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England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cham, R (on the application of) v Secretary of State for the Home Department (Rev 1) [2016] EWHC 1345 (Admin) (17 June 2016)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1345.html
Cite as: [2016] EWHC 1345 (Admin)

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Neutral Citation Number: [2016] EWHC 1345 (Admin)
Case No: CO/5254/2014


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


On the application of
- and -



Stephanie Harrison QC and Michelle Knorr (instructed by Wilson and Solicitors LLP) for the Claimant
Rory Dunlop and Amelia Walker (instructed by Government Legal Department) for the Defendant
Hearing dates: 18 – 19 May 2016



Crown Copyright ©

    The Honourable Mr Justice Blake:


  1. This is the rolled up hearing of a renewed application for permission and, if permission is granted, determination of a claim that was lodged on 13 November 2014 and has been pending in the Administrative Court ever since. At the conclusion of the proceedings I granted permission on each issue.
  2. The claimant is a national of the Gambia born in 1980. He came to the UK on a visitor's permit in 2007 and overstayed his limited leave. In 2012 he met a Polish woman online and after a few months they decided to marry which they did in October 2012 by a proxy ceremony in the Gambia. It is said that they cohabited for a period but at some point in the summer of 2013 the matrimonial relationship broke down and the couple separated. The claimant says that, in part at least, the breakdown was caused by his disclosure that he was bi-sexual and had sexual feelings for members of his own sex.
  3. The claimant had applied for an EEA residence permit in October 2012 on the basis of his marriage. He was represented privately by a firm of solicitors Stuart Karatas and Co (Karatas) for this purpose. On 19 March 2013 he was called for an interview by the Home Office together with his wife and but neither party attended. On 18 July 2013 the application was treated by the Secretary of State as having been withdrawn by reason of non-attendance. On 19 July 2013 Karatas complained that neither they nor the claimant had any notice of the interview; by then the couple had separated although not divorced.
  4. In June 2014 the claimant decided to claim asylum. He indicates in his subsequent witness statement that he had some conversation with Karatas about doing so. He attended in person at the Asylum Screening Unit (ASU) on 17 June and was told to return on 25 June 2014.
  5. On 25 June 2014 he attended the ASU and completed the asylum pro- forma in English, his primary language. He indicated that he had an address available to him during the asylum process in Trowbridge, Wiltshire and gave a mobile phone number for contact. He gave his full particulars and immigration history. He held a valid passport until October 2017. He explained that he decided not to continue with his EEA application in 2013 after he had discussed matters with his solicitor.
  6. He set out the basis of his claim for asylum as follows:
  7. "I came to the UK because I had problems in Gambia, because of my sexuality. I am bi-sexual. No (problems before coming to the UK) apart from being harassed and tortured by people living in my village..who know about my sexuality"

    Asked how he was tortured he said:

