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

A breach of Detention Centre Rule 34 may make immigration detention unlawful where the breach bears on, and is relevant to, the decision to detain. The claimant need not prove that compliance would have produced release; causation affects compensatory damages. The Secretary of State bears the burden of showing that detention would have continued in any event when resisting such damages.

A delayed or deficient Rule 35 report does not itself make detention unlawful where the report is promptly considered and would not have altered the decision. Detention may continue while a late asylum claim is investigated where there is a substantial absconding risk and a realistic prospect of removal, absent evidence that detention prevents a fair claim or creates discriminatory harm.

MA, a Pakistani national, sought judicial review of his immigration detention between August 2016 and April 2017. He challenged the failure to provide medical examinations under Rules 34 and 35 of the Detention Centre Rules 2001, the adequacy of detention reviews and reasons, the fairness of processing his asylum claims in detention, and alleged discrimination under Articles 5 and 14 of the Convention.

Permission to apply for judicial review was initially refused. The Court of Appeal granted permission and remitted the claim to the Administrative Court. MA had first claimed asylum based on Ahmadi faith and later advanced a claim based on sexual orientation. The central issues were whether procedural and medical failures rendered detention unlawful and whether the detention was discriminatory or unfair.

1. Rule 34. The court held that the failure to arrange the required medical examinations by a doctor within 24 hours breached Rule 34. Following R (EO and Others) v Secretary of State for the Home Department and R (DK) v Secretary of State for the Home Department, a breach is relevant to the lawfulness of detention where it bears on the detention decision. The claimant need not establish that the breach caused continued detention. That issue is relevant to compensatory damages, not to the anterior question of legality. The breaches caused no substantial damage because the contemporaneous nursing records indicated that MA would not have disclosed torture, mental illness or suicidal intentions during an earlier examination, and later medical evidence would probably have produced the same detention decision. Nominal damages were therefore appropriate.
2. Rule 35. The delay in obtaining a Rule 35(3) report did not render detention unlawful. The change in the guidance definition of torture may have contributed to the delay, but the report received on 20 December 2016 was promptly considered. The Secretary of State was entitled to conclude that the report disclosed no serious condition likely to prevent MA coping with detention during the period required for removal. The Secretary of State was not responsible in public law for deficiencies in a confidential medical report. Hindsight was irrelevant.
3. Detention reviews and fairness. The Secretary of State had adequate grounds for continued detention: MA had previously absconded, had a poor immigration history and presented a high risk of non-compliance. There remained a realistic prospect of removal through an emergency travel document. There was no contemporaneous evidence requiring the Secretary of State to treat MA as mentally unable to present his claim fairly, or to regard his later sexual-orientation claim as making detention unsuitable.
4. Discrimination. Detention was not unlawful or discriminatory merely because MA advanced a late and initially uncorroborated claim based on sexual orientation. The Secretary of State was entitled to investigate that claim while detention continued. There was no evidence of serious or sustained bullying, harassment or unsafe conditions known to the Secretary of State.
5. The Rule 34 breaches sounded only in nominal damages. The remaining claims were dismissed.

1. Court of Appeal: Permission to appeal was granted on the papers by Singh LJ on 22 July 2018. The claim was remitted to the Administrative Court for substantive consideration.
2. High Court (Administrative Court): The court found breaches of Rule 34, awarded nominal damages, and dismissed the remaining challenges.