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

The commencement of judicial review proceedings does not automatically require an immigration detainee’s release. It is a factor in assessing whether removal can still be effected within a reasonable period under the Hardial Singh principles. Continued detention may remain lawful while the Secretary of State reasonably assesses whether proceedings can be expedited and removal can follow shortly. Once it is accepted that expedition will not occur, detention must be reconsidered immediately and release on conditions arranged if removal is no longer reasonably imminent.

The torture-victim detention policy requires independent evidence beyond the detainee’s own account. A medical practitioner’s failure to tick the Rule 35(3) box may rationally be understood as indicating that the practitioner had no concerns that the detainee had been tortured.

The claimant, a Sudanese national, challenged his detention pending removal to Bulgaria. He alleged that detention breached the defendant’s policy concerning persons with independent evidence of torture and, from the commencement of judicial review proceedings, breached the Hardial Singh principles because removal was no longer imminent.

The removal and asylum issues were ultimately resolved by consent. The Administrative Court therefore determined only the lawfulness of detention. The central issues were whether the Rule 35 report triggered the torture-victim policy and whether continued detention remained reasonable after judicial review proceedings had begun.

1. The torture policy. The policy in paragraph 55.10 of the Enforcement Instructions and Guidance applies where there is independent evidence of torture, which requires more than the detainee’s assertion. The obligation to give practical effect to the policy includes taking reasonable steps to obtain relevant medical evidence.
2. The blank box on the Rule 35 form could rationally be interpreted as meaning that the doctor had no concerns that the claimant had been a victim of torture. Rule 35(3) asks whether the medical practitioner has concerns, rather than whether torture has objectively been proved. The doctor’s professional assessment could be based on clinical instinct, and the narrative did not show that the box had been omitted by mistake. The first ground therefore failed.
3. Hardial Singh. Detention must remain directed to removal, last no longer than is reasonable, cease when removal cannot be effected within a reasonable period, and be pursued with reasonable diligence and expedition. The commencement of judicial review proceedings is not an automatic bar to detention, but it must be considered because it may delay removal.
4. Initially, it was reasonable to await the possibility of expedition. The claim concerning Bulgaria presented a substantial hurdle, but there was also a critical UNHCR report. The claimant’s travel history, opposition to return, lack of documents and absence of United Kingdom ties created a real risk of absconding.
5. On 18 September 2014 the defendant accepted that the proceedings would proceed under normal timescales. That change should have been communicated immediately to the detention centre, with a contingent plan for release on conditions. Detention should have ended by 19 September. The claimant was therefore unlawfully detained from 19 to 29 September 2014, and a declaration was made. Damages and costs were left for agreement or further directions.

The proceedings began in the Upper Tribunal as a challenge to removal to Bulgaria. Permission was initially refused by Hayden J on 17 March 2015. Sullivan LJ granted permission to apply for judicial review on 3 July 2015 and returned the case to the Administrative Court. Following a consent order, only the unlawful-detention claim remained for determination.