    "By being hit in the mouth by two guys. One hit me in the mouth and left with a scar. The other guy had a blade and cut me on my hand".
  8. This happened in March 2007. He showed his scars to the officer. He revealed he had a same sex partner in Gambia and decided to come to the UK after the death of his mother for his own safety. A friend Nathan was supporting him (and sometimes his wife) in the UK.
  9. When asked to explain why he could not return to Gambia, he indicated because of harassment and torture, referring to the scars on his hand and lip. He said that his mother died 17 May 2007 after being in hospital for 43 days having been hit on the head with a brick when she came became involved in an incident when some local boys were making disparaging comments about the claimant to his sister and cousin in the village. He produced a copy of his mother's death certificate recording the death of Amie Cham aged 44 from a head injury on 17 May 2007. The death was registered on the 2 June 2014, the same date as a certified extract was made.
  10. Asked about any further evidence or documents relevant to his claim, the claimant merely identified the information already given namely the scars on his hand and lip and his mother's death certificate.
  11. On the basis of this information the claimant was considered suitable for the Detained Fast Track (DFT) process for determining asylum claims. He was served with a notice setting out the reasons for his detention as being: he had previously failed to leave the UK when required to do so and it was considered that the claim could be decided quickly using the fast track procedure. The General Case Information Database notes further record that the Fast Track Procedures Guide was served on the claimant and its contents explained. This guide mentions, amongst other things, an entitlement to free legal advice and representation. Release of medical information and induction forms werecompleted and it were noted 'subject has requested private solicitors to represent him in his asylum matter.'
  12. The claimant was then transferred to Harmondsworth Detention Centre. He completed a medical pro forma conducted by a nurse on his arrival there. The following day Karatas wrote to the Home Office contesting the allocation to the DFT because he was not yet divorced from his Polish wife. The Home Office responded to this representation on 30 June maintaining the decision to process the claim in the DFT.
  13. On 2 July 2014, the claimant completed the statement of evidence form in the full asylum interview. It was noted that Karatas were representing him but had not attended. There is no evidence that they were contacted but there is a file note that the claimant indicated he was happy to be interviewed in the absence of a legal representative. The pro-forma document starts with the information:
  14. 'This is your opportunity to explain the reasons why you are claiming asylum and an opportunity for us to obtain all the information necessary to make a decision on your application.'
  15. The asylum interview gives a more detailed account of the two incidents mentioned in the screening interview: the March 2007 assault and the April 2007 injury to his mother. The claimant was emotional when describing the death of his mother. Nathan was described as someone he had a brief but continuing relationship with in the UK, and he met him through a Bristol based gay lesbian and bisexual group that organises social events (GEAR). He was given until 6.00pm on Friday 4 July 2014 to submit further representations. The claimant forwarded to his solicitors an email received from GEAR on 23 June advertising a forthcoming social event on 20 July. Karatas forwarded this email to the Home Office on 4 July as evidence that 'he was a long-time member of the association'.
  16. On 8 July 2014, the asylum claim was refused on credibility grounds. It was not accepted that the claimant was bisexual as claimed or had the experience in Gambia that he claimed. It was recognised that gay men are a particular social group at risk of persecution in the Gambia. The absence of supporting evidence was noted, as was the delay in making a protection claim since first arrival in the UK. The decision to detain in the DFT was maintained while the claimant exercised the right of appeal. This decision was maintained on the grounds that he was a single male, fit for detention and did not meet any of the DFT exclusion criteria.
  17. On 13 July the claimant instructed a new firm of solicitors (Cardinals) to represent him at his appeal. This solicitor was paid privately with assistance from a friend. The claimant met his representative for the first time on 15 July. At his solicitor's request to the judge his appeal was adjourned on 16 July, principally to afford him an opportunity to produce evidence from Nathan. The claimant was handed his mobile phone to make a call to Nathan during the course of the hearing. Nathan answered the phone but was at work and unwilling to discuss intimate matters. The appeal was adjourned to 30 July.
  18. No witness statement or other evidence was subsequently produced. The claimant was unable to pay for Cardinals and a third firm (Gracelands) took over his representation. He had an interview with his new advocate obn the day of the hearing. The First-tier Tribunal (FfT) judge agreed with the Home Office decision when dismissing the appeal on 1 August. Permission to appeal was refused successively by the FtT Immigration and Asylum Chamber (IAC) and the Upper Tribunal on 6 and 13 August 2014. Detention with a view to removal was maintained. Removal directions were given on 27 August for 3 September. The claimant made an application for a stay on removal that was rejected by the UT on that day. Removal directions were re-issued on 11 September for the 17 September 2014.
