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

Immigration detention must be reviewed against the circumstances and information available when each decision is made. A Rule 35 report need not prove torture, but it must have some corroborative potential before it can constitute independent evidence of torture. Where a report certifies that continued detention is likely to injure a detainee’s health, the decision-maker must engage with that medical assessment and consider whether the condition can be satisfactorily managed in detention. A response addressing a different question, or failing to engage with the medical evidence, is irrational and inadequate. The presumption in favour of release may be displaced only by very exceptional circumstances, assessed in the light of the current risks and medical position.

The claimant, a Lithuanian national detained pending deportation, sought judicial review of two decisions maintaining his detention. The first followed a Detention Centre Rules 2001 Rule 35 report recording his account of past torture and injuries. The second followed a further Rule 35 report certifying that his terminal, metastatic prostate cancer was likely to be injuriously affected by continued detention.

The court considered whether the first decision lawfully addressed independent evidence of torture and very exceptional circumstances, and whether the second decision lawfully addressed the medical evidence, the suitability of detention, and the continuing risks of absconding or offending.

1. First detention decision. The court applied the approach in SA (Holland) v Secretary of State for the Home Department [2014] EWHC 2570 (Admin): each detention decision must be assessed by reference to the circumstances and information apparent at the time, without attributing later-acquired knowledge to the decision-maker. The first decision properly considered the claimant’s account, the scarring and surgical evidence, the absence of an earlier torture claim, and alternative explanations for the injuries. The material did not amount to independent evidence of torture. The decision was therefore lawful.
2. Independent evidence of torture. The court applied the distinction explained in R (on the application of EO, RA, CE, OE and RAN) v Secretary of State for the Home Department [2003] EWHC 1236 (Admin): independent evidence is evidence beyond the detainee’s own assertion and need not itself prove that torture occurred. The first decision-maker was entitled to conclude that the Rule 35 report merely recorded the claimant’s account and did not provide sufficient independent corroborative material.
3. Second detention decision. By February 2016 the medical evidence showed widespread metastases, likely palliative treatment, and a need for multidisciplinary medical and nursing care. The response did not meaningfully engage with the doctor’s certification that continued detention was likely to injure the claimant’s health. It omitted the relevant question whether the condition could be satisfactorily managed in detention and instead asked whether the claimant’s health would deteriorate. That was the wrong question and the conclusion was irrational and inadequate.
4. Very exceptional circumstances and order. The later medical deterioration materially reduced or removed the earlier risks of flight and offending. The presumption in favour of release was not arguably displaced by very exceptional circumstances. Judicial review was therefore granted in relation to the second detention decision, and the detention pursuant to it was declared unlawful. The first detention decision remained lawful.