Anugha, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)

Immigration detention is lawful only where supported by statutory power, compliant with published policy and consistent with the Hardial Singh principles. A detainee alleging torture must be referred for a Rule 35 assessment as quickly as possible. Failure to follow that policy may make detention unlawful, but compensatory damages require proof that the breach caused additional detention. A Rule 35 report is not independent evidence of torture merely because it records a plausible account which the doctor cannot verify. Detention may continue where removal remains realistically achievable within a reasonable period, including while an unmeritorious legal challenge is pursued, although the detainee’s conduct is only one factor. Release is required once it becomes apparent that removal cannot be effected within a reasonable period.

The claimant, a Nigerian national, sought judicial review of her detention in an immigration removal centre from 14 April to 22 July 2016. The claim was limited to detention. She argued that the Secretary of State lacked lawful power, failed to comply with published detention policy, and breached the Hardial Singh principles.

The detention followed refusal of her asylum claim and further representations. During detention she alleged torture, submitted a Rule 35 report was delayed, raised mental-health concerns and refused food for a period. Removal directions were deferred after judicial review proceedings were issued. She was released when it became clear that there was no reliable timetable for determining those proceedings.

1. Statutory power. The Secretary of State had power under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 to detain the claimant because there were reasonable grounds for suspecting that removal directions might be given. The power was lawfully exercised.

2. Published policy. Detention decisions had to comply with the published policy in chapter 55 of the Enforcement and Instructions Guidance. The policy created a presumption in favour of temporary admission or release and required strong grounds for believing that conditions would not be observed.

3. The Secretary of State complied with the policy concerning the claimant’s medical conditions, mental health, food refusal and alleged torture. Her anaemia and menstrual bleeding were satisfactorily managed in detention. Even assuming a mental illness, it was satisfactorily managed. Food refusal did not produce a medical condition which could no longer be satisfactorily managed in detention.

4. The Rule 35 report recorded a plausible allegation but contained no independent medical evidence verifying torture. Applying R (BA (Eritrea)) v Secretary of State for the Home Department [2016] EWCA Civ 458, a mere account of torture coupled with the doctor’s inability to find it inherently incredible was insufficient. The later medical letters were also reasonably rejected as unreliable.

5. The Secretary of State nevertheless breached paragraph 10 of Detention Services Order 17/2012 by failing to arrange the Rule 35 assessment as quickly as possible after the claimant alleged torture on 14 April 2016. The breach made detention unlawful between 14 and 30 April, but the same detention would inevitably have occurred had the policy been followed because the report did not establish independent evidence of torture. Only nominal damages were therefore appropriate.

6. Hardial Singh. The four principles, as summarised in R (I) v Home Secretary [2002] EWCA Civ 888, required an intention to remove, detention for no longer than reasonable, release when removal could not be effected within that period, and reasonable diligence and expedition. The claimant was detained for removal, the 100-day period was reasonable in the circumstances, and removal remained realistically achievable until the absence of a reliable judicial-review timetable became clear.

7. The claimant’s repeated unmeritorious representations and judicial review proceedings were relevant to the period’s reasonableness, but did not provide an automatic justification for detention. The Secretary of State acted with reasonable diligence and released the claimant when the timetable became unreliable. Detention was therefore compliant with the Hardial Singh principles.

The claim succeeded only to the limited extent of the policy breach. The claimant was entitled to nominal, not compensatory, damages.

This was a first-instance judicial review in the Administrative Court. Permission was initially refused on the papers, but an oral renewal granted permission on the detention ground only. The claim was then determined by the High Court.