  19. On 9 September the claimant met a representative of his present solicitors Wilson and Co (Wilsons) at an advice clinic at the removal centre. It is through their representations that the issues giving rise to this judicial review first arose.
  20. They made representations on 12 September 2014 submitting a recent statement from the President of Gambia about repressive measures he would take against failed sexual orientation asylum seekers and a statement from Sanna, a friend of the claimant, who has known him for 14 years in Gambia and London supporting the proposition that he had a bi-sexual orientation. These representations were refused on 17 September. On the same day the claimant refused to embark on a plane to Gambia stating that his life would be in danger there. Removal was deferred and he was returned to the detention centre.
  21. On 22 September the claimant disclosed to Wilsons that he had been ill-treated in Gambia in December 2006, three months before the incidents he had previously relied on. His solicitors advised him to seek an examination by a GP. Dr Ali submitted a report on 25 September 2014, where he expressed concern that on the claimant may have been the victim of torture. The report recorded details of an allegation of torture during a period of detention in December 2006 following arrest by the paramilitary police in Gambia. Amongst the forms of ill-treatment alleged that might have left a mark are claims of: being forced into a hole with sharp instruments, hot candlewax being used on anus and genitalia; insertion of 10 inch pipe to anus that still caused lumps and bleeding and lashing with a rope. In addition to the previously recorded scars to the lip and right hand, a body map records external haemorrhoids but no other evidence of burn marks to his anus or penis; candle burn to the back of his upper right leg, and possibly the front knee area of this leg; a sharp instrument mark to the upper front left leg. Detention was maintained on 26 September and it was not considered that this report constituted independent evidence of torture. Fresh removal directions were set for 14 November.
  22. On 20 October 2014 the appellant was examined by Dr Juliet Cohen, the senior physician of the Medico-Legal Report Service of the organisation Freedom from Torture (formerly the Medical Foundation). She is someone with extensive experience of such reports and the use of the Istanbul Protocol for assessing medical support for allegations of torture. On 5 November she provided a substantive report of her findings consisting of twelve pages and 57 paragraphs. This report was very different from anything else that had been produced as evidence. In summary she found:
  23. i) Five burn scars on the top of the feet and upper left and right thighs, that were typical of deliberate infliction and having regard to their number and location it was considered that deliberate infliction was relatively more or much more likely than accident.
    ii) Two scars on the left elbow highly consistent with an attribution to crawling over rough surfaces.
    iii) He gave an account of anal incontinence and pain consistent with trauma to the sphincter. The large external haemorrhoid corroborates his account of constipation secondary to pain.
    iv) Other injuries, including the scars to the hand and lip, were noted but no attribution as to the likelihood of accident or deliberate assault could be made.
    v) Some other injuries to the body that the claimant said were occasioned accidentally were disregarded.
    vi) Psychological symptoms were found consistent with a diagnosis of Post-Traumatic Stress Disorder (PTSD). These included low mood, tearfulness, sleep disorder, hyper arousal at indicators of detention, reported poor memory and concentration, social avoidance, difficulty of trusting others, and profound feelings of hopelessness. These conditions were reported to have been exacerbated during detention.
    vii) She found no evidence of fabrication of either the physical injuries or the psychiatric condition. The history and the examination were congruent. The degree of healing was consistent with the timescale in the history.
    viii) She observed that patients with PTSD suffer from:
    'a characteristic lack of help-seeking behaviour, especially in a situation where they find it harder to trust others' and
    'torture destroys an individual's trust in others and it can be very difficult for victims to describe their experiences to others …intrusive recall of their torture experiences are associated with deep shame and humiliation such as are felt by victims of sexual assault…disclosure depends on a high level of trust and rapport developing and it is more likely to occur in the context of a clinical setting'.
  24. This report was submitted by Wilsons on 7 November with a pre-action claim for judicial review. It was considered and rejected by the defendant in a further decision letter of 11 November where amongst points being made it was concluded:
  25. i) Dr Cohen's explanation for why the December 2006 torture had not been disclosed in June and July was not considered reasonable in the light of the questions asked in the screening interview and the details given in the asylum interview.

