 31 May 2008. This was later amended to give Leave to Remain until 30 November 2008.
7. On 1 December 2008, the Claimant submitted a Tier 1 Post Study application. On 11 December 2008, this application was granted with Leave to Remain until 11 December 2010.
8. On 7 December 2010, the Claimant submitted a Tier 4 Student application. The application was granted on 20 January 2011 with Leave to Remain extended until 29 February 2012.
9. On 27 February 2012, the Claimant submitted a further Leave to Remain application as a Tier 4 Student). The application was granted on 14 November 2014 with Leave to Remain extended until 28 February 2015.
10. On 8 March 2013, the Claimant's Leave to Remain was curtailed with Leave to Remain to expire on 7 May 2013 on the basis that the Claimant had ceased to study. There was no right of appeal.
11. On 4 May 2013, the Claimant submitted a further Tier 4 Student application. On 25 February 2014, the application was granted with Leave to Remain valid until 28 February 2016.
12. On 11 December 2014, the Claimant's Leave to Remain was curtailed to expire on 14 February 2015 on the basis that the Claimant's sponsor ceased to have a licence. There was no right of appeal.
13. On 14 February 2015, the Claimant submitted a further Leave to Remain application, outside the Immigration Rules on compassionate grounds. This was refused with an out of country right of appeal on 7 May 2015 but the decision was not served.
14. On 29 July 2015 the Claimant was encountered, detained and served with a RED.0001, RED.0003 and IS91R as an Overstayer (although, as the Defendant candidly conceded at the hearing, it was arguable that she was not technically an Overstayer because she was entitled to remain until she was given notice and she was not served with notice of the leave to remain decision until after she was detained).
15. On 14 August 2015, the Claimant lodged a judicial review claim in the Upper Tribunal Immigration and Asylum Chamber against the service of the RED.0001 and raised Article 5 and 8 European Convention on Human Rights ("ECHR") grounds.
16. On 27 August 2015, the Decision was served refusing the application of 14 February 2015 for Leave to Remain, certified under section 94(1) of the Nationality, Immigration and Asylum Act 2002. The RED.0001 served on 29 July 2015 was withdrawn.
17. On 2 September 2015, the judicial review claim was refused as totally without merit.
18. On 9 September 2015, the Claimant lodged a further judicial review claim against the decision of 27 August 2015 and on Article 5, 6 & 8 ECHR and certification grounds.
19. On 16 September 2015, the Claimant claimed asylum. Her claim alleged that she had been a victim of torture and rape while in Lagos Airport in 2009. She underwent a screening interview for the asylum claim on 23 September 2015.
20. She was released from detention on 24 September 2015 on temporary admission on the basis that her asylum claim needed to be determined. Whilst on temporary admission, the Claimant was compliant with reporting conditions.
21. On 29 September 2015, the Claimant's second judicial review claim was struck out by the Court for failure to comply with directions (although the nature of the non-compliance was not clear from the material before the Court).
22. On 22 December 2015, the Claimant underwent a substantive interview for her asylum claim.
23. On 26 January 2016, the Claimant's asylum claim was refused and certified as clearly unfounded.
24. On 22 February 2016, officers in the Home Office concluded that detention of the Claimant was necessary because the Claimant had made repeated attempts at unmeritorious application and because she was an Overstayer.
25. A note dated 21 March 2016 recorded that due to her history of noncompliance the Claimant was extremely unlikely to comply with conditions of temporary release knowing that removal was imminent. A GCID note prepared the same day noted:

"Detention is necessary as subject has made repeated attempts at applications that have been refused the latest to be served at her DOR. She was served a RED.0001 on 29-Jul-2015 as an overstayer, this also notified her of her Liability for removal from the UK & also advised of the voluntary return scheme via the RED.0001. Due to her history of noncompliance she is extremely unlikely to comply with conditions of temporary release knowing removal is imminent."

26. On 14 April 2016, the Claimant was re-detained on reporting at Sandford House and was served with the decision refusing her asylum claim on that date. It is the period of detention commencing on this date which is the subject of the present claim.
27. The Claimant's initial detention review stated that the Claimant posed a "low" risk of absconding as she had been compliant with reporting restrictions. The detention was justified on the basis that she was removable within a reasonable timeframe.
28. On 18 April 2016, the Claimant submitted further representations to support a fresh claim for asylum.
29. On 21 April 2016, a seven day detention review was carried out at which the Claimant's risk of absconding was assessed as "high". The reason for that assessment was that the Claimant's previous compliance with reporting restrictions was at a time when she had an outstanding application. It was said that her asylum claim had now been refused and certified so there would be no incentive on her to comply.
30. On 27 April 2016, the Claimant submitted further representations to support a fresh claim for asylum.
31. On 30 April 2016, the Claimant raised a Rule 35 Torture claim with a clinical practitioner, alleging she had been raped and tortured by Nigerian immigration officials in 2009 when she had travelled back to Nigeria. On the same date she was assessed by medical practitioners.
32. On 3 May 2016, the Rule 35 report was produced. The examining doctor, Dr. Ejike, noted that the account was plausible but there was no way of verifying the account.
33. On 4 May 2016, the Defendant completed her Rule 35 response, stating that the report did not amount to independent evidence of torture for the purposes of Enforcement and Instructions Guidance 55.10 ("EIG 55.10") and maintained the Claimant's detention.
34. On 4 May, 6 May and 10 May 2016, the Claimant submitted further representations.
35. On 11 May 2016, the Claimant's detention was reviewed. Her detention was maintained on the basis that "there [was] a reasonable chance she would abscond"; her further submissions had been refused and would be served the following day; and removal directions would be served for her removal on 24 May 2016.
36. On 12 May 2016, the Claimant's further representations were refused with no Right of Appeal. On the same date, the Claimant was served with a refusal letter, RED.0004 Fresh and Removal Directions for return to Nigeria on 24 May 2016.
37. On 13, 16 and 21 May 2016, the Claimant submitted further representations in support of her claim to have been raped and tortured in Nigeria. Included with those submissions were five letters from Dr Nwajuaku of the 'Bey Clinic', Nigeria, purporting to recount medical assessments conducted contemporaneously with the Claimant's alleged torture. All five letters were dated 17 May 2016.
38. On 20 May 2016, the Claimant issued the current judicial review claim in the Upper Tribunal. (This was not served on the Defendant until 24 May 2016.) The claim sought permission for judicial review of the following:

a) The Defendant's decision to remove her dated 12 May 2016.

b) The Defendant's decision of 26 January 2016 to refuse and certify her asylum claim.

c) The Defendant's decision to grant an out of country appeal right dated 26 January 2016.

d) The Defendant's decision to detain the Claimant on 14 April 2016 and to refuse her fresh claim on 12 May 2016.

