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

Detention Centre Rules 2001 Rule 34 requires a physical and mental examination to be arranged for every detainee within 24 hours of admission. An examination may proceed without the detainee’s consent only where consent is given; a refusal is the relevant exception.

A breach does not automatically make immigration detention unlawful. The court must ask whether the examination, if conducted in time, would probably have led to a Rule 35 report identifying torture and to earlier release. Where independent evidence of torture exists, continued detention is normally permissible only in very exceptional circumstances.

The claimant, a Sri Lankan national, challenged his immigration detention at Campsfield and Harmondsworth removal centres in January and February 2016. He alleged that the defendant failed to arrange the admission examination required by Rule 34 of the Detention Centre Rules 2001, and failed to secure the related Rule 35 assessment after he disclosed torture.

The defendant accepted that no Rule 34 examination occurred, but argued that the claimant’s account was unreliable and that he might have declined an appointment. The central issue was whether the breaches caused unlawful detention and entitlement to substantial damages.

1. Rule 34 breach. Rule 34 of the Detention Centre Rules 2001 required a physical and mental examination to be arranged within 24 hours of admission. Initial health screening by a nurse was not sufficient. The evidence established failures at both Campsfield and Harmondsworth. There was no evidence that an appointment had been offered or refused.
2. Effect of breach. A breach of Rule 34 did not automatically render detention unlawful. The relevant question was whether timely examinations would probably have revealed matters requiring a Rule 35 report and resulted in earlier release. Rule 34 concerns provision of the examination; Rule 35 concerns the medical practitioner’s reporting obligation.
3. Torture evidence. The policy stated that persons supported by independent evidence of torture should ordinarily be detained only in very exceptional circumstances. The Rule 34 failure undermined the process for identifying and releasing torture victims. The court relied on R (EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), where Burnett J observed that a Rule 35 report would often result from the initial examination.
4. Causation and outcome. The later medical examination produced an unequivocal Rule 35(iii) report, consistent with the claimant’s account and injuries, and the defendant released him as a result. The court was satisfied that an examination within 24 hours would have led to the same conclusion. Detention was therefore unlawful from 24 hours after admission to Campsfield until release, subject to deduction of four days representing the reasonable period required to consider the medical report.
5. The claimant was entitled to substantial damages for unlawful detention. The parties were invited to agree an order, with damages to be assessed if agreement could not be reached.