    ii) It was not considered that Dr Cohen was qualified to give an assessment PTSD or mental health, and the observation of re-experiencing and avoidance of painful incidents depended on the self-reporting of the claimant. Reliance was placed on some 2004 AIT decisions commenting on previous reports by Dr Cohen.

    iii) Other explanations were possible for the physical injuries recorded.

    iv) Little weight could be afforded to this document in relation to the asylum claim.

    v) The new account of torture was not accepted and it was not considered that the addition of the report meant that there was a reasonable prospect of success in a further appeal before a judge.

  26. Thereafter, the claim for judicial review was lodged; removal directions were first deferred and then stayed pending determination of the claim. Although detention was maintained and no relief was given in applications made to the High Court, the claimant was released on bail by the FtT judge on 18 December 2014.
  27. Permission having been refused on the papers in January 2015, a renewal hearing was adjourned on various occasions by consent or order of the court. A stay was agreed while the defendant considered further evidence in the form of statements from the claimant and witnesses to his social and personal life and a further report on his mental state
  28. Amongst the evidence supplied was a July 2015 report by Mary Robertson, a consultant clinical psychologist who, in a detailed 64 page report, made a firm diagnosis of PTSD requiring treatment.
  29. In her report she made a clinical observation that the claimant was struggling to answer questions about December 2006 events and giving the impression that the questioning triggered flashbacks. She considered the claimant's account to be consistent with her clinical findings, and noted that some of the reported symptoms were not commonly known in the public domain and would require a malingerer to be 'a skilled actor and to be informed to an expert level on the many responses to trauma that may be experienced'.
  30. When asked about the potential impact of detention on his ability to present his case she concluded that the claimant's mental health would have impacted on his ability to present his case while in the detained fast track which combined with the absence of a trusting relationship with solicitors coupled with his avoidance of talking about these events and perhaps a lack of awareness of the necessity of disclosure, would have further impacted on his ability to present his case. She considered that his failure to disclose his 2006 torture is clinically plausible in the absence of an opportunity to establish trusting relationships.
  31. On 30 September 2015 the defendant maintained the refusal of asylum despite the fresh evidence. However, on the basis of the Robertson report, it was now accepted that there was a fresh claim that might have prospects of success before an immigration judge and an opportunity for further appeal was generated. There was no reference to the Cohen report of the previous November.
  32. Alongside these events, the following legal decisions concerned with the DFT should be noted:
  33. i) On 9 July 2014 Ouseley J delivered his judgment in Detention Action v Secretary of State for the Home Department [2015] EWHC Admin 2245 (Admin). I do not propose to attempt to summarise the 232 paragraphs of this important judgment to which I pay tribute. It is sufficient to note that the general theme is that the DFT as operated at that date was not by itself unlawful, but special care needed to be taken to ensure that vulnerable categories, including those for whom there is independent evidence of torture are screened out of the process as such cases are complex and the individual is not suitable for detention (see [114], [116], [120]). The importance of medical reporting in the detention centre was noted (see [122] and [135]). An important safeguard to ensure that the process could still work fairly and unsuitable cases were screened out was access to competent lawyers who could take instructions having gained the applicant's confidence (see [195], [219] to [221]).
    ii) On 25 July 2015, there was a second judgment in Detention Action [2014] EWHC 2525 (Admin) where Ouseley J declined to direct that all cases that had passed through the DFT needed to be reconsidered. That fact alone did not necessarily mean that the individual claim was unfairly decided. This overall conclusion was upheld by the Court of Appeal on 9 October 2014.
    iii) On 16 December 2014 the Court of Appeal disagreed with one aspect of Ouseley J's judgment. Lord Justice Beatson gave the leading judgment ([2014] EWCA Civ 1634 [2015] INLR 372 at [93] to [97]). He concluded that properly construed overall in the light of the requirements of clarity and transparency, the DFT detention criteria did not continue to apply after refusal of the asylum claim but pending appeal. Any detention made after the asylum decision would have to be under the general detention criteria where there was a presumption in favour of release.
    iv) On 12 June 2015 Nicol J declared that the requirements for expedition in DFT cases set out in the Fast Track Rules 2014 rules were unlawful as a fair hearing could not be afforded within the contemplated time table. This decision was upheld by the Court of Appeal on 29 July in Detention Action v FtT IAC) and others [2015] EWCA Civ 840 [2015] 1 WLR 5341.
    v) On 3 July 2015, the case of JM and others v SSHD came before me for approval of a settlement agreed between the parties [2015] EWHC 2331 (Admin). I approved the terms of the orders sought for reasons set out in the judgment. The parties were agreed that
    'the DFT as operated at 2 July 2015 created an unacceptable risk of unfairness to vulnerable or potentially vulnerable individuals'.
    The unfairness included the failure to identify such individuals at the outset, or recognise that they might need further medical investigation when sufficient pointers to vulnerability were identified. Vulnerable individuals included victims of torture or significant ill-treatment or those who may be suffering from mental disorder or other impairment. Any such condition may affect their ability to present their claims in the DFT. It was agreed that each of the claimants were unlawfully detained from the date when sufficient indicators of vulnerability had been disclosed. It was agreed that in two of the cases where adverse asylum decisions had been made the decisions should be quashed fresh decisions made. As a result of this litigation the Minister of State for Immigration had made a statement in the House and had suspended the use of the DFT the previous day.
    vi) On 20 July 2015 in the additional cases of Y and PU the court approved another order in respect of claimants who were potentially vulnerable as victims of trafficking.