39. On 21 May 2016, the Defendant responded to all outstanding representations (including those on 10 May 2016, which were not considered in the refusal decision dated 12 May 2016) rejecting them under rule 353 of the Immigration Rules and maintaining removal directions. The Defendant rejected the letters from Dr Nwajuaku as lacking reliability in light of the fact that they were all dated 17 May 2016 for no obvious reason, when they purported to record contemporaneous findings on medical assessments conducted in 2009.
40. On 22 May 2016, the Claimant was moved to the Kingfisher unit of the IRC and placed in an individual room pending removal.
41. On 24 May 2016, the Removal Directions were deferred on account of the judicial review proceedings. The Claimant was then removed from the Kingfisher unit back to the main accommodation.
42. On 31 May 2016, an application was made for temporary admission on behalf of the Claimant by the Habeas Corpus Project.
43. On 8 June 2016, a detention review was conducted and the Defendant decided to maintain detention notwithstanding the ongoing judicial review proceedings and the presumption in favour of release on the basis that:

a) She was not a vulnerable person for the purposes of EIG 55.10;

b) The judicial review was defensible;

c) She has submitted multiple applications on various different grounds which suggested she had no intention of leaving the UK;

d) She was unlikely to comply with reporting restrictions; and

e) Her removal could be effected within a reasonable timescale.

44. On 10 June 2016, the Claimant made further representations on her asylum claim and a request for temporary admission. The application was accompanied by a psychological report from Yarls Wood Detention Centre that noted the Claimant was suffering from low mood, poor sleep and had had suicidal thoughts.
45. On 13 June 2016, the Defendant refused to treat the Claimant's further submissions as a fresh claim.
46. On 20 June 2016, the Claimant was identified as requiring care under the Home Office Policy on Assessment Care in Detention and Teamwork, as she had refused six consecutive meals.
47. On 21 June 2016, the Defendant refused to grant temporary admission on the grounds that:

"Your removal from the United Kingdom was deferred due to a Judicial Review (JR) and this has now been lodged for an expedited decision at Court. You have previously failed or refused to leave the United Kingdom when your leave was curtailed to expire on 14/02/2015. You have failed to be granted any further leave since this date. You then claimed asylum on 16/09/2015 and your claim for asylum was refused on 26/01/2016 and certified meaning you have no in country Right of Appeal against this decision."

48. On 21 June 2016, Upper Tribunal Judge Macleman ordered transfer of the judicial review claim to the High Court on the grounds that it included a challenge to detention. The Defendant received notice of that transfer on 29 June 2016.
49. On 22 June 2016, a GCID note stated:

"Case owner to monitor the special conditions claim of suicide threats – dated 10.06.2016 and to monitor daily the open ADCT raised 20.06.2016 regarding food and fluid refusal – to add to the complex case log and inform SEO [redacted]…of the same Email sent to Yarlswood for update on F&F refusal and update on the intimated suicide threat.

Called detention centre regarding email:

I was informed that the subject was not willing to comply with any attempts to interview her regarding her low mood and refused to get out of her bed. She is currently still on ACDT due to F&F refusal and the spreadsheet would be updated in relation to the status of this and forwarded to NRC SEO to provide notification of her rating at this stage.

Ad hoc detention review completed and emailed to SEO for authorisation."

50. An ad hoc detention review dated 22 June 2016 recorded concerns in relation to the Claimant's food and fluid refusal and her low mood and suicidal thoughts, but decided to maintain detention on the basis that the judicial review timetable was to be expedited and the Claimant's medical concerns could be managed effectively in detention.
51. On 3 July 2016, the Claimant made a further application for temporary admission.
52. On 6 July 2016, the Claimant's detention was reviewed again. The officer noted that there were "vulnerable indicators in this case" but concluded that there was "no evidence that the [Claimant] is medically unfit for detention". It was also acknowledged that "case transfer of the JR may cause delays with progressing the JR" but detention was maintained on the basis that there would need to be further case reviews.

1. On 7 July 2016, the Defendant refused the Claimant temporary admission (although again incorrectly dated 16 June 2016). The refusal stated as follows:

"Whilst there is a presumption in favor of temporary release it has been decided that you should remain in detention for the following reasons:

Your removal from the United Kingdom was deferred due to a Judicial Review (JR) and this has been now lodged for an expedited decision at Court.

You previously failed or refused to leave the United Kingdom when your leave was curtailed to expire on 14/02/2015. You have failed to be granted any further leave since this date. You then claimed asylum on 16/09/2015 and this claim for asylum was refused on 26/01/2016 and certified meaning you have no in country Right of Appeal against this decision.

In relation to the specific additional points raised in your request, you have requested you be granted TR as your JR is now being transferred to the High Court. I have been instructed that the main body of the JR has now been refused and that the only part that requires consideration is the challenge that you have submitted that your detention was illegal. The JR is still being considered under an expedited process and should conclude within a reasonable timescale.

You have also claimed that you require TR to gain further evidence to submit and to gain further legal advice due to your solicitor leaving the practice that had been representing you. You have full access to a telephone within the detention centre and access to computers for you to arrange this from within the detention centre. The representatives will have full access to the detention centre to assist you in your case. As far as you requiring more time to collect evidence, it is considered, given the time that has passed since your initial claim for Asylum was made, you have had ample opportunity whilst you were previously on TR to submit all the evidence to support your claim for asylum. You have submitted evidence to support your claim whilst in the detention centre on a few occasions and all this has been considered and refused.

You further claim you require to seek urgent medical attention however the detention centre has qualified medical staff that will be willing to provide you assistance or attention as you require and you should seek an appointment with them at the earliest opportunity for them to assess and assist you regarding any medical issues you may have."

53. On 12 July 2016, the Claimant made a further application for temporary admission.
54. On 15 July 2016, the Defendant again refused the Claimant temporary admission.
55. On 22 July 2016, the Claimant was released from detention on account of the fact it had become clear that there was no reliable timetable for the determination of the judicial review proceedings.
56. On 12 October 2016, the Claimant was refused permission to apply for judicial review on the papers by Mr Justice Lewis.
57. Following an oral renewal hearing, on 8 December 2016, permission was granted to proceed with a claim for judicial review claim limited to the detention ground only by Mr Charles Bourne QC sitting as a Deputy High Court Judge.
58. I will now turn to the three specific issues raised and set out the legal and policy framework relevant to each issue before discussing its application to the facts of this case, and setting out my conclusions.

