AA (Sudan), R (on the application of) v Secretary of State for the Home Department & Anor

Immigration detention must remain justified by a real prospect of removal within a reasonable period, and the Secretary of State must act with reasonable diligence and expedition. Failure to follow a detention policy can make continued detention unlawful where the policy is closely linked to the detention decision. Independent medical evidence indicating torture requires prompt consideration, particularly where policy provides that detention is appropriate only in very exceptional circumstances. A failure to consider such evidence may also make removal unlikely within a reasonable period. Where the public law failure caused the claimant to remain detained when detention would otherwise have been lawful, only nominal damages are recoverable. Where it caused prolonged detention with no effective progress towards removal, substantial damages and release may follow.

The claimant, a Sudanese national, had been detained under the Immigration Act 1971 following a deportation order. He challenged the lawfulness of his detention, sought damages, and challenged the refusal to revoke the deportation order and its certification as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002.

The claimant had outstanding Family Court proceedings, a history of absconding and criminal convictions, and medical evidence recording extensive scarring and symptoms said to be consistent with torture. Permission for judicial review had initially been refused but was granted by the Court of Appeal in January 2014. By the hearing, the defendant accepted that the certification decision should be quashed. The central issues were whether detention had become unlawful, the appropriate damages, and whether release should be ordered.

1. Detention and family proceedings. The existence of ongoing Family Court proceedings did not automatically require release. The defendant was entitled to consider the claimant’s convictions, history of absconding, ability to participate in proceedings while detained, and the expectation that the proceedings and provision of emergency travel documents might be resolved within a reasonable period. The proceedings had to be prevented from becoming circular.
2. Rule 35 report. The second Rule 35 report was not answered within the two-day period required by the defendant’s policy. That policy was closely linked to the decision to maintain detention because it was designed to bring the circumstances of vulnerable detainees to the attention of those responsible for reviewing detention. Following R (SK (Zimbabwe)) v Secretary of State for the Home Department [2011] UKSC 23, the failure made detention unlawful from 3 May 2013. However, the claimant would have remained lawfully detained if the report had been considered, so only nominal damages were recoverable for that period.
3. Independent medical evidence. The second report from Dr Millington, served on 5 November 2013, provided independent evidence supporting the claim that the claimant had been tortured. It required prompt consideration. The failure to consider it made detention unlawful from 8 November 2013. It also meant that the certification of the revocation application as clearly unfounded could not be sustained and that the claimant could pursue the matter before the Tribunals.
4. Reasonable period and release. Once the report had been served, the defendant could not effect deportation within a reasonable period without properly addressing the medical evidence and the resulting challenge. Applying the principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, detention from 8 November 2013 was unlawful and the claimant was entitled to real damages. He was ordered to be released.
5. The certification decision dated 1 July 2013 was quashed by agreement. An anonymity order was made, subject to disclosure of the judgment and identifying information to the claimant’s former partner for the limited reasons stated.

• Court of Appeal: Permission to apply for judicial review, refused at first instance, was granted by orders dated 17 and 22 January 2014. The defendant was directed to serve detailed grounds and respond to fresh medical evidence.
• High Court (Administrative Court): The claim was determined by Dingemans J under [2014] EWHC 2118 (Admin). The certification decision was quashed by agreement; detention was held unlawful for identified periods; damages and release were ordered.