    vii) Another judicial review claim of an asylum decision made in the DFT was conceded on 7 March 2016 having regard to these earlier judgments and orders, with the recognition that the original refusal of the decision should be withdrawn and the matter reconsidered.

    The challenges

  34. The grounds of challenge, the outline arguments and supporting evidence in respect of these challenges have developed since 13 November 2014. As I understand them, the claimant's core case may be distilled as follows:-
  35. i) On what was known about him and his claim by the end of the screening interview on 25 June, he should never have been detained under the DFT Policy as it then operated. This was not a case that could be decided quickly and there were indicators of vulnerability.

    ii) Alternatively, on what was known about his claim and circumstances by November 2014 and September 2015, it should by then have been recognised that the claimant was a vulnerable asylum seeker in respect of whom there had been inadequate protective safeguards. The claimant should not have been assigned to the DFT in June 2014.

    iii) If by either of these routes, the claimant should not have had his asylum claim processed through the DFT, then the asylum decision made in his case on 8 July 2014 should be revoked and along with it, the appellate decision reached on the basis of it on 1 August 2014. Whether the Secretary of State now recognises the claimant as a refugee with a well-founded fear or persecution or not, a wholly new decision should be taken with an open mind, independent of the decision made as a result of a flawed process in the DFT. It should only be this new decision (if adverse) that is the starting point for any appellate assessment in the First-tier Tribunal rather than the previous appellate decision as would be the case applying the well-established guidance in the case of Devaseelan [2002] UKAIT 702.

    iv) Further, it is contended that the appellant has been unlawfully detained for some or all of the period between 25 June 2014 and 18 December 2014 because:

    a) If he never met the criteria for the DFT in the first place then he should never have been detained at all during the processing of his claim.
    b) If limb a) fails, then the detention became unlawful by reason of the absence of a rule 34 examination by a qualified medical practitioner on admission to the reception centre on 25 June that would have provided the claimant with an opportunity to have disclosed his medical unsuitability for detention in the DFT.
    c) In any event, the claimant was detained under DFT criteria, after the negative asylum decision on 8 July and throughout the period of the pending appeal until he became appeal rights exhausted. It is clear from the decision of the CA in Detention Action v SSHD (at [25 (iii)] above) that the DFT policy did not permit detention on such grounds.
    d) There was no or no sufficient justification to have detained the claimant under the general detention policy, outside the DFT policy, as there was insufficient evidence that he presented a significant risk of absconding.
    e) Further, when a rule 35 report was obtained from Dr Ali on 25 September 2014 that report provided objective medical evidence of torture supportive of the claimant's account and should have led to release.
    f) Finally and in any event, Dr Cohen's report of 7 November 2014 provided objective medical evidence corroborating a claim to have been the victim of torture and that report both required release from detention on that ground and because removal could no longer be said to be imminent.
  36. I will consider these submissions under three broad issues where I will also consider Mr Dunlop's response to them.
  37. Issue 1: Was it lawful to have placed the claimant in the detention fast track on 25 June ?

