D, R (on the application of) v Secretary of State for the Home Department & Ors

Detention under a fast-track asylum procedure is not unlawful merely because an asylum seeker alleges torture. The initial decision must be assessed on the individual facts, including whether the claim appears capable of being decided quickly and whether there is independent evidence or other information making detention inappropriate.

Detention Centre Rules 2001, rule 34 requires a physical and mental examination by a medical practitioner within 24 hours. That obligation cannot be displaced by an executive view that universal examination is unnecessary, contractual resource constraints, or the availability of advice agencies. Medical concerns about possible torture may constitute independent evidence, and must not be suppressed by a policy preventing medical staff from expressing such concerns.

Two asylum seekers, identified as D and K, challenged their transfer to and detention at Oakington Detention Centre under the fast-track asylum procedure. They alleged torture in their countries of origin and relied on the Detention Centre Rules 2001, published policy and operating standards.

The claims concerned the lawfulness of the initial fast-track decisions, the two-hour medical screening, the required 24-hour medical examination, the operation of Policy No. 25, the amenability of the contractor and medical subcontractor to judicial review, and compensation under article 5 of the Convention.

1. Initial transfer. The decisions to transfer D and K to Oakington were lawful. An allegation of torture did not, without more, make a claim unsuitable for fast-tracking. D had not alleged torture at initial screening and showed no relevant signs. K had alleged torture, but there was no clear medical presentation or other evidence then showing that his claim was unsuitable. The initial screening process did not require an intrusive investigation beyond what was practicable.
2. Medical screening. The two-hour screening requirement arose from the published Operating Standards, not the Detention Centre Rules. Its purpose was principally to identify immediate medical or psychological needs and self-harm or suicide risks, rather than to determine fast-track suitability or identify every torture case. No declaration was justified on the facts, although the Standards had not been shown to be fully complied with.
3. Rule 34. Rule 34 required a physical and mental examination by a medical practitioner within 24 hours. The cross-the-board failure to provide it was unlawful. The executive could not treat compliance with the statutory Rules as unnecessary or inappropriate, and the failure was not excused by contractual funding arrangements. Declaratory relief was granted against the Secretary of State and GSL, but not PCFM: a corporate medical subcontractor was not an officer for rule 2 and its obligations were defined by contract.
4. Torture reports and causation. Rule 35(3) required a report where the medical practitioner was concerned that a detainee might have been tortured. Such a concern was capable of constituting independent evidence. Policy No. 25, which prevented medical staff from expressing opinions about whether injuries were consistent with torture, could subvert rules 34 and 35. Had timely examinations occurred without that policy, both claimants would probably have been released earlier.
5. Outcome. D’s wrongful detention lasted two days and K’s four days, assessed on the balance of probabilities and allowing reasonable time for consideration and release arrangements. Compensation under article 5 was payable by the Secretary of State, with damages to be assessed. No additional compensation under articles 3 or 8 was allowed.