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

A Rule 35 report may amount to independent evidence of torture where the medical practitioner expresses professional concern, even without identifying scars or other physical evidence. Where detention policy treats persons supported by such evidence as unsuitable for detention except in very exceptional circumstances, the Secretary of State must address that policy lawfully. Detention is also unlawful where removal is not realistically imminent, the risk of absconding is merely generic, and release is assessed by requiring the detainee to justify it. Administrative convenience cannot justify continued detention.

The claimant, an Eritrean national, entered the United Kingdom in October 2013 and was detained pending removal to Italy under Dublin 2. A medical practitioner made a Rule 35 report recording her account of imprisonment, assault and rape and indicating concern that she might have been tortured. The Secretary of State maintained detention and later refused temporary release.

The claimant withdrew challenges concerning fitness to fly and the risk of treatment in Italy. The remaining issues were whether detention was unlawful because the Rule 35 report should have led to release, whether detention became unlawful when removal directions were deferred and judicial review commenced, and whether the later detention decisions were inadequately reasoned.

1. Rule 35 report. The report amounted to independent evidence of torture. A medical practitioner need not expressly state that the account is believed, identify scars, or prepare an expert medical-legal report. The practitioner had recorded the account, indicated concern, and had not indicated that the account was doubted.
2. The report should have been treated as independent evidence of torture. There were no very exceptional circumstances justifying continued detention. The claimant presented only a generic absconding risk, and administrative convenience was insufficient. Ashraf v Secretary of State for the Home Department [2013] EWHC 4028 (Admin) was distinguished because the factual circumstances and credibility assessment were materially different.
3. After the judicial review claim was filed and removal directions were deferred, removal was not realistically imminent. The Secretary of State’s reviews failed properly to consider the likely removal timescale, the medical position, the litigation, and the risk of absconding.
4. The refusal of temporary release was additionally flawed because it treated the torture allegation as a matter for the Italian authorities and appeared to reverse the presumption in favour of liberty by requiring the claimant to justify release.
5. The court declared detention unlawful from 23 October 2013 to 17 January 2014 and held that the claimant was entitled to damages for false imprisonment. Failing agreement on damages, the case was to be transferred to the County Court for assessment.

First-instance judicial review in the Administrative Court. The judgment does not state any appeal or earlier decision on the merits.