Issue (1): Did the Defendant have a power to detain and was it exercised lawfully?

59. The Defendant relies on her power under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, to detain any person in relation to whom there are reasonable grounds for suspecting that they are a person in respect of whom removal directions may be given.
60. Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 states as follows:

"(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of [paragraph 8 to 10A or 12 to 14], that person may be detained under the authority of any immigration officer pending–

(a) a decision whether or not to give such directions;

(b) his removal in pursuance of such directions."

61. Mr Fisher, Counsel for the Defendant, confirmed orally at the hearing that the directions were to be given under paragraph 9 of Schedule 2 to the Immigration Act 1971, which states:

"(1) Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above are authorised by paragraph 8(1)."

62. Paragraph 8 of Schedule 2 to the Immigration Act 1971 addresses the situation where a person arriving in the United Kingdom is refused leave to enter and provides at paragraph 8(1) for the giving of directions to the captain, owners or agents of a ship or aircraft requiring them to remove that person from the United Kingdom in a specified ship or aircraft to certain a specified country or territory, including a country of which he is a national or citizen.
63. In my judgment, the Claimant was a person in relation to whom there were reasonable grounds for suspecting that she was a person in respect of whom removal directions may be given under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. At the time of her detention on 14 April 2016, the Claimant was an Overstayer in relation to whom there were reasonable grounds to suspect that directions might be given for her removal from the UK. She was served with an IS.91 Authority to Detain which identified that as the basis for her detention. Subsequent detention reviews identified the basis for her detention as paragraph 16(2) of Schedule 2 to the Immigration Act 1971. Accordingly, I conclude that the Defendant's power was exercised lawfully.

Issue (2): Did the Defendant comply with her published policy in taking the decision to detain the Claimant and in maintaining her detention?

64. It is necessary for decisions on detention to comply with published policy in order for the detention to be lawful: see R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.
65. Home Office guidance on immigration detention is contained in chapter 55 of the EIG. That chapter commences with the following:

"The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate:

(a) to effect removal;

(b) initially to establish a person's identity or basis of claim; or

where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.

To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy."

66. Paragraph 55.3 provides:

"55.3 Decision to detain (excluding criminal casework cases)

1. There is a presumption in favour of temporary admission or temporary release - there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.

2. All reasonable alternatives to detention must be considered before detention is authorised."

67. Paragraph 55.10 of the EIG stated, at the material time, as follows:

"55.10 Persons considered unsuitable for detention

Certain persons are normally considered suitable for detention only in 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:

Unaccompanied children and young persons under the age of 18 (see 55.9.3 above).

The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention.

Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this.

Those suffering from serious medical conditions which cannot be satisfactorily managed within detention.

Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.

Those where there is independent evidence that they have been tortured.

People with serious disabilities which cannot be satisfactorily managed within detention.

Persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons).

If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file." (emphasis in bold added)

68. The Supreme Court gave consideration to what would constitute "satisfactory management" of mental illness in (R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717 at [30-31])

"30. In formulating policy that, save very exceptionally, management of serious mental illness in an IRC, if not satisfactory, should precipitate release, the Home Secretary has adopted a word of extreme and appropriate elasticity. It catches a host of different factors to which the circumstances of the individual case may require her to have regard. In R (Das) v Secretary of State for the Home Department (Mind intervening) [2014] 1 WLR 3538, in a judgment with which Moses and Underhill LJJ agreed, Beatson LJ, at paras 45—47, 65—70, offered a valuable discussion of the phrase "satisfactory management". I respectfully disagree with him only in relation to an aside in para 71 of his judgment. Beatson LJ there expressed an inclination to accept the Home Secretary's contention that, if the management of the illness in an IRC was likely to prevent its deterioration, it would be satisfactory even if treatment was available in the community which was likely to secure its improvement. I would not exclude the relevance of treatment, available to the detainee only if released, which would be likely to effect a positive improvement in her (or his) condition. If it was likely that such treatment would actually be made available to the detainee (rather than be no more than on offer in principle to all members of the community in NHS publications), its availability should go into the melting-pot; and the burden would be upon the Home Secretary to inquire into its availability. If, contrary to the Partnership Agreement quoted in para 29 above, the standard of care (expressly aimed at improving health as well, of course, as preventing it from deteriorating) provided to a detainee in an IRC were for some reason not equal to that which would be made available to her if released, it would in my view be questionable, subject to the strength of other relevant factors, whether the management of her illness in the IRC was satisfactory. While satisfactory management does not mean optimal management, a narrow construction of the word "management" as meaning no more than "control" of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained in the IRC pursuant to the policy notwithstanding the unsatisfactory management of her illness there.

31. Above all the policy in paragraph 55.10 of the manual mandates a practical inquiry. As Beatson LJ stressed in the Das case, the phrase "satisfactory management" should be interpreted with regard to its context and purpose (para 45); should not be subjected to the fine analysis appropriate to a statute (para 47); nor invested with a spurious degree of precision: para 65. An important part of its context is that the management of the illness takes place in detention pending likely deportation. Treatment of a patient who finds herself in the doubly stressful circumstances both of detention and of likely deportation has its own considerable, extra challenges; treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory."

69. Any detention in an immigration removal centre is subject to the Detention Centre Rules 2001/238. Rule 35 states as follows:

"(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.

(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(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.

(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care." (emphasis in bold added)

70. The Detention Services Order 17/2012 sets out the procedures for recording and dealing with Rule 35 reports. Paragraphs 9 and 10 set out the requirements from medical practitioners and healthcare staff:

"9. Rule 35 reports should be prepared and submitted by medical practitioners only.

10. It is important that nurses and other healthcare professionals are aware that they should report to an IRC medical practitioner any detainee who claims to have been a victim of torture. An appointment with an IRC medical practitioner should be made for detainees who answer 'yes' to the torture question during their healthcare screening induction. Appointments should be made as quickly as possible (with interpretation, for example, Language Line, where there are concerns that a person cannot adequately understand or communicate in English). The detainee has to see the medical practitioner in order for an assessment to be made as to whether or not the practitioner has concerns that the detainee may have been the victim of torture. The healthcare team should follow up on detainees who do not arrive for their scheduled appointment." (emphasis in bold added)

71. 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 medical evidence in support.

