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

Immigration detention pending removal must remain directed to removal and be maintained only for a reasonable period with reasonable diligence. The presumption in favour of liberty is especially strong where there is independent evidence of torture, but detention may continue in very exceptional circumstances.

A Rule 35(3) report is independent evidence when it has corroborative potential. A bare record of an allegation, or a medical practitioner’s failure to find the account incredible, is insufficient. Reasoned medical evidence linking injuries or scarring to the account will generally suffice; proof of torture is unnecessary.

A prior tribunal rejection does not erase the evidential status of later material. It may justify detention at the exceptional-circumstances stage. A policy concerning medico-legal reports may extend to further submissions where its language does not limit it to initial claims.

BA, an Eritrean national, and ST, a Sri Lankan national, were detained pending removal. Each relied on a Rule 35 report recording concerns that she may have been tortured. BA’s report repeated her account without identifying scars or other medical support. ST’s report recorded unusual scars, linked them to her account, and described distress and post-traumatic symptoms, although her asylum claim and supporting medical evidence had previously been rejected by the First-tier Tribunal.

In BA’s judicial review, the Administrative Court held that the report was independent evidence of torture and that detention was unlawful from 23 October 2013, alternatively from 22 November. In ST’s case, the judge rejected the Rule 35 ground but held that the policy on medico-legal reports from the Helen Bamber Foundation applied to further submissions and that detention became unlawful on 17 May 2014. The appeals concerned the meaning of independent evidence, the effect of prior credibility findings, the scope of the Foundation policy, and the period of lawful detention.

1. Disposition. The Secretary of State’s appeal in BA was allowed in part. The Rule 35 report was not independent evidence of torture, but the alternative finding that detention was unlawful from 22 November 2013 was upheld. ST’s appeal was also allowed in part: her Rule 35 report was independent evidence of torture, while the finding that detention became unlawful on 17 May 2014 under the Foundation policy was upheld.
2. Detention and Rule 35. The Hardial Singh principles require detention to be for the purpose of removal, for no longer than is reasonable, and to cease when removal cannot be achieved within a reasonable period. The Secretary of State must act with reasonable diligence. The policy presumption against detention is particularly strong where independent evidence of torture exists, but it may be displaced by very exceptional circumstances involving a sufficiently powerful public interest.
3. A Rule 35(3) report must have corroborative potential. A report merely repeating an allegation, or recording that the doctor does not regard it as incredible, is insufficient. Reasoned medical evidence that injuries or scarring are consistent with the account will generally qualify. The report need not prove torture, and the underlying claim need only be capable of belief. Previous rejection of the same evidence does not remove its status as independent evidence, although it may be relevant to exceptional circumstances justifying continued detention.
4. Application to BA and ST. BA’s report simply recited her account and noted the absence of scars. The Administrative Court therefore erred in treating it as independent evidence. Nevertheless, the Secretary of State could not realistically have effected removal within a reasonable period after 22 November, given the judicial review, the pending Supreme Court issue and BA’s unfitness to fly. ST’s report identified unusual scars, linked them to her account and recorded significant distress and post-traumatic symptoms. It plainly constituted independent evidence. Whether previous adverse credibility findings would have justified detention was left for the damages hearing.
5. Policy and review. The Foundation policy applied to further submissions because it contained no limitation to initial asylum decisions and its purpose would otherwise be frustrated. Once pre-assessment was accepted, the Secretary of State could reasonably take a few days to consider the policy, exercise discretion and arrange release. The court’s role remained traditional public-law review rather than a fresh merits assessment, subject to the appellate restraint described in Abdi. Breach of a material public-law requirement rendered detention unlawful, with damages issues governed by Lumba.

• Administrative Court. In BA’s case, the court declared detention unlawful from 23 October 2013 to 17 January 2014, alternatively from 22 November. In ST’s case, it rejected the Rule 35 ground but held that the Foundation policy applied to further submissions and that detention was unlawful from 17 May to 21 May 2014.
• Court of Appeal (Civil Division). By [2016] EWCA Civ 458, the court allowed both appeals in part, upheld the alternative BA finding and the 17 May ST finding, and remitted or preserved damages issues for determination.