Insufficient Regard to Detention Rule 35 Process

£25,000 for Claimant’s Unlawful Detention –
 IS, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1623 (Admin) (11 July 2016)
 1. In this claim for judicial review, the Claimant challenged the Defendant’s decisions on deportation, asylum and detention. Due to developments which have taken place during the course of these proceedings, the asylum and deportation issues are to be determined by way of statutory appeal and so only the Claimant’s detention now falls to be decided.

75. In my judgment, on this occasion, the Defendant did not have sufficient regard to Dr Ward’s findings, and erred in not applying the guidance in ‘Detention Rule 35 Process’ fairly and properly. In the second Rule 35 Report Dr Ward did provide a sufficiently cogent, detailed and reasoned description of systematic, repeated assaults, documenting the injuries which she found to be consistent with the Claimant’s account, and giving her professional opinion that they were unlikely to be accidental. Applying the guidance, as analysed by Elias LJ in BA, at [39]-[41], Dr Ward’s report did provide corroboration for the Claimant’s account and did constitute independent evidence of torture by a medical practitioner. It was irrational for the Defendant not to accept this. Although Dr Ward had missed the scars on her previous examination, there was no evidence to suggest that the scars were newly-inflicted, and it seems more likely that, as the Claimant had not pointed them out, they were not observed by Dr Ward who was only conducting a brief examination. The symptoms of PTSD were, at the very least, consistent with having been previously subjected to systematic violence, even if the stress of her current predicament was the probable cause of her current anxiety and panic attacks. Moreover, if her account was true, it would be plausible that the threat of deportation back to a country where her ex-partner might find her would cause her anxiety. 
76. By October, there was also support for Dr Ward’s assessment from the Helen Bamber Foundation recommending clinical investigation by an expert on the basis that there was prima facie evidence of torture, which does not seem to have been taken into account by the Defendant, even though acceptance for pre-assessment by the Helen Bamber Foundation is considered to be of sufficient significance to suspend a pending asylum decision (Asylum Policy Instruction).
77. I conclude therefore that the Defendant erred in not considering the Claimant’s case, as a person in respect of whom there was independent evidence of torture, under paragraph 55.10 EIG. Only “exceptional circumstances” would have justified continued detention, and no such exceptional circumstances existed in this case. The nature and degree of the Claimant’s previous offending, and the level of risk which she represented, would not, in my view, have justified continued detention pursuant to the Defendant’s policy.
78. Furthermore, by early October the Defendant had received both the second Rule 35 Report as well as the further information in support of the asylum claim from the Claimant’s solicitors. In the light of both these new factors, the decision to continue to detain the Claimant was both contrary to the Defendant’s policies in Chapter 55 EIG and unreasonable.
 79. In conclusion, I find that the Claimant was unlawfully detained from 12 October 2015 to 4 March 2016. Following receipt of this judgment in draft, the parties agreed that the Defendant would pay damages in the sum of £25,000 in respect of the Claimant’s unlawful detention.
 Published on Bailii, 11/07/2017