22. Where there is medical evidence in support of an allegation, the medical practitioner must set out clearly all physical and mental indicators in support of his/her professional concerns. He/she should record any mental or physical health problems that are relevant to the torture allegation.

23. Where possible, the medical practitioner should say why he/she considers that the person's account is consistent with the medical evidence. This means that the medical practitioner should ask to see any scars and record what he/she sees, including on a body map and, where possible, assess whether it is in his/her view medically consistent with the attribution claimed by the detainee. The medical practitioner should consider whether the injury, health problem or other indicator may have other possible explanations which do not relate to torture. The medical practitioner must identify any medical evidence which may be contrary to the account given by the detained person.

24. To help decide whether there is cause for concern, it may also be helpful to ask detainees about:

• When the torture allegedly took place;

• How the injuries/mental health issues arose;

• How the torture is currently affecting them.

25. A Rule 35 report is a mechanism for a medical practitioner to refer on concerns, rather than an expert medico-legal report and so there is no need for medical practitioners to apply the terms or methodology set out in the Istanbul Protocol. Medical practitioners are not required to apply the Istanbul Protocol or apply probability levels or assess relative likelihoods of different causes but if they have a view, they should express it." (emphasis in bold added)

72. Guidance on whether a Rule 35 report recording allegations of torture will amount to independent evidence of torture is contained in a document entitled 'Detention Rule 35 Process'. It states:

"Because each case will be different, it is not possible to provide definitive guidance on when a Rule 35 report will constitute independent evidence of torture. However, it must have some corroborative potential (it must "tend to show") that a detainee has been tortured, but it need not definitively prove the alleged torture. The following pointers may assist:

• A report which simply repeats an allegation of torture will not be independent evidence of torture;

• A report which raises a concern of torture with little reasoning or support or which mentions nothing more than common injuries or scarring for which there are other obvious causes is unlikely to constitute independent evidence of torture;

• A report which details clear physical or mental evidence of injuries which would normally only arise as a result of torture (e.g., numerous scars with the appearance of cigarette burns to legs; marks with the appearance of whipping scars), and which records a credible account of torture, is likely to constitute independent evidence of torture."

73. The guidance continues:

"Very exceptional circumstances could arise where, for example, release would create an unacceptably high risk of absconding, of reoffending or of harm to the public. There will not be very exceptional circumstances in the case of a routine detention absent other reasons, e.g., a removal without a high absconding risk or harm issue — see Ch. 55 of the EIG. The full circumstances applicable to the detainee and their reasons for detention must be considered, in order to establish whether there are very exceptional circumstances that mean detention is appropriate notwithstanding the Rule 35 report.

In some cases where the Rule 35 report is accepted as independent evidence of torture, there may nevertheless be further information which renders the overall account of torture wholly incredible. Such information may form the basis of an assessment that there are very exceptional circumstances making detention appropriate.

For instance, it may be right to detain in very exceptional circumstances if, despite the existing independent evidence of torture, there is a court determination which was made with sight of a full medico-legal report and which dismisses the account of torture, or there is evidence such as visa match evidence which very clearly shows that at the time the detainee claims to have been tortured in one location, he was in fact enrolling biometrics and applying for a visa in another location ….."

74. The above provisions were considered by the Court of Appeal in R (BA (Eritrea)) v Secretary of State for the Home Department [2016] EWCA Civ 458; [2016] 4 WLR 101 (the "BA" case) where the Court addressed directly the question of when a Rule 35 report would amount to independent evidence of torture. Elias LJ held that the question is relatively "hard edged". He rejected an argument that a Rule 35 report in which a doctor expresses a concern, with the implication that the Claimant's argument might be true, satisfies the test of independent evidence of torture (at [30–31]). He held that a report would not amount to independent evidence of torture if it contained:

a) a mere recitation of an account of torture coupled with the fact that the doctor does not find it inherently incredible ([32]); or

b) the description of injuries or scarring without relating them in any way to the account of torture ([32]).

75. In relation to food and fluid refusal Detention Services Order 03/2013 Food and Fluid Refusal in Immigration Removal Centres: Guidance is also relevant. This states as follows:

"Part C

General guidelines

17. When a detainee is known to have refused food and/or fluid for over 24 hours they should be offered a routine medical appointment. If the detainee appears unwell, an urgent appointment should be offered on medical grounds. If the detainee prefers an appointment with a nurse this should be arranged. The purpose of the initial appointment, which is in most cases not an urgent appointment, is to ensure that the detainee:

Has no undiagnosed mental illness causing the refusal

Has no physical illness causing the refusal

Understands the consequences of their action

Is offered care from any appropriate source

Has base line weight recorded and is advised of any interference of the food and/or fluid refusals with other medical problems or medication.

18. Informed decision-making by the detainee is central to the consent process. The healthcare professional at this initial stage must therefore outline the risks and consequences of refusing food and/or fluids over time. Consideration should be given to obtaining a psychiatrist's assessment, particularly if there is any uncertainty over the individual's mental state.

…

Part D

Case Management

46. Some detainees choose to refuse food and/or fluids as a protest against their detention. The law presumes that an adult has the capacity to take their own healthcare decisions unless the opposite is proved. A decision to refuse food and/or fluids will not automatically entitle that individual to be released from detention. Genuine refusal of food and/or fluids can, however, in some cases lead to medical conditions that are so serious that they can no longer satisfactorily be managed in detention. In such a case, the detainee may become unsuitable for detention (although other factors may also be relevant to his decision). It is therefore important that sufficient information is available to enable a decision to be made as to continued detention.

…

48. The following actions, which are intended to facilitate the safe and satisfactory management within detention of individuals refusing food and/or fluid and any resulting medical conditions, should normally be considered and, if relevant and appropriate, implemented in all cases of food and/or fluid refusal at the 48 hour point for food only refusal and 24 hour point for fluid refusal, unless there are particular reasons in an individual case not to do so….

Information to detainee

49. As a first step, the HO Immigration Enforcement Manager should inform the detainee, by letter and in person, of the following interventions that are likely to take place in their case…..

Encouragement to resume eating and/or drinking

50. Whilst detainees must not be coerced into resuming eating and/or drinking, it is entirely appropriate for them to be actively encouraged to do so (provided this is not inconsistent with medical advice)….