  38. Under this head of the claim, Ms Harrison QC submits that by reason of what was known or should have been known following the screening interview of 25 June, the claimant could not have had his claim assigned to the DFT in accordance with the policy because:
  39. i) It was known that the claim was based on sexual orientation. It should have been known that such claims can never be assessed within the indicative period of a fortnight. They cannot be speedily and fairly determined within the meaning of the DFT, as they would always require supporting evidence to confirm sexual orientation.

    ii) The claimant had identified that he was the victim of torture at the screening interview and he pointed to scarring that was said to be corroborative of that torture. It should therefore have been apparent that the claim could not be decided quickly by reason of the need for further medical examination and the claimant was not a suitable candidate for detention.

    iii) The indicators of vulnerability and other unsuitability for the DFT are strengthened by the evidence obtained between 25 September 2014 and 2015 that would have been available earlier if the correct procedures had been used.

    iv) The safeguard considered critical by Ouseley J in July 2014 was the ability to develop a trusting relationship with lawyers. It should have been clear that this protective factor was not present in the claimant's case.

  40. Submission (i) depended in part on Ms Harrison's reading of the decision of the Court of Appeal in R (JB) (Jamaica) v SSHD [2013] EWCA Civ 666 [2014] 1 WLR 836. In this case a claimant who had been in the UK for five months and overstayed his leave claimed asylum on presentation to the Home Office. A week later he was screened into the DFT on a claim of persecution by reason of sexual orientation. He was not asked supplementary questions at screening about the means by which he proposed to substantiate this claim. On substantive interview the claimant indicated that he would rely on information from Jamaica to support his sexual orientation. The claim was rejected a week later noting the failure to provide supporting evidence. The Secretary of State's argument accepted by the judge was that the claimant had five months to prepare a claim for asylum.
  41. Moore-Bick LJ, giving the lead judgment in the Court of Appeal, did not agree. The contention had not been adequately explored by questions as to when the claimant knew he could claim asylum, when he sought legal advice and when he began to obtain supporting evidence. The Lord Justice (at [29]) did not see how it could have been concluded that the claimant's case was one that could be decided quickly. It was a claim of sexual orientation that could only be reliably established from sources external to the claimant itself. He concluded (at [30]) that no reasonable decision maker could have concluded on the material that this was a simple case suitable case for the DFT. This conclusion meant it was unnecessary to decide whether the relevant test was rationality or the court's independent assessment of fairness, but he expressed the view that the answer may depend on the issue to be decided.
  42. On the strength of this decision, Ms Harrison submitted that no sexual orientation asylum claim, depending on credibility as opposed to country conditions, was suitable for the fast track, and as this was such a claim, it was unsuitable because it could not be decided quickly.
  43. I am unable to accept that submission. Any judge sitting in the Immigration and Asylum Chamber will be familiar with opportunistic sexual orientation claims made very late in a person's immigration history, seeking to fit him or herself with criteria for protection in country guidance or other cases. I can see no reason why such claims are unsuitable for the fast track. I do not read Lord Justice Moore-Bick's remarks as indicating that any claim to sexual orientation persecution is for that reason alone unsuitable for the DFT. The conclusion of the court was based on a combination of factors in that particular claim: a limited period of time of presence in the UK, no information about contact with a lawyer, no questions asked at screening about what evidence would be relied on, a positive statement at the substantive interview that supporting material would be obtained from Jamaica, and a speedy refusal based on absence of supporting material.
