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

The statutory power to detain pending removal is limited by the requirement that detention remain reasonably necessary and pursued with reasonable diligence. A judicial review challenge to removal does not automatically require release. The court must assess whether removal remains achievable within a reasonable period, considering the progress of the proceedings, the conditions of detention and the risk of absconding.

Healthcare failures do not automatically establish unlawful detention. The relevant question is whether the defendant failed to take reasonable steps to give practical effect to the policy of detaining persons with independent evidence of torture only in very exceptional circumstances. A report recording allegations and scars, without medical opinion linking them to torture, may not constitute independent evidence. Even where detention is unlawful, substantial damages require proof that lawful detention would not have occurred in any event.

The claimant, a Sri Lankan national, sought damages for alleged unlawful detention under the Immigration Act 1971 between 11 July and 8 October 2010.

He argued that the defendant failed to conduct the medical examination required on admission, failed to investigate his allegations of torture adequately, and should have released him after he issued judicial review proceedings challenging refusal to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules.

The issues were whether detention was unlawful because of the alleged medical and investigative failures, whether any such unlawfulness entitled him to more than nominal damages, and whether detention after 10 September 2010 exceeded the reasonable period permitted by the detention principles.

1. Claim dismissed. The claimant was probably examined by a general practitioner on 12 July 2010. The contemporaneous records, the anticipated GP review and the nature of the notes supported that conclusion. The court was entitled to infer that the GP carried out the physical and mental examination required by rule 34.
2. The defendant had not failed in her public law duty to take reasonable steps to give practical effect to the policy that persons with independent evidence of torture should normally be detained only in very exceptional circumstances. The claimant had expressly denied wishing to allege torture during initial screening, had not repeated the allegation during numerous healthcare consultations, and the earlier allegations had been rejected by the immigration judge. The information from the Medical Foundation did not disclose sufficient detail to amount to independent evidence.
3. The reasoning in EO was applied. The policy and rule 35 did not require a medical practitioner to possess specialist skills or to detect every sign of torture. What was desirable was not necessarily required. The claimant’s case was materially different from Das, where officials knew of an existing psychiatric report and failed to obtain and circulate it.
4. Even if there had been a failure in the rule 34 examination or investigation, the claimant could and would probably have remained lawfully detained. The rule 35 report recorded assertions and scars but expressed no medical opinion about their cause. His very high risk of absconding, immigration history, previous adverse credibility findings and the imminence of removal would have justified continued detention. He would therefore have been entitled to nominal damages only.
5. Issuing the first judicial review claim did not automatically make detention unlawful. Applying the Hardial Singh principles, the court considered the period from 10 September to 7 October 2010 reasonable. Expedition was being considered, the claim was stayed by agreement pending a medical appointment, removal remained realistically achievable, and the risk of absconding remained very high. Once the appointment was missed and no replacement date was available, the defendant acted promptly and released the claimant.