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

The immigration detention policy concerning persons for whom there is independent evidence of torture has a precautionary scope. It applies where the torture occurred at any time in the past and does not require continuing physical or mental consequences. Independent evidence requires objective evidence with corroborative potential; medical evidence that unusual scarring is consistent with the detainee’s account may suffice. If the policy applies, detention is permissible only in very exceptional circumstances. The court reviews both questions by ordinary Wednesbury standards. An imminent removal date may provide such circumstances, but routine immigration factors do not. When circumstances undermine the justification for detention, the Secretary of State has a short reasonable period to reconsider. Detention becomes unlawful once that period expires without a rational basis for continuation.

The claimant, a Nigerian national, challenged his immigration detention from 25 September to 8 October 2015. A Rule 35 report recorded multiple scars and stated that his account of being attacked with knives and sticks was compatible with the examination findings. The Secretary of State maintained detention, relying on inconsistencies in the claimant’s account, the possibility that the scars had ordinary causes, his immigration history and his imminent removal.

The central questions were whether the report and surrounding material amounted to independent evidence that the claimant had been tortured, and, if so, whether very exceptional circumstances justified detention under the Secretary of State’s policy.

1. Policy construction. Paragraph 55.10 of the Enforcement Instructions and Guidance has a strong precautionary character. It is engaged by independent evidence that the detainee was tortured at any time in the past. It does not require recent torture or evidence of continuing consequences. The requirement that detention is normally suitable only in very exceptional circumstances adds no material qualification.
2. Independent evidence. The process instructions are rules of thumb. The question is whether, viewed in the particular case, the evidence has sufficient objective quality and corroborative potential. Applying Secretary of State for the Home Department v BA [2016] EWCA Civ 458, the unusual pattern of multiple small scars on the shoulders and chest, together with the medical opinion that the scars were consistent with the account, plainly amounted to independent evidence. The Secretary of State’s contrary conclusion was not reasonably open.
3. Very exceptional circumstances. Good health, exhausted appeal rights, overstaying, lack of community ties and an unprosecuted allegation of sexual assault did not rationally meet the high threshold. The imminent removal date, however, was sufficient on 28 September 2015, so detention up to and including that date was lawful.
4. Subsequent detention. Once removal directions ceased to be operative, the Secretary of State was entitled to a short period to reconsider detention. That reasonable period expired by 6 October 2015. There was then no rational basis for continued detention, and the claimant should have been released. Detention from 6 to 8 October 2015 was unlawful.