  44. By contrast with the case of JB, this claimant had been in the UK for 7 years before making a protection claim. He had been in contact with lawyers for 2 years before he made the claim and those lawyers continued to act for him in the asylum claim and made two representations in the course of it. He had an immigration history not merely of someone who had overstayed his leave but also had made an EEA marriage claim when there was some reason to doubt the validity of the proxy marriage, the genuine nature of the matrimonial relationship or its intended durability. The claimant clearly had made some preparations to support his case including registering his mother's death and obtaining a certified copy of the entry in Gambia on 2 June 2014. He was asked at screening about other evidence he intended to rely on and identified none. At the full interview he identified someone in the UK who could speak to his sexual orientation but had done nothing to contact that person until the day of his first appeal hearing.
  45. In support of submission (ii), Ms Harrison relies on the observations of Mr Justice Burnett (as he then was) in R (ota EO and others) v SSHD [2013] EWHC 1236 at [80]. He said that under the detention policy torture means
  46. 'any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining a confession… punishing him for an act…or intimidating or coercing of him before or for any reason based upon discrimination of any kind'.
  47. I acknowledge the breadth of the definition but I do not accept the description of the March 2007 assault given by the claimant in screening (see [6] above) fell within it. In my view the description was a single act of an assault by villagers. Assessing what was then said, overall it is insufficiently serious to be recognised as torture, despite the label the claimant put on it.
  48. Submission (iii) turns on the impact of Dr Ali's report. I propose to consider the objective value of the absence of a GP's examination on 25 June and Dr Ali's report of 25 September when considering the detention claim below. It suffices at this stage, to note that this report was not available for consideration or reasonably predictable by the time of the decision to assign the claimant to the DFT.
  49. As to submission (iv) I would accept from what is now known as to the quality of the advice given and representation made in the asylum claim by Karatas it does not appear to have been adequate. For any full assessment to be made on this issue, the claimant will need to waive legal privilege and disclose his asylum file with them and provide them with the opportunity to comment. This has not yet been done.
  50. However, I do not consider that the defendant was obliged to make its own assessment of the quality of the representation provided or give legal advice on the evidence needed to support a claim either in substitution for or supplementary to that given by Karatas.
  51. The defendant was informed that Karatas were representing the claimant on his asylum claim as well as his EEA claim and the claimant did not nothing to indicate otherwise. In those circumstances, his answers about the evidence he intended to rely on were answers given after the opportunity had arisen to obtain legal advice. The nature and quality of that advice would not be known to the defendant.
  52. Karatas did not attend the substantive asylum interview on 2 July, but it is recorded that the claimant indicated that he was willing to proceed without the presence of his legal representative. There is no indication that he was expecting them to attend.
  53. A legally aided claimant who expected his representative to be present might well have required the defendant to make inquiries as to why his representative was not present. If the claimant is paying privately, and makes no comment on the non-attendance of his representative, it would be reasonable to assume that his willingness to proceed in the absence of a representative may have been to keep costs down. The two representations made 26 June and 4 July show that the claimant was in contact with Karatas during this period.
  54. In short, none of the information presented by the claimant, or the surrounding circumstances known to the defendant suggested that this was a case that did not meet criteria for inclusion in the DFT or that there were indicators that a decision could not be made quickly or that the claim was otherwise unsuitable for the DFT.
  55. Issue 2: Should the decision of 8 July 2014 have been set aside in the light of the subsequent material presented by 11 November 2014 and 25 September 2015?