Expedite case

51. All instances of food and/or fluid refusal that have reached the 48 hour (food only) or 24 hour (fluid) point must be escalated by Immigration Enforcement staff at the centre to senior managers in Detention Operations and in the business areas responsible for the cases of the individuals concerned for information and for case management review using the food and/or fluid refusal escalation log at Annex B……

Close observation and monitoring

52. An Assessment Care in Detention and Teamwork (ACDT) plan must be opened when an individual has been identified as refusing food for a period of 48 hours, or refusing fluid for a period of 24 hours, or has claimed to have done so. The plan must include a requirement for all staff coming into contact with, or observing the detainee, to note whether there is any evidence or indication of food and/or fluid being consumed (from whatever source); and to note any behaviour or activity by the detainee which might be relevant in assessing their general well-being.

…

Clarify medical assessment

55. Where the IRC doctor has given an opinion that a detainee is no longer fit to be removed and/or no longer fit to be detained as a consequence of their food and/or fluid refusal, the doctor should be asked by the HO Immigration Enforcement Manager for details, if they have not been provided or are unclear, of the basis on which this assessment has been made…

57. This is not about challenging the doctor's professional opinion on medical grounds. It is simply to ensure that the basis for that opinion is clear and is understood by HO Immigration Enforcement so that it can be given due weight in deciding how best to manage the detainee. Whilst it is important for doctors to express their professional view as to whether a detainee is unfit to be removed or detained as a consequence of prolonged food and/or fluid refusal, and such views must be considered very carefully, the Secretary of State has an independent decision to make in such cases, specifically, is the individual suffering from a serious medical condition (ie the consequences of prolonged food and/or fluid refusal) which cannot be managed satisfactorily in detention and, if so, are there nevertheless very exceptional reasons for maintaining detention (eg high risk of public harm if released)?....

76. Turning to the evidence in the present case, a review of the Claimant's medical records does indicate that she was suffering from anaemia and heavy menstrual bleeding, as well as that she suffered from a degree of mental illness, and that she claimed to have been tortured. For the purposes of this claim, the relevant parts of EIG 55.10 required her release (except in very exceptional circumstances) if she was:

a) suffering from a serious medical condition which could not be satisfactorily managed within detention;

b) suffering from serious mental illness which could not be satisfactorily managed within detention; and/or

c) there was independent evidence that she had been tortured.

Whether the Claimant should not have been detained as a person with a serious medical condition which could not be satisfactorily managed within detention

77. In relation to the Claimant's anaemia and menstrual bleeding, a review of the medical records confirms that, whilst not trivial, this did not amount to medical condition which could properly be described as "serious" and that it was satisfactorily managed in detention.
78. It is relevant that in the Claimant's asylum interview on 22 December 2015 when asked about whether she had any medical conditions, she answered "Not really medical but I have anaemia and treating it and heavy bleeding too but that is under control and I am taking my own tablets and all that."
79. The Claimant was taking medication in the form of ferrous fumarate and the medical records show that she was regularly issued with prescriptions for this medication during her time in detention, medication which the Claimant confirmed orally at the hearing she self-administered and did in fact generally take.
80. Whilst the Claimant submitted that she had more frequent and heavier bleeding whilst in detention and that this was not normal for her and, at times, led her to stay in bed rather than get up and move around, it remains the case that her condition, of which the medical practitioners were aware from the outset, appears to have been satisfactorily managed. Although the Claimant pointed to the odd blood test marker as being above or below the normal range within her medical records, she has produced no medical or other expert evidence to explain the significance of such readings or that it amounted to a serious medical condition. Further, there is no indication in her medical records whilst in detention that there was any particular abnormality in this regard or that her condition was not capable of being managed with the treatment prescribed for her, which the Claimant accepted was correct.

Whether the Claimant should not have been detained as a person with mental health problems

81. The Defendant accepts that the Claimant was, at times during her detention, anxious and distressed. As noted in the Claimant's detention review of 6 July 2016 and elsewhere, the Claimant showed signs of vulnerability, in particular in relation to her food refusals which commenced in late June 2016. She also complained of flashbacks and nightmares. The Defendant submits, that there is however no reliable medical evidence that the Claimant was suffering from a diagnosable mental illness, and whilst she clearly was feeling anxious and stressed, it is clear from the medical records that she was well supported by the medical staff in Yarls Wood who took care to monitor her condition and manage her anxiety and stress whilst in detention.
82. I have carefully reviewed the medical evidence in relation to the Claimant's mental illness and conclude that it was satisfactorily managed in detention, in compliance with EIG 55.10:

a) In her admission assessment on 14 April 2016, the Claimant was noted as having no thoughts of deliberate self-harm; no suicidal thoughts; she had no history of medication for mental health problems; she had not tried to harm herself in the past; and the medical practitioner noted that her behaviour and mental state was settled, engaging, and coherent.

b) On 30 April 2016, the Claimant gave an account of torture to a medical practitioner in the immigration removal centre.

c) On 12 May 2016, the Claimant was seen by a nurse complaining of insomnia, stress and anxiety and reporting experience of nightmares and panic attacks.

d) On 31 May 2016, the Claimant was seen by a nurse complaining of dizziness and reported feeling stressed and having flashbacks of torture. She was booked for a mental health assessment.

e) On 1 June 2016, the Claimant was reviewed by a mental health nurse who recorded that there were no concerns raised in her overview notes and that the Claimant was able to resist dangerous thoughts, was able to use decision making strategies, had not tried to harm herself, had good eye and body language, was well kempt, and denied any suicidal thoughts. The Claimant had asked the mental health team for help with talking therapy and she was referred to the well-being clinic.

f) On 4 June 2016, the Claimant was given a psychological wellbeing assessment by Kaleidoscope Group. At that assessment, the Claimant said that she was feeling depressed, sad and claustrophobic and experiencing panic attacks and flashbacks. She disclosed that she had been experiencing suicidal thoughts when she had been taken into isolation but that those thoughts had gone when she was released from isolation. This report was provided to the Defendant on 10 June 2016 as part of a request for temporary admission.

g) At a follow-up on 9 June 2016, the mental health nurse made a positive appraisal of the Claimant's mental health.

h) On 20 June 2016, the Claimant started to refuse food. As the SERCO records and medical records from 20 June 2016 to 26 July 2016 illustrate, the food refusal was treated seriously by the Defendant who monitored the Claimant's health, conducted ongoing daily checks on her welfare and remained satisfied that she was taking fluids, occasionally eating, and remained healthy, pleasant and communicative. No serious concerns about her mental health were raised, notwithstanding the food refusal.

i) The ad hoc detention review on 22 June 2016 recorded that the reviewing officer had consulted with the removal centre's mental health team leader who advised that Kaleidoscope was not qualified to conduct mental health assessments. The review noted that while there were some indictors of vulnerability, the Claimant was medically fit for detention and was being satisfactorily managed in detention. The review also noted the need for daily review of the food and fluid refusal.

j) The same conclusion was reached in the detention review of 6 July 2016.

