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

A breach of immigration detention policy renders detention unlawful where it bears upon, is relevant to, and is capable of affecting the decision to detain. Failure to comply with the Detention Centre Rules 2001 does not automatically have that effect, but may do so where the relevant requirement is incorporated into the Secretary of State’s policy and satisfies that test.

Independent evidence of torture is evidence beyond the detainee’s account which provides objective support for it. Credibility affects whether very exceptional circumstances justify continued detention, not whether evidence is independent. Where unlawful detention is established, the Secretary of State bears the burden of showing that the claimant would nevertheless have been detained, on the balance of probabilities, limiting damages to nominal damages.

Five immigration detainees brought linked judicial review claims alleging that the Secretary of State had failed to comply with the Detention Centre Rules 2001 and the published policy concerning victims of torture. They challenged failures to conduct Rule 34 examinations, process Rule 35 reports, consider later medical evidence, and apply the policy’s presumption against detention where there is independent evidence of torture. One claim settled.

The court also considered the meaning of torture, the relevance of credibility, the burden and standard of proof concerning detention that would have occurred in any event, and an Article 3 claim. The central questions concerned when procedural or policy failures made detention unlawful and what damages followed.

1. Materiality of policy breaches. Applying R (Lumba) v Secretary of State for the Home Department [2012] AC 245 and R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299, a breach must bear upon and be relevant to the decision to detain, and be capable of affecting the result. A failure to comply with the 2001 Rules does not itself make detention unlawful. It may do so where the requirement is reflected in the detention policy and has the necessary connection with continued detention.
2. Rules 34 and 35. Failure, without good reason, to arrange the Rule 34 medical examination within 24 hours made subsequent detention unlawful because the examination was a stepping stone to the Rule 35 process. The Rules and policy did not require a Rule 35 report to contain a specialist medico-legal opinion, to be prepared only by a specialist, or to be supplemented by an external report. A report drafted by a nurse and considered and approved by a medical practitioner could satisfy Rule 35. Negligent failure by a practitioner to identify signs of torture did not itself establish a policy breach.
3. Independent evidence and credibility. Independent evidence of torture means evidence beyond the detainee’s assertion which objectively supports the account. It need not be diagnostic. Credibility does not determine whether evidence is independent, although it may inform whether very exceptional circumstances justify continued detention. Mere doubts are insufficient; a firm conclusion that the torture claim is untrue may be relevant.
4. Meaning of torture. In the policy as it operated during the relevant period, torture included intentional infliction of severe physical or mental pain or suffering for the stated purposes, without requiring that the perpetrator be a public official or act with official acquiescence.
5. Damages and individual outcomes. Once unlawful detention was established, the Secretary of State had to prove on the balance of probabilities that the claimant would have been detained anyway. EO and CE were entitled to compensatory damages. OE was entitled to compensatory damages only for the period from 9 April 2009 to 23 March 2010; other periods attracted nominal damages only. RAN’s unlawful periods attracted nominal damages. The Article 3 claim in OE’s case failed. Counsel were directed to draw up an order.