PB, R (on the application of) v Secretary of State for the Home Department

Breaches of the Detention Centre Rules 2001 do not automatically invalidate detention or subsequent asylum proceedings. The claimant must establish causation on the balance of probabilities. Where a proper medical examination and torture report would probably have led to release, detention becomes unlawful after the period reasonably required to follow the prescribed procedure.

A detention-related policy must be clear, authoritative and accessible. A public statement of policy may bind the Secretary of State where no convincing evidence establishes a different policy. A fresh-claim decision under paragraph 353 of the Immigration Rules must be rationally reasoned and undertaken with anxious scrutiny. Unlawful detention does not, without more, render the original asylum decision or statutory appeal proceedings a nullity.

The claimant, a Cameroonian national who claimed to have been tortured, was detained at Yarl’s Wood and dealt with under the Fast Track Procedure. She was not examined by a medical practitioner within 24 hours and no report concerning her torture allegation was made by a medical practitioner under the Detention Centre Rules 2001.

The Secretary of State rejected her asylum claim, and the AIT dismissed her appeal. Further representations, including a medical report from Dr Cohen, were later rejected as not amounting to a fresh claim. The judicial review concerned breaches of the detention rules, failure to apply the policy concerning referral to the Medical Foundation for the Care of Victims of Torture, the lawfulness of detention, the fresh-claim decision, and whether the original asylum decision and appeal were invalid.

1. Detention and medical safeguards. The Secretary of State admitted breaches of rules 34(1) and 35(3) of the Detention Centre Rules 2001. Following R (on the application of D) v Secretary of State for the Home Department and R (on the application of K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin), breach of rule 34 does not itself establish unlawful detention. The claimant must show, on the balance of probabilities, that a compliant examination and any resulting rule 35(3) report would have led to earlier release.
2. The claimant had promptly alleged torture and had multiple visible scars which a competent general practitioner would probably have identified as consistent with her account. It was more probable than not that a rule 35(3) report would have been made and that it would have constituted independent evidence capable of leading to release. No exceptional circumstances justified continued detention. Detention was therefore unlawful after the short period required to complete the proper procedure, calculated as ending on 16 December 2006. Compensation was payable, with assessment reserved.
3. Published policy. The Ministerial statement of 8 January 2007 was treated as the applicable policy for detainees alleging torture. The Secretary of State had failed to apply it without reasonable justification. Alternatively, any different policy was not sufficiently clear, unequivocal, authoritative or accessible to those affected. Applying Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, an inaccessible detention-related policy could not be relied upon.
4. Fresh claim. The decision of 18 May 2007 was legally flawed. Under paragraph 353 of the Immigration Rules, the questions were whether an adjudicator applying anxious scrutiny might realistically conclude that the claimant faced a real risk on return, and whether the Secretary of State had herself applied anxious scrutiny. The decision inadequately addressed Dr Cohen’s findings and did not rationally explain why further exploration of alternative causes was required. It was set aside. The approach in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 was applied.
5. Original asylum decision and appeal. Unlawful detention did not necessarily invalidate the asylum refusal or the AIT proceedings. The AIT had statutory jurisdiction, and established appeal routes could not properly be circumvented. No sufficiently conspicuous unfairness was shown. The claimant was entitled to a fresh-claim reconsideration, but not to quashing of the original decision or appeal, nor to wholesale exclusion of the earlier material. The claimant succeeded on the first four issues; no relief was granted on the fifth.

The judgment records that the AIT dismissed the claimant’s asylum appeal on 29 December 2006. The AIT refused reconsideration on 5 January 2007, and Collins J dismissed the claimant’s application to the High Court for reconsideration on 25 January 2007. The present court granted judicial review relief on four issues but declined to invalidate the original asylum decision or the AIT proceedings.