ZA, R (on the application of) v The Secretary of State for the Home Department, Court of Appeal - Administrative Court, February 06, 2018, [2018] EWHC 183 (Admin)

Resolution Date:February 06, 2018
Issuing Organization:Administrative Court
Actores:ZA, R (on the application of) v The Secretary of State for the Home Department
 
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Case No: CO/1003/2016

Neutral Citation Number: [2018] EWHC 183 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/02/2018

Before :

MICHAEL KENT QC

(sitting as a Deputy Judge of the High Court)

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Between :

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Sonali Naik and Michelle Brewer (instructed by Duncan Lewis) for the Claimant

Tom Brown and Saara Idelbi (instructed by the Government Legal Department) for the Defendant

Hearing dates: 14 and 15 December 2017

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JudgmentMichael Kent QC :

Introduction

  1. The Claimant, a national of Pakistan now aged 36, claims judicial review of decisions to detain him under immigration powers and to maintain that detention between 19 January and 24 February 2016 when he was released on bail. The facts, to which more detailed reference will be made later, are as follows: the Claimant came to the United Kingdom on 29 March 2011 and was admitted on a Tier 4 student visa valid until 27 August 2012. He did not leave the United Kingdom after his visa expired and on 19 January 2016 he was encountered at Belfast docks having travelled on a ferry from Scotland with the apparent aim of continuing to the Republic of Ireland. He had a photocopy of his passport on which the date of expiry of his visa had been altered so as to make it appear it was still in force. He was however identified as an overstayer and was taken into immigration detention under paragraph 17(1) of and schedule 2 to the Immigration Act 1971 on the same day. He was detained initially in Larne House, which is a short term holding facility (STHF). On 23 January he was transferred to Brook House, an immigration removal centre at Gatwick airport. He claimed asylum (the date when he first made that claim is in dispute) and on 4 February he was moved to Harmondsworth Immigration Removal Centre. On 5 February an asylum screening interview was carried out.

  2. On arrival at each of these three detention centres the Claimant was seen by a staff nurse but not by a doctor though he did later see a doctor at his own request on 11 February at Harmondsworth. His full asylum interview had been initially fixed for 16 February but it was deferred at his own request to 24 February. On 22 February the Claimant's current solicitors Duncan Lewis wrote to the Defendant and, among other things, requested a further postponement of the full asylum interview. This request was declined but, these proceedings having been started on 23 February, Ouseley J made an interim without notice order that the Defendant be restrained from conducting the substantive asylum interview until at least 9 March. On the 24 February the Claimant was released from detention. His asylum interview took place on 5 July. He was given notice that the claim to asylum had been refused on 26 July 2016. He appealed to the First-tier Tribunal and his appeal was allowed in September 2017 following which he was given leave to remain for five years.

  3. There is a long procedural history to this Claim which was begun on 23 February 2016 but then stayed as it fell within a class of claims directed to be stayed by Cranston J on 5 February 2016 pending his determination of the substantive claims of four test cases which raised similar challenges to the lawfulness of the Secretary of State's ``Detention interim instruction for cases in detention who have claimed asylum and for entering cases who have claimed asylum in detention'' (DII) in the Detained Asylum Casework (DAC) process. Cranston J's judgment in this challenge was handed down on 7 June 2016: R (Hossain & Ors) v SSHD 2016 EWHC 1331 (Admin). In short he concluded that the DII system was not systemically or inherently unfair so as to prevent those seeking asylum from effectively advancing their claims. He also found that the Secretary of State had taken important steps required of her by the public sector equality duty in section 149 of the Equality Act 2010 on the application of her policy in relation to detained asylum seekers but those steps were not comprehensive in addressing the protected characteristics listed in section 149 (7) which includes mental illness and sexual orientation. In particular no Equality Impact Assessment in respect of the DAC after replacement of the detained fast track policy, which was suspended in July 2015, by a policy embodied in the DII had been prepared. Cranston J did not seek to identify what such an impact statement might contain and he made no finding that the failure to comply with that duty had had any generalised adverse impact on cases handled within the DAC. In particular he rejected an argument that those whose asylum claims were based upon their sexual orientation were unsuitable for detention. In the four test cases before him he dismissed the claims on their merits.

