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

Independent evidence of torture under an immigration detention policy includes an independent expert’s findings, opinion and honest belief following examination. It does not lose that character merely because it rests partly on the detainee’s account. Evidence need not amount to proof.

Where such evidence makes detention permissible only in very exceptional circumstances, earlier adverse credibility findings and unsuccessful proceedings cannot displace the policy without proper consideration of materially new evidence. A breach bearing directly on detention may vitiate its authority and establish false imprisonment. The Secretary of State bears the burden of proving lawfulness, while causation affects damages rather than liability.

The appellant sought judicial review and damages for detention under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. She alleged that her detention became unlawful after the Secretary of State received reports from an experienced assessor at the Helen Bamber Foundation. The reports recorded scarring consistent with deliberately inflicted injury and assessed her as a traumatised survivor of torture and rape.

Burnett J dismissed the claim in [2010] EWHC 684 (Admin). He held that the reports were not independent evidence that the appellant had been tortured because their conclusion depended upon accepting her account. He also found very exceptional circumstances justifying continued detention.

The central issues on appeal were whether the reports constituted independent evidence of torture under the Secretary of State’s detention policy and, if so, whether very exceptional circumstances nevertheless justified detention.

1. Appeal allowed unanimously. The Secretary of State breached her detention policy and was liable in false imprisonment. Liability commenced on 24 October 2008, allowing two weeks after receipt of the new material for the Secretary of State to consider her position. Any unresolved question of damages could be restored before a master of the Queen’s Bench Division.

2. The Helen Bamber Foundation reports constituted independent evidence that the appellant had been tortured. The assessor was an independent expert expressing her own findings, opinion and honest belief after examination. Her assessment of the appellant’s scarring and mental condition was not merely a repetition of the appellant’s assertions. An expert opinion does not cease to be independent because it is partly informed by the subject’s account.

3. The assessor’s use of the internationally recognised Istanbul Protocol strengthened that conclusion. The Protocol required assessment of the consistency between lesions and the attributed trauma. The reports assessed one scar as highly consistent with the account and described another in terms tantamount to the Protocol’s highest category. A requirement for evidence is distinct from a requirement for conclusive proof. Weight and ultimate proof remain matters for assessment.

4. The circumstances were not very exceptional so as to justify continued detention notwithstanding that evidence. Earlier findings that the appellant lacked credibility, previous unsuccessful litigation and an asserted risk of absconding reflected the position before the new reports. The Secretary of State had to consider the materially changed evidential position on its own merits. The appellant’s reporting history also did not support the characterisation of her as an absconder.

5. The statutory power to detain under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 was subject to the established limitations on immigration detention. The Secretary of State was obliged to follow her published policy absent good reason. A breach bearing directly on detention could vitiate its authority and sound in damages for false imprisonment. Causation concerned damages rather than liability.

6. The lawfulness of detention and compliance with the policy were matters for the court, rather than questions governed by Wednesbury review. At the liability stage, the Secretary of State bore the burden of proving that the detention was lawful.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 521, the court unanimously allowed the appeal, held the Secretary of State liable in false imprisonment from 24 October 2008 and left damages to agreement or determination by a master of the Queen’s Bench Division.
• High Court, Queen’s Bench Division: Burnett J dismissed the unlawful detention claim in [2010] EWHC 684 (Admin), holding that the reports were not independent evidence of torture and that very exceptional circumstances in any event justified continued detention.