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

A published detention policy must be interpreted according to the reasonable person’s understanding, informed by its presumed purpose. Policy provisions identifying torture, mental illness and serious medical conditions as factors against detention do not create an automatic entitlement to release. Detention may continue in very exceptional circumstances where the policy permits it.

Independent evidence of scars is not necessarily independent evidence of torture where the conclusion depends on accepting the detainee’s account of their cause. The lodging of judicial review proceedings does not automatically end the imminence of removal or require release. Continued detention may remain lawful where proceedings are expected to be resolved quickly and there are grounds supporting detention.

The claimant, an Angolan national detained pending removal, sought judicial review of the Secretary of State’s decision to continue her detention between 10 October and 13 November 2008. She relied on published detention guidance, a report concerning her mental health and scarring, and the lodging of judicial review proceedings.

The central issues were whether the material supplied on 9 October established mental illness or independent evidence of torture for the purposes of the guidance, and whether the pending judicial review meant that removal was no longer imminent. The claimant also alleged non-compliance with Detention Centre Rules 2001.

1. Policy interpretation. The relevant starting point was whether the Secretary of State had in fact acted contrary to the published policy. The policy was to be given the reasonable person’s understanding, informed by its presumed purpose, applying Raissi v Secretary of State for the Home Department [2009] QB 564.
2. Mental illness and torture. Paragraph 55.5 treated a history of torture and physical or mental ill health as factors against detention. Paragraph 55.16 identified the mentally ill and persons supported by independent evidence of torture as normally suitable for detention only in very exceptional circumstances. These provisions were not absolute. The report relied on did not establish mental illness: its author was not qualified to diagnose psychiatric illness and recommended psychiatric assessment. The scarring evidence independently established the existence of scars and that some were consistent with deliberately inflicted injury, but it did not independently establish torture because that conclusion depended on accepting the claimant’s account of how the injuries were caused.
3. Application to continued detention. The Secretary of State was entitled to assess the new representations in the context of the claimant’s earlier unsuccessful claims, strong adverse credibility findings, and the timing of the representations shortly before removal. Even if the evidence had brought the claimant within paragraph 55.16, the circumstances provided ample grounds for maintaining detention on a very exceptional basis while the judicial review issue was considered.
4. Pending judicial review. The policy did not provide for automatic release merely because legal proceedings had been lodged. Removal could still legitimately be regarded as imminent where proceedings were likely to be resolved reasonably quickly. The guidance expressly contemplated expedition of judicial review proceedings while detention continued. The continued detention therefore complied with the policy.
5. Detention Centre Rules. Any failure to comply with rule 35 of the Detention Centre Rules 2001 would not itself render the detention unlawful, following R ((SK) Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 1204.
6. The claim for unlawful detention was dismissed. The detention between 10 October and 13 November 2008 was lawful, and the question of damages did not arise.

First-instance judicial review proceedings in the Administrative Court. No appeal is stated in the judgment.