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

The claimant challenged the lawfulness of his detention between 19 January and 24 February 2016. The court held that failures to arrange the medical examination mandated by Rule 34 of the Detention Centre Rules 2001 at Brook House and Harmondsworth were public law errors which bore on continued detention and therefore rendered detention unlawful from the expiry of 24 hours after arrival at Brook House and for the period at Harmondsworth. The court applied the principles in R (Lumba) v SSHD and R (Kambadzi) v SSHD to assess when a breach of policy or rules bears on detention. It preferred the approach in EO (Burnett J) and held that published policy which links Rule 34 examinations to Rule 35 reporting can make non-compliance material to continued detention.

However, on the causation question the court concluded that any Rule 34 examinations, had they been carried out, would not probably have produced information leading to earlier release. The claimant therefore was not entitled to substantial damages for false imprisonment but was entitled to nominal damages and a declaration of unlawfulness for the relevant period.

This was a first instance judicial review claim by a Pakistani national who had been detained under immigration powers after being identified as an overstayer. The claimant alleged unlawful detention (seeking a declaration and damages) on four main grounds: (1) failure to follow guidance on detention of asylum claimants basing claims on sexual orientation; (2) failure to comply with Rule 34 of the Detention Centre Rules 2001 by arranging a physical and mental examination by a medical practitioner within 24 hours of admission to each establishment; (3) unlawful delay in arranging a requested medical assessment for the purpose of Rule 35; and (4) maintenance of detention contrary to the Hardial Singh principles.

The court framed the principal issues as: whether failures to comply with Rule 34 or comparable policy/instruction rendered detention unlawful; whether any delay in providing a Rule 35 assessment created public law error material to detention; whether, if detention was rendered unlawful, the claimant would have been released earlier such as to justify substantial damages; and whether the Hardial Singh principles required earlier release in light of the nature and complexity of the asylum claim.

The judge examined the interplay between statutory rules (notably Rules 33, 34 and 35 of the Detention Centre Rules 2001), Home Office guidance (including the Enforcement Instructions and Guidance (EIG) paragraph 55 and Detention Services Orders) and the authorities on when breach of policy or rules invalidates detention (notably R (Lumba), R (Kambadzi) and EO). He held that where Home Office policy makes Rule 34 examinations an integral part of the process for identifying detainees who should, save in exceptional cases, not be detained (for example where torture is suspected and a Rule 35 report would trigger release consideration), failure to secure the Rule 34 examination within 24 hours bears on continued detention and renders it unlawful from the expiry of that 24-hour period.

On the facts the court found admitted failures at Brook House and Harmondsworth to comply with Rule 34 and a failure at Larne House to comply with DSO requirements was not shown to have the same effect because the statutory rule did not strictly apply there. On causation, the court found that contemporaneous nursing screening notes contained no material which a doctor would have discovered that would probably have led to a Rule 35 report or a decision to release; expert psychiatric reports prepared later were not probative of what a general practitioner would have discovered at the time. The claimant was therefore not entitled to substantial damages; he was awarded nominal damages and a declaration of unlawful detention for the relevant period.

The court also rejected the contention that the Hardial Singh principles required earlier release because the claimant’s asylum claim, including its complexity, did not at the relevant time show that removal could not reasonably be achieved within the period contemplated by policy and reviews.

The court held that the claimant's detention was unlawful from the expiry of 24 hours after his arrival at Brook House and continued unlawfully throughout his detention at Harmondsworth because Rule 34 examinations by a medical practitioner were not arranged within 24 hours. The court relied on the principle that a public law breach which bears on continued detention renders detention unlawful (applying Lumba and Kambadzi and preferring the approach in EO). However the claimant failed to establish causation for substantial damages because contemporaneous clinical screening would not probably have produced material leading to earlier release; accordingly substantial damages were refused and only nominal damages and declaratory relief were available. The Hardial Singh ground was dismissed on the facts.