83. I find that the Defendant did not act in breach of her policy set out in EIG 55.10 not to detain those with mental illness that cannot be satisfactorily managed in detention. It is not entirely clear that the Claimant had a mental illness. There exists no recorded diagnosis of a psychiatric illness by a suitably qualified person during the detention period, or subsequently in the post-detention period, although the Claimant showed me some diazepam medication at the hearing and stated she was in the process of being referred to a psychologist for anxiety. By its very nature, detention pending likely removal is a stressful experience (R (O) at [31]) and accordingly, it is likely to cause stress and anxiety. However, assuming the Claimant did have a mental illness during the detention period, in my judgment it was satisfactorily managed within the detention centre.
84. The Claimant made a specific complaint in her detailed grounds for supporting her claim to the effect that her detention was unlawful as a result of being detained in isolation for 3 days when others were not so selected. She complained that this was an abuse of power and was discriminatory. It would appear that the Claimant was detained in isolation in what is known as the Kingfisher unit from 22 to 24 May 2016 just prior to and with a view to her removal. Mr Fisher on behalf of the Defendant submitted that this unit is part of the removal centre with individual rooms and is used shortly prior to removal, noting that it is often the case that persons being removed are non-compliant with removal.
85. In terms of the impact of isolation on her, the Claimant's medical records for the period state as follows:

"22 May 2016 18:01 - Relocated to Kingfisher this afternoon on preparation for removal directions on 24/05/2016. Uneventful relocation. No healthcare concerns with move. Medication found in her property and is now being kept in healthcare.

22 May 2016 21:45 - Welfare check, resident in her room on the phone. Came to the unit office after her telephone conversation and told her we had come to administer her night time medication but she refused. Reassured and left her.

23 May 2016 19:45 – Welfare check in Kingfisher unit, has declined her ferrous sulphate today, nil other concerns raised.

26 May 2016 09:43 – Resident's own Ferrous Fumarate returned to her (84 x 210mg) – resident was in Kingfisher but RDs were cancelled."

86. Although the Claimant did complain of stress on 31 May 2016 and was booked for a mental health assessment at her request (such assessment taking place on 1 June 2016 followed by a review on 9 June 2016), there is no record in the mental health assessment or review of any complaint by the Claimant suffering symptoms as a result of being put in isolation. Her complaints were of flashbacks and nightmares. Further, the Mental Health Nurse who carried out the assessment and review did not have any overall mental health concerns about the Claimant, although she referred the Claimant, at her request, to the well-being clinic for one to one sessions which took place on 6, 9 and 13 June 2016.
87. The only evidence of the impact on the Claimant of being in isolation is in the Kaleidoscope Group report dated 4 June 2016 (provided to the Defendant on 10 June 2016 in support of a request for temporary admission) which stated that the Claimant "was experiencing suicidal thinking when felt secluded" but went on to state that "when released from seclusion thoughts went".
88. In regard to her isolation, this was for a short period pending her removal from the evening of 22 May to 24 May when removal directions were cancelled following receipt by the Defendant of the judicial review claim and there is no sufficient evidence to indicate that the Claimant was suffering from a mental illness during that period which was not being satisfactorily managed. On the contrary, apart from refusal of her medication for anaemia, no healthcare concerns were recorded.
89. Mr Fisher, following obtaining instructions, submitted that the Claimant was detained in the Kingfisher unit because she was considered to need extra support prior to removal, having expressed sentiments in her further submissions of 14 and 16 May of potentially wanting to end her life if she was removed. On the face of it, this does not appear unreasonable, albeit it is not clear that any extra support was in fact provided and no concerns regarding suicidal intent would appear to have been raised by the Claimant with staff whilst she was in the Kingfisher unit.
90. In the absence of any specific evidence about whether there were others in a similar position to the Claimant who were not transferred to the Kingfisher unit pending removal and the reasons for any differential treatment, I cannot be satisfied that there was any differential treatment between the Claimant and other persons, still less that any such treatment was unlawful in nature.
91. I also find based on the medical evidence that the Defendant did comply with Detention Services Order 03/2013 when managing the Claimant's food refusal. On 20 June 2016, an Assessment Care in Detention and Teamwork ("ACDT") plan was started. On 22 June 2016, a CAREMAP plan was prepared and she was referred for consultation with a medical practitioner. She was seen regularly by medical staff throughout the period from 20 June until her release on 22 July 2016 and details recorded. Her case was reviewed by the immigration removal centre on 26 June 2016, 5 July 2016, 12 July 2016 and 19 July 2016. An ongoing observation record was maintained, which demonstrated ongoing supervision and care. The Claimant was, throughout the period, taking fluids and was not in any significant distress at any stage. She also appears to have been eating at least some food reasonably regularly and retained a healthy body mass index, albeit she did lose about 3 kilograms in weight compared with her initial weight on admission to the IRC. There was nothing about her food refusal that rendered the Claimant inappropriate for detention and the Defendant complied with her applicable policy in relation to food refusal. In policy terms, as stated at paragraph 46 of the Detention Services Order 03/2013, food and fluid refusal does not put detainees in a category where they should be released except in very exceptional circumstances. The question is whether it leads to a medical condition so serious that the detainee can no longer satisfactorily be managed in detention. Here the Claimant maintained fluids and her food refusal did not lead to a medical condition so serious that it could no longer be satisfactorily managed in detention.

