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

A public authority may owe a duty to inquire proactively where this follows from the statutory framework, its policy, or procedural fairness. The scope of any inquiry must balance the individual interests at stake against the costs and benefits of a more proactive process, while respecting the decision-maker’s judgment about the questions required.

Contracting out public services does not necessarily remove the public authority’s responsibility. The authority remains liable for breaches of non-delegable duties and for wrongful acts specifically instigated, authorised or ratified by it. Breach of detention-centre rules does not itself make detention unlawful; the claimant must establish causation. On the facts, the failure to make a timely medical examination was authorised by the Secretary of State, but did not cause the continued detention.

The claimant, a Congolese asylum seeker, challenged her detention at Oakington Detention Centre under the detained fast-track asylum procedure. She alleged that the Secretary of State had unlawfully failed to ask proactively whether she had been tortured, had failed to follow the fast-track policy, and was responsible for medical-service failures by a subcontractor.

The claimant was not medically examined within 24 hours as required by the Detention Centre Rules, and no allegation-of-torture forms were completed after she disclosed rape. The central issues were whether the initial detention was unlawful, whether the Secretary of State was responsible for the subcontractor’s breaches, and whether those breaches caused the claimant’s continued detention.

1. Initial detention. The fast-track policy was not misapplied. The claimant’s nationality, political claim and disclosed health conditions did not place her within an excluded category. No independent evidence of torture existed when detention was authorised, and torture had not then been disclosed.
2. Duty to inquire. Whether a public authority must inquire proactively depends on: the statutory framework; the policy framework; and procedural fairness. Fairness may require proactive inquiry where important interests such as liberty, sustenance or social care are affected. The court must balance those interests against the costs and benefits of further inquiry, while deferring to the decision-maker as to the detail of the inquiry. Here neither statute nor policy imposed a duty to ask specifically about torture, and procedural fairness did not require such questioning at initial screening. The Secretary of State’s policy was lawful and the decision in HK (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 1357 was directly applicable.
3. Medical examination rules. Rule 34(1) required examination within 24 hours. The appropriate standard was what a competent medical practitioner would consider appropriate in the context, rather than an invariably thorough examination. The failure to examine the claimant within 24 hours breached the rule. The failure to complete allegation-of-torture forms also breached rule 35(3).
4. Contracted-out services. The second defendant acted as the Secretary of State’s agent and the third defendant as sub-agent. The Secretary of State was not vicariously liable as though the third defendant were an employee. Responsibility nevertheless extended to breaches of non-delegable duties and wrongful acts specifically instigated, authorised or ratified. The arrangements authorising only reactive medical services implicitly authorised the breach of rule 34(1). The failure to complete the torture forms was not shown to have been instigated, authorised or ratified.
5. Causation and outcome. Breach of the rules did not itself render detention unlawful. The claimant had to show that compliance would probably have resulted in release. Unlike the cases involving extensive or highly consistent scarring, the available evidence showed injuries only consistent, not highly consistent, with torture. It was therefore impossible to conclude, on the balance of possibilities, that an earlier examination or completed forms would probably have led to release. The claim was dismissed.

This was a first-instance judicial review. The claim had been stayed pending related proceedings in R (D and K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin) and the appeal in HK (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 1357.