Khaleseh v The Home Office

A Rule 35 medical report may constitute independent evidence of torture even though it also records the detainee’s account and uses qualified language such as “might be consistent with”. The question is whether the report contains medical evidence beyond the detainee’s assertions; it is not a question of proving the torture or assessing the detainee’s credibility. A failure to follow a published detention policy is a public law error where it is material to the detention decision. Where independent evidence of torture exists, continued detention requires very exceptional circumstances under the applicable guidance. Detention maintained without applying that framework is unlawful and amounts to false imprisonment.

The claimant sought damages for false imprisonment arising from his detention at Dover Immigration Removal Centre between 27 November 2013 and 20 February 2014. His earlier claim concerning detention before 27 November 2013 had been abandoned.

The defendant maintained detention after receiving a Rule 35 report stating that the claimant’s injuries might be consistent with scars from beating with cables and recording medical concerns that he might have been tortured. The central issues were whether the report amounted to independent evidence of torture, whether the defendant had breached its detention policy, and whether continued detention was justified by very exceptional circumstances.

Claim succeeded on liability.

1. The defendant bore the burden of proving that the detention was lawful and also bore an evidential burden. The court had to assess the decision on the information available to the decision-maker at the time.
2. Under the defendant’s Enforcement Instructions and Guidance, there was a presumption in favour of temporary admission or release. Persons for whom there was independent evidence of torture were normally suitable for detention only in very exceptional circumstances.
3. The Rule 35 report was independent evidence of torture. Although much of it recited the claimant’s account, the doctor had ticked the concerns box and expressed the medical view that the injuries might be consistent with scars from beating with cables. That was evidence beyond the claimant’s assertions and did not amount merely to proof sought from the claimant himself.
4. The defendant erred by treating the claimant’s failure to mention torture during the screening interview as undermining the independent medical evidence. Credibility could be relevant to whether very exceptional circumstances justified detention, but it could not determine whether the medical report amounted to independent evidence of torture.
5. The defendant also erred in treating the absence of an account explaining what information or confession had been sought as preventing the case from falling within the definition of torture. The definition included punishment and discrimination and did not require an allegation that information or a confession had been sought.
6. The errors breached the defendant’s own policy and were directly relevant to the detention decision. The claimant should have been treated as having independent evidence of torture, after which the defendant should have considered whether very exceptional circumstances justified continued detention. The defendant conceded that none existed.

The detention was therefore unlawful from 27 November 2013. Judgment was entered for the claimant on liability.