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

A Secretary of State’s policy concerning medico-legal reports from specialist torture foundations applied to further asylum submissions as well as initial claims. Where an applicant had been accepted for pre-assessment, the policy normally required suspension of a substantive decision pending the assessment. The decision-maker could not pre-empt the assessment by judging that it would not assist. A Rule 35 report was not independent evidence of torture where it added nothing to evidence already considered and rejected. Detention for removal became unlawful when the failure to follow the policy meant that removal could not lawfully proceed.

The claimant, a Sri Lankan national and asylum seeker, challenged the refusal of further asylum submissions, removal directions and her continued detention. Her earlier asylum claim and appeals had failed. After she made further submissions, she notified the Secretary of State that the Helen Bamber Foundation had accepted her for pre-assessment. The Secretary of State nevertheless rejected the submissions and decided that they did not amount to a fresh claim. The claimant also relied on a Rule 35 report recording alleged torture and mental-health symptoms.

The central issues were whether the Secretary of State’s policy applied to further submissions, whether the Rule 35 report constituted independent evidence of torture, and when continued detention for removal became unlawful.

1. The claim succeeded in relation to the refusal of the further submissions and detention from 17 May 2014. The challenge to the removal directions was academic because they had been cancelled, and no decision was made on it.
2. Judicial review applied traditional public-law principles, including irrationality, failure to take account of relevant considerations and Wednesbury unreasonableness. The court was not to remake the Secretary of State’s decision.
3. The policy on medico-legal reports from the Helen Bamber Foundation and the Medical Foundation applied to further submissions. Its language did not restrict it to initial asylum claims or appealable decisions. The policy’s objective was that relevant expert evidence should be properly considered and given appropriate weight. The reasoning in ZO (Somalia) [2010] UKSC 36 was helpful by analogy.
4. The word “normally” in the policy created an applicant-friendly qualification. It permitted a decision without waiting for the report where the claim was accepted but no international protection was required, subject to giving representatives an opportunity to make representations. It did not permit a caseworker to assess in advance that the foundation’s report would not assist. The decision letter did not mention the policy, indicating that it had not been considered. The refusal therefore failed to follow the Secretary of State’s own policy and was unlawful.
5. The Rule 35 report was independent and could constitute evidence without proving torture. The claimant’s credibility did not determine whether material was independent evidence. However, in context, the report added nothing to the evidence already considered by the tribunals: it described no new injury or cause. The Secretary of State was therefore entitled to conclude that it was not independent evidence of torture. The approach in EO & Others v SSHD [2013] EWHC 1236 was applied.
6. The mental-health evidence did not establish a serious mental illness that could not be satisfactorily managed in detention. The challenge based on the Rule 35 report consequently failed.
7. Because the further submissions should have remained outstanding, removal could not lawfully take place under paragraph 353A of the Immigration Rules. Detention was solely for removal and became unlawful on 17 May 2014, when the Secretary of State made the premature decision. The decision was quashed, detention from 17 to 21 May was declared unlawful, and damages were awarded to be assessed if not agreed.

This was a first-instance judicial review. The judgment records that the claimant’s earlier asylum appeal was dismissed by the First-tier Tribunal and a subsequent appeal was dismissed by the Upper Tribunal, but no appeal from this decision is stated.