  4. Permission to appeal by the claimants in Hossain was refused by the Court of Appeal and the stay in this case was lifted. Revised grounds of judicial review in light of the decision Cranston J were then filed by the Claimant. These were put under five heads. Her Honour Judge Coe QC sitting as a judge the High Court granted permission on grounds 2, 3 and 4 only; however on an application for permission to appeal Jackson LJ additionally gave permission on ground 1 but refused permission to appeal in relation to ground 5. The Claim before me is now limited to the contention that the Claimant was unlawfully detained between 19 January and 24 February 2016 (some five weeks), in respect of which he seeks a declaration and damages for false imprisonment on four grounds which may be summarised as follows:

    1) a failure to follow the Defendant's own guidance and policy on the detention of a person applying for asylum on grounds of his sexual orientation;

    2) a failure to comply with Rule 34 of the Detention Centre Rules 2001 (2001 SI No 238) and/or policy, namely arranging for a physical and mental health examination by a medical practitioner within 24 hours of the Claimant's arrival at each of three detention centres;

    3) unlawful delay in arranging a requested medical assessment for the purpose of Rule 35 of the Detention Centre Rules; and

    4) maintaining detention contrary to the principles laid down in R v. Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles).

  5. These Grounds are, as Ms Naik for the Claimant says, interrelated and to some extent overlapping. It seems to me to be more logical to consider first Grounds 2 and 3 (which essentially go together) before moving to Grounds 1 and 4.

    Ground 2

  6. The Claimant's case is that there was a failure to comply with Rule 34 of the Detention Centre Rules and as a consequence his detention beyond the 24 hours in which a medical examination was required by the rule became unlawful.

  7. Rule 34 is headed ``Medical examination upon admission and thereafter'' and provides:

    ``(1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre.

    (2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.

    (3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.''

  8. Rule 33 (1) tells us what the reference to ``the medical practitioner'' means:

    ``Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise.''

  9. It is accepted by the Defendant that at Brook House and at Harmondsworth there was a failure to comply with Rule 34 in that there was no examination by a medical practitioner within 24 hours of arrival at each centre. It is not however conceded that there was any such failure at Larne House to which (as is common ground) the Detention Centre Rules did not apply. It is however the Claimant's case that the Defendant's own policy and instructions required an examination by a medical practitioner at that establishment within 24 hours of arrival.

  10. The Defendant does not however concede that the admitted failures at Brook House and Harmondsworth to comply with rule 34 or any failure (which is denied) amounting to public law error to comply with an internal instruction to the same effect at Larne House were material to the continued detention of the Claimant. There is therefore an issue as to whether such failures meant that, on expiry of the 24 hours without such an examination, the detention became unlawful. If it did then there is a further issue as to whether the Claimant would in fact have remained lawfully in detention if such an examination had taken place at each establishment enabling him to recover substantial as opposed to merely nominal damages for the unlawful detention.

  11. As to what was required at Larne House I have been referred to a Detention Services Order (DSO) 06/2013 issued by the Home Office for action by, amongst others, staff at an STHF (such as Larne House) which included the following in Annex B:

    ``Healthcare

    All detainees must receive an initial health care screening within two hours of their arrival at an IRC. An assessment of whether the detainee requires an immediate appointment with a doctor and where this is not required, a doctor's appointment to take place within 24 hours of the detainee's arrival at the centre must be offered.''

  12. Although that refers to an IRC which may not strictly include a STHF it appears that this was intended to apply to all establishments. Indeed the form filled in by the nurse at Larne House which is in evidence contained boxes to be completed...

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