  56. In my judgment, the position had changed by 11 November 2014 when Dr Cohen's report was available for consideration by the defendant. By this stage it was apparent that the claimant was making a claim of having been tortured in detention in December 2006 and there were careful medical findings made of both physical scars and symptoms of PTSD to give independent support to such a claim. These findings were using the appropriate tools of the Istanbul Protocol and where possible gave an assessment of the likelihood of caution or fabrication. Mr Dunlop for the defendant rightly accepts that this report was independent evidence of torture.
  57. In my view, the decision letter responding to Dr Cohen's report is flawed in its negative tone, suggesting that lessons have not been learned from the potential contribution of competent medical reports generally to the asylum process in the intervening five years, and the particular expertise of the Foundations (that is to say Freedom from Torture and the Helen Bamber Foundation).
  58. The decision is flawed in the following respects:-
  59. i) It fails to understand the special competence of the foundations and their medical reporters in giving quality medical reports. This is recognised in the defendant's own policy (Medico-Legal Reports from the Foundations Version 3.0 17 January 2014:
    'Both Foundations are accepted by the Home office as having recognised expertise in the assessment of physical, psychological, psychiatric and social effects of torture. Clinicians and other health care professionals from the Foundations are objective and unbiased. Reports prepared by the Foundations should be accepted as having been compiled by qualified, experienced and suitably trained clinicians and health care professionals'.
    ii) A finding of positive medical support for a claim of ill treatment made by a competent expert in accordance with the standards of the Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture, is precisely what is meant by independent evidence of torture. Such evidence must be very carefully considered and evaluated both at first instance and on any subsequent appeal.

    iii) The question of fabrication is first of all for the expert to consider. In Y and another (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362 Sedley LJ said :

    "11. While no tribunal is bound simply to accept everything that such experts say because they have gone uncontradicted, it is well established that the tribunal must have, and must give, acceptable reasons for rejecting such evidence. …
    12. … where the factual basis of the psychiatric findings is sought to be undermined by suggesting that the appellants have been exaggerating their symptoms, care is required. The factuality of an appellant's account of his or her history may be so controverted by the tribunal's own findings as to undermine the psychiatric evidence. This happens from time to time, but it did not happen here. What happened here was that the designated immigration judge himself formed the view that the appellants (who had not given oral evidence before him) had been calculatedly exaggerating the symptoms they recounted to the expert witnesses. That is in the first instance a matter for the experts themselves, a fundamental aspect of whose expertise is the evaluation of patients' accounts of their symptoms: see R (M) v IAT [2004] EWHC (Admin) 582 per Moses J. It is only if the tribunal has good and objective reason for discounting that evaluation that it can be modified or – even more radically - disregarded."
    In R (on the application of AM [2012] EWCA Civ 521 Rix LJ said at [30] of this judgment:

    "If an independent expert's findings, expert opinion, and honest belief (no one suggested that her belief was other than honest) are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of "evidence" is not the same as a requirement of "proof", conclusive or otherwise. Whether evidence amounts to proof, on any particular standards (and the burden and standard of proof in asylum cases are not high) is a matter of weight and assessment".

    iv) The citation from two 2004 AIT decisions on Dr Cohen's reports suggests that the negative template on the word processor has not been updated in the light of the Secretary of State's guidance and the case law summarised in JL (medical reports credibility) China [2013] 145 (IAC). Evidence from a qualified and competent expert is important in the assessment of credibility and must be carefully considered with the relevant expertise respected, albeit that it is not necessarily decisive as to the credibility of the applicant's account where there are pertinent contra-indicators explained in the decision.

    v) The proposition that a GP who has experience of the effects of torture (let alone a forensic expert with the experience of Dr Cohen) cannot comment on the existence of symptoms diagnostic of PTSD suggests ignorance of the principles of medicine and forensic reports as well as the Secretary of State's own policy (above) which states:
    'No report or its contents should be given little weight on the grounds that the writer, whether a GP, a consultant, other clinician or health care professional is not sufficiently qualified to write it. In particular, in relation to mental health conditions, the report will be accepted by