Whether Claimant should not have been detained as an alleged victim of torture

92. In relation to the Claimant's contention that she had been tortured, the Defendant submits that there was no independent evidence of torture in the Claimant's case and therefore EIG55.10 was not engaged. It is submitted that the Rule 35 report produced on 3 May 2016 was a mere recitation of an account of torture coupled with a note that the doctor did not find that account inherently incredible and that that kind of report was found not to amount to independent evidence of torture in the BA case. It is asserted that the Defendant's response to the Rule 35 report was entirely justified. In relation to the letters of Dr Nwajuaku of the Bey Clinic, the Defendant submits that she was entitled dismiss them as inherently unreliable and not amounting to independent evidence of torture. Their origin was unclear, they all bore the same date with no explanation, and there was no evidence to suggest that they reliably recorded a contemporaneous medical assessment. The Defendant submits, relying on Tanveer Ahmed v The Secretary of State for the Home Department [2002] UKIAT 00439 at [38] that in asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied upon.
93. In my judgment, the Defendant was entitled to conclude that the Rule 35 Report in relation to the Claimant constituted a mere recitation of an account of torture coupled with the fact that the doctor does not find it inherently incredible which was held not to constitute independent evidence of torture in the BA case at [32].
94. Although the Claimant in submissions criticised the Report as highly unprofessional, this is inconsistent with the medical records for 30 April 2016 which stated "Pxt read through R35 report and was happy with it". She also criticised the failure to respond to a question marked "What would you expect the impact to be if the individual were to be released? Detail different therapy that may be available in the community". However, in circumstances where the Report was simply reporting the allegation and indicating that it was plausible but without any means of verifying it, the fact that no specific answer was provided to this particular question does not appear surprising not least because the alleged torture was some 7 years previously and the answer to the next subsequent question indicated that the Claimant had "No mental health issues". There was no obligation on the medical practitioner to complete this box regarding the impact on the Claimant if released and alternative therapy in the community in circumstances where he could not say whether or not the Claimant was being truthful in her allegation.
95. Further, it was not unreasonable for the Defendant to conclude that the letters of Dr Nwajuaku all bearing the same date in 2016 did not amount to independent evidence of torture requiring the Claimant's release for the reasons given by the Defendant.
96. I therefore conclude that the Claimant's detention was not unlawful by reason of the policy presumption in favour of release of those for those where there is independent evidence that they have been tortured.
97. I note, for completeness, that attention was also drawn by Mr Fisher on behalf of the Defendant in oral submissions to various inconsistencies in the Claimant's account regarding the allegation of torture and rape at Lagos Airport in Nigeria in 2009. In her asylum interview on 22 December 2015, the claimant did not make claims of having been tortured in the past. She stated only that she "will be tortured" if returned to Nigeria. In her submissions to the Defendant dated 18 April 2016, she did not claim that she had been raped on her return to Nigeria in 2009 but rather that she was threatened, shoved around and harassed. On 20 April 2016, the Claimant's husband, Mr. Moses Tochukwu Okafor, submitted representations on the Claimant's behalf (in handwriting which appears to be the same as that of the Claimant) stating that in 2009 "she [the Claimant] was almost raped". In the Claimant's representations on 27 April 2016, she alleged for the first time she had been raped at gunpoint by numerous people in a dark room. However, the decisions which were made by the Defendant, both in relation to the Claimant's asylum claim and in refusing to treat her further representations as a fresh claim, did not reach any positive conclusion as to whether or not the Claimant had been raped and/or tortured in 2009. Rather, the Defendant concluded that, even if the Claimant's account was wholly credible, she would have sufficient protection if she was returned to Nigeria and could internally relocate within Nigeria. Irrespective of any inconsistencies between the accounts given to the Defendant, the key point is that the Defendant was clearly entitled to conclude that there was no independent evidence of torture such as to bring into play the presumption in favour of release from detention in EIG 55.10.
98. There is, however, one respect in which the Defendant failed to comply with her own guidance (although it was not the subject of any specific complaint by the Claimant in her submissions). This was in failing to refer the Claimant for a Rule 35 assessment "as quickly as possible" following the Claimant stating that she was a victim of torture in her initial health assessment on 14 April 2016, contrary to paragraph 10 of Detention Services Order 17/2012. The Rule 35 Report was not carried out until 16 days later on 30 April 2016 following the Claimant making further allegations of torture.
99. However, in circumstances where the Rule 35 report pursuant to an assessment on 30 April 2016 and dated 3 May 2016 did not in fact amount to independent evidence of torture, I have concluded that, although the failure was relevant to the decision to detain and constituted an unlawful deviation from her policy, the delay in referral has made no difference in this case. The same period of detention would inevitably have occurred even if there had been compliance with the guidance. Accordingly, the Claimant is entitled only to nominal damages in this regard and not to compensatory damages (cf. Lumba at [95]).

Issue (3): Did the Defendant's ongoing decision to detain the Claimant throughout her period of detention comply with the Hardial Singh principles?

The Legal Framework

100. The power to detain under immigration powers is subject to limitations known as the Hardial Singh principles, summarised by Dyson LJ (as he then was) in R (I) v Home Secretary [2002] EWCA Civ 888 [2003] INLR 196, as follows:

"46. … [T]he following four principles emerge;

(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 in effect removal.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of States to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971 . But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

101. The Hardial Singh principles and Dyson LJ's formulation in R(I)v Home Secretary were approved by the majority of the members of the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.
102. In Lumba, the Supreme Court considered the relevance of non-cooperation with return when assessing a "reasonable period of detention". Lord Dyson found the fact that a person is pursuing an unmeritorious legal challenge is not a trump card justifying continued detention of any length, but is a relevant factor in considering what is a reasonable period of detention in all the circumstances. Lord Dyson said:

"If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re-offending, which would compel an appellant's release if the process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one."

103. In R (Abdollahi) v Secretary of State for the Home Department [2012] EWHC 878 (Admin), Beatson J stated that that:

"the cases show that considerable periods of detention may be held to be reasonable in the light of the circumstances: see A (Somalia) [2007] EWCA Civ 804 (48 months); R (MH) [2010] EWCA Civ 1112 (38 months); and R (ABM) [2010] EWHC 2057 (Admin) (36 months)".

104. In Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, Lord Thomas CJ stated that the risk of absconding can be a factor of the highest or paramount importance that may justify a very long period of detention.
105. In this case, the total period of the Claimant's detention in 2016 was 100 days or just over 3 months.

Was there compliance with the Hardial Singh principles in the present case?

106. All of the Claimant's detention reviews acknowledged the policy presumption in favour of release but concluded that the presumption was outweighed by other factors.
107. The Defendant submits that detention was lawful throughout the period because:

a) The duration of the Claimant's detention was primarily due to her submission of repeated, hopeless representations and her pursuit of an unmeritorious judicial review claim;

b) In light of her clear obstruction of all efforts to remove her, the risk of absconding on release was significant; and

c) At all stages of her detention, the Defendant was entitled to conclude that the Claimant's removal would be possible within a reasonable period of time.

108. There is considerable force in the Defendant's submission that the duration of the Claimant's detention was due to her submission of repeated hopeless claims and that the Secretary of State was entitled to conclude that the further submissions had no realistic prospect of success. The Claimant was due to be removed on 24 May 2016 and removal directions were deferred by reason of the issue of instant claim. The Claimant was not granted permission to pursue a claim for judicial review arising out of refusal of her asylum claim on 26 January 2016 and its certification as clearly unfounded. Further, she was not granted permission to pursue the decision to refuse her further representations as constituting a fresh claim on 12 May 2016. Accordingly, all of those grounds have been found to be unarguable and bound to fail. (As stated above, the only ground on which the Claimant was given permission to proceed was the challenge to the lawfulness of her detention in 2016.)
109. It is also relevant, albeit by way of background, that during the Claimant's detention for the purpose of removal in 2015, she had issued a claim for judicial review on Article 8 grounds that was deemed 'totally without merit' and issued a second claim for judicial review on Article 8 grounds that was closed by the Court for non-compliance.
110. As Lord Dyson stated in Lumba, in the assessment of what was a reasonable period of detention in all the circumstances, very little weight can be attached to a period where a detainee is pursuing a hopeless appeal or claim.
111. On the Claimant's initial detention, there were no barriers to removal and the Claimant was removable on her current passport. Barriers to the Claimant's removal arose because the Claimant submitted further representations to support her previously rejected asylum claim on 18 April, 27 April, 4 May and 6 May 2016.
112. The Defendant expeditiously considered and rejected these further representations, under paragraph 353 of the Immigration Rules, by decision letter dated 12 May 2016. At that stage, there were, once again, no barriers to removal and a notice of removal window was served on the Claimant with directions for removal on 24 May 2016.
113. Further barriers to removal arose because the Claimant submitted further representations to support her previously rejected asylum claim the following day, 13 May 2016 and again on 21 May 2016. The Defendant again expeditiously considered and rejected those further representations by decision letter dated 21 May 2016.
114. In the meantime, on 20 May 2016, the Claimant issued the current claim for judicial review. The sealed claim was served on the Defendant on 24 May 2016, the date of planned removal.
115. The Court has held that the Defendant was unarguably entitled to certify her asylum claim as completely unfounded and to dismiss all her further submissions. Accordingly, the Claimant's own conduct in making such further unmeritorious representations has prolonged her detention.
116. The risk of the Claimant absconding on release was considered to be significant by the Defendant, despite her lack of criminal convictions and no previous failure to comply with reporting conditions. On first detaining the Claimant, her absconding risk was thought to be low on account of the fact that she had complied with reporting conditions during her period of temporary release. However, it is clear that this particular assessment was anomalous in the context of the GCID note on 21 March 2016 (paragraph 25 above) and the second and subsequent detention reviews, which recorded that her previous compliance with reporting conditions was in the context of an outstanding asylum appeal where she had an incentive to comply. Whilst the Claimant had complied with reporting conditions while on temporary admission, that had been in the context of what she believed was an outstanding asylum claim (since the Claimant was not served with the decision on her asylum claim until her detention on 14 April 2016). Once the asylum claim had been refused and certified and the Claimant was aware of the Defendant's intention to remove her, her previous compliance could not be taken as an indicator of likely future compliance. In my judgment, the Defendant was entitled to conclude in the second and subsequent detention reviews that her risk of absconding was high and to take this factor into account in decisions regarding the maintenance of detention.
117. Throughout the period of her detention, there was a realistic prospect of removal within a reasonable period of time. That was certainly the case in the period to 24 May 2016. However, in my judgment, it remained the case even after service of the judicial review claim.
118. The detention review of 8 June 2016 recorded the fact of ongoing judicial review proceedings and the presumption in favour of release, but noted that the Claimant's detention remained justified because:

a) The judicial review had been assessed as defensible;

b) There was an intention to expedite the judicial review timescale;

c) The Claimant had submitted multiple failed applications on various different grounds which suggested she had no intention of leaving the UK;

d) The Claimant was unlikely to comply with reporting restrictions;

e) The Claimant was not a vulnerable person for the purposes of EIG 55.10; and

f) The Claimant's removal could be effected within a reasonable timescale.

119. Consistently with the Defendant's belief that the judicial review proceedings could progress on an expedited timeframe, the Defendant filed her Acknowledgment of Service on 14 June 2016 and made an application to expedite the judicial review claim in the Upper Tribunal. Upper Tribunal Judge Macleman considered the matter on the papers urgently on 21 June 2016 and transferred the case to the Administrative Court. The Defendant received notice of that transfer on 29 June 2016.
120. The Defendant was aware that transfer to the Administrative Court could impact on the timeframe for the judicial review proceedings and the likelihood of expedition. In light of transfer, the Defendant recommended, in the detention review of 6 July 2016, that detention be maintained until an update was received on the timescale for the judicial review in the Administrative Court. The Defendant refused two applications for temporary admission on 7 July 2016 and 15 July 2016. However, on 22 July 2016, the Defendant took the decision to release the Claimant on the grounds that it was clear that there was no reliable timetable for the determination of the judicial review proceedings.
121. In my judgment, the Defendant's ongoing decision to detain the Claimant throughout out the period of detention was compliant with the Hardial Singh principles because:

a) the Claimant was detained solely for the purpose of her removal;

b) the period of detention was reasonable in all the circumstances, in particular taking account of the fact that the Claimant's own conduct in making unmeritorious representations prolonged the period;

c) it was not apparent before the transfer to the Administrative Court and it becoming apparent that there was no reliable date for determination of the judicial review claim that removal could not be effected within a reasonable period, at which point the Claimant was released;

d) the Defendant did act with reasonable diligence and expedition to seek to effect the Claimant's removal.

122. In summary, for the detailed reasons set out in this judgment, I have concluded that the Claimant's detention was lawful throughout her detention, except for the period of detention between 14 April and 30 April 2016 during which the Defendant failed to follow her policy guidance requiring an expeditious referral of the Claimant for a Rule 35 report following her allegation of torture during her initial healthcare assessment. However, given the content of the Rule 35 Report and the absence of independent evidence of torture, I find that the Claimant would inevitably have been detained for this period even if the policy had been complied with and the Rule 35 Report produced sooner. Accordingly the Claimant is entitled only to nominal (and not compensatory) damages in relation to her unlawful detention during this period.