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

A failure to arrange the medical examination required by rule 34 of the Detention Centre Rules 2001 does not automatically invalidate immigration detention merely because the rule has been breached. It does so where published policy links the examination to identifying detainees whose continued detention requires reconsideration, including through rule 35 reports. In an immigration removal centre, failure to arrange the examination within 24 hours therefore makes continued detention unlawful from expiry of that period. The detainee need not prove that examination would have resulted in release to establish unlawfulness, although causation remains necessary for substantial damages. The Hardial Singh principles require assessment of removability within the foreseeable initial decision period.

The claimant, a Pakistani overstayer, was detained under immigration powers from 19 January to 24 February 2016 at Larne House, Brook House and Harmondsworth. He claimed asylum based on uncertainty about his sexual identity and orientation. He sought judicial review and damages for false imprisonment, alleging failures to follow detention policy, failures to comply with rule 34 of the Detention Centre Rules 2001, delay in arranging a rule 35 medical assessment, and breach of the Hardial Singh principles.

The claim had been stayed pending R (Hossain & Ors) v Secretary of State for the Home Department [2016] EWHC 1331 (Admin). The central issues were whether the detention became unlawful through the medical-procedural failures, whether substantial damages were established, and whether the asylum claim and its possible appeal made continued detention unlawful.

1. Rule 34 examinations. Rule 34 required a physical and mental examination by a medical practitioner within 24 hours at Brook House and Harmondsworth. The two-hour nurse screening was not equivalent. Although the statutory rules regulate detention-centre management and do not alone determine the lawfulness of detention, published policy connected the rule 34 examination with rule 35 reports and the policy governing release or exceptional detention of vulnerable detainees.
2. That policy connection supplied the necessary relationship between compliance and the legality of continued detention. The claimant’s detention became unlawful on expiry of 24 hours after arrival at Brook House and remained unlawful at Harmondsworth. No equivalent breach was established at Larne House, where the statutory rule did not apply and the guidance required only that a medical appointment be offered on request.
3. Rule 35 request. The evidence did not establish what the claimant told healthcare staff when he requested a rule 35 assessment. The delay before 22 February therefore did not establish a material public law error. The response to the solicitors’ letter of 22 February was inadequate, but the claimant was released two days later and the evidence did not show that the delay itself made that period unlawful.
4. Damages. The claimant had to show that a timely medical examination would probably have led to earlier release. The contemporaneous nurse screenings disclosed no concern which a general practitioner would probably have reported under rule 35 or otherwise communicated as requiring reconsideration. The later psychiatric evidence was retrospective and did not establish this counterfactual. Only nominal damages were recoverable.
5. Policy and Hardial Singh. The detention decisions complied with the relevant guidance on the information then available. The nature of the asylum claim did not, without more, make detention inappropriate. Removability had to be assessed during the initial period required to investigate and decide the claim; the decision-maker need not assume refusal followed by a lengthy appeal. The claim succeeded only to the extent of nominal damages.

The claim was stayed pending the determination of test cases in R (Hossain & Ors) v Secretary of State for the Home Department [2016] EWHC 1331 (Admin). Permission to appeal in that case was refused, the stay was lifted, and revised grounds were filed. This was a first-instance judicial review determination by the Administrative Court.