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

Where a Rule 35 report provides independent evidence of injury possibly attributable to torture, continued immigration detention is lawful only in very exceptional circumstances under the published detention policy. Ordinary risks associated with immigration detention, including overstaying, a routine risk of absconding, refusal to leave voluntarily, or doubts about credibility, do not by themselves meet that threshold.

The decision-maker must apply the policy using the correct definition of torture and must address whether very exceptional circumstances exist. The court reviews whether the decision-maker was entitled, on the information available, to reach that conclusion. A failure to apply the policy, or reliance on irrational factors, renders continued detention unlawful.

The claimant, a Nigerian national, was detained under immigration powers from 22 February 2016 until his removal on 31 January 2017. His initial detention was accepted to be lawful. On 18 May 2016, a doctor made a report under Rule 35 of the Detention Centre Rules 2001, expressing concern that he might have been the victim of torture.

The Secretary of State accepted that the report constituted independent evidence of injury possibly attributable to torture, but maintained detention. The claimant challenged the decision under Chapter 55.10 of the Enforcement Instructions and Guidance. Permission was granted on that ground only. The central issue was whether very exceptional circumstances justified continued detention after 20 May 2016.

1. Claim succeeded. The claimant’s detention after 20 May 2016 was unlawful. The claim was transferred to the Queen’s Bench Division for assessment of compensatory damages.
2. The Secretary of State’s first response applied an invalid definition of torture by treating injuries caused by non-state actors as incapable of being torture. That approach was inconsistent with the policy definition identified in EO & Ors v Secretary of State for the Home Department [2013] EWHC 1236. Because the Secretary of State treated the Rule 35 issue as not engaged, she failed to consider whether very exceptional circumstances justified continued detention.
3. The court adopted the traditional public law approach. The question was whether the Secretary of State was entitled, on the information before her, to conclude that very exceptional circumstances existed. The issue was fact-sensitive and allowed some legitimate differences of view, although the question whether evidence was independent evidence of torture was relatively hard-edged. This approach was consistent with EO & Ors, [2013] EWHC 1236, and R (BA (Eritrea)) v Secretary of State for the Home Department [2016] EWCA Civ 458.
4. The later responses did not cure the defect. Overstaying, coming to the authorities’ attention after arrest, and refusing telephone interviews about an emergency travel document did not rationally establish the alleged high risk of absconding. The claimant had complied with reporting conditions, had a legitimate reason for declining the first interview while pursuing asylum, and attended the requested face-to-face interview.
5. An arrest without charge or conviction could not rationally establish a high risk of harm to the public. Nor could the limited corroborative value of the Rule 35 report, or ordinary doubts about credibility, amount to very exceptional circumstances. The factors relied on were routine detention considerations and did not meet the higher threshold required by the policy.
6. The Secretary of State failed to prove that the claimant would have been detained lawfully in any event. He was therefore entitled to compensatory, rather than merely nominal, damages. An unargued late claim for exemplary damages was rejected; the conduct did not approach the threshold identified in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122.

• Administrative Court: Permission to proceed was initially refused on paper by Green J, who certified the claim totally without merit. Bean LJ later granted permission, with hesitation, on the Chapter 55.10 ground only, refused permission on the remaining grounds, and remitted the claim for a full hearing.
• High Court (Administrative Court): The Chapter 55.10 challenge succeeded. The matter was transferred to the Queen’s Bench Division for assessment of compensatory damages.