HK (Turkey) v Secretary of State for the Home Department

An immigration officer deciding whether an asylum claim is suitable for fast-track detention must ask whether, on the information reasonably available at screening, it appears capable of a prompt and proper decision. The scope of any duty to make further inquiries depends on the statutory and policy context. A bare allegation of torture does not itself make a claim unsuitable or require a pre-detention medical examination where there is no indication that the issue cannot be resolved quickly. The medical-examination provisions in Immigration Act 1971 Schedule 2 concerning entrants at ports do not create such a duty for a clandestine entrant.

The appellant, an Alevi Kurd from Turkey, claimed asylum after entering the United Kingdom clandestinely. At screening he alleged torture, a swollen leg and nightmares. He was detained at Oakington under the fast-track asylum process. A doctor later recorded injuries consistent with torture, and the appellant was released from the fast-track process.

Davis J held that procedural failures at Oakington entitled the appellant to compensation for four days’ loss of liberty, but held that the initial decision to detain him was lawful. The appellant appealed that latter conclusion. The central issue was whether the respondent was required, before detention, to arrange a medical examination or otherwise make further inquiries because of the appellant’s torture allegations.

1. Appeal dismissed unanimously. Latham LJ, with whom Jacob LJ and Mann J agreed, held that the initial decision to detain the appellant under the fast-track procedure was lawful. The separate award of compensation for four days’ loss of liberty, arising from later procedural failures, was not disturbed.

2. The statutory detention power in paragraph 16 of Schedule 2 to the Immigration Act 1971 had to be exercised consistently with the published policy. The relevant screening question was limited: whether, on its face, the claim could properly be determined quickly under the fast-track procedure. The policy was lawful: Saadi v Secretary of State for the Home Department [2002] 1 WLR 3131.

3. The appellant’s allegation of torture did not, without more, make his case unsuitable. Although independent evidence of torture would normally count against detention, the allegation was not then supported by independent evidence. There was nothing indicating that the existence or effect of such evidence could not be resolved promptly. The officials could therefore conclude that the claim remained suitable for fast tracking.

4. The inquiry required by Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 is context-dependent. Cases requiring proactive inquiries before a local authority decides support did not govern this screening decision. On these facts, reasonable administration did not require a medical examination before detention.

5. The Schedule 2 medical-examination provisions did not assist the appellant. They concern persons entering through ports and serve a public-health purpose. The appellant entered clandestinely, so those provisions imposed no obligation to obtain medical evidence of torture before deciding fast-track suitability. The European Court’s account of detention pending an immigration decision reinforced that the issue was whether the detention genuinely formed part of the process and was not arbitrary.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal: [2007] EWCA Civ 1357.
• High Court — Davis J held the initial detention lawful, but awarded compensation for four days’ loss of liberty caused by subsequent procedural failures at Oakington. No citation was stated in the judgment.