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

Detention pending removal for breach of immigration conditions may lawfully begin before written notice of curtailment, provided there are reasonable grounds for suspecting that removal directions may be given. However, a detained person must receive a proper doctor’s examination under rule 34 of the Detention Centre Rules within 24 hours of arrival at the first place where detainees are held. A consultation which is not directed towards identifying matters requiring a rule 35 report may be insufficient. Failure to comply, without good cause, renders subsequent detention unlawful. A First Responder must refer a trafficking allegation where the threshold is very low. The First Responder must not assess credibility or rely on irrelevant matters concerning trafficking in another country.

The claimant, a Namibian national detained after admitting breach of visitor conditions, sought judicial review, a declaration and damages for false imprisonment. Her challenges concerned the statutory power to detain before written curtailment of leave, compliance with rule 34 of the Detention Centre Rules, and the failure to refer her trafficking allegation under the National Referral Mechanism.

The claim proceeded in the Administrative Court because declaratory relief was sought, the defendant did not seek transfer, and the principal issues were legal. The court rejected the first ground but upheld the second and third grounds.

1. Jurisdiction. Although claims principally seeking damages for historic detention ordinarily belong in the Queen’s Bench Division or County Court, the Administrative Court had jurisdiction because the claim also sought a declaration and CPR 54.3(2) permits damages in a judicial review claim where damages are not the sole remedy.
2. Ground 1. Section 4(1) of the Immigration Act 1971 required curtailment of leave to be communicated in writing. The Notice of Removal did not expressly notify the claimant that her leave had been curtailed. Nevertheless, section 10(9) of the Immigration and Asylum Act 1999, read with paragraph 16(2) of Schedule 2 to the 1971 Act, permitted detention where there were reasonable grounds for suspecting that removal directions might be given in the future. It was unnecessary for curtailment to have been notified before detention. The ground therefore failed.
3. Ground 2. Rule 34 required examination by a doctor, not merely a nurse, within 24 hours of arrival at the first location where detainees were held. The doctor’s brief consultation on 24 September 2017 was not a full Rule 34 examination because it was not directed towards identifying whether a Rule 35 report should be made. The failure to arrange a compliant examination until 10 October 2017 rendered detention after the first 24 hours unlawful. A proper examination would have identified the claimant’s torture history and led to her release.
4. Ground 3. The First Responder’s referral threshold was very low. The decision-maker wrongly considered matters concerning alleged trafficking in the United Kingdom, although the claimant alleged trafficking in Namibia, and irrationally treated the delay in making the allegation as decisive. Credibility was for the Competent Authority, not the First Responder. The failure to refer also rendered continued detention unlawful.
5. Outcome. Grounds 2 and 3 succeeded, Ground 1 failed, and detention from 20 September to 13 October 2017 was unlawful. The claimant was entitled to damages for false imprisonment. Quantum was to be agreed or listed for hearing. No interim percentage payment of costs was ordered because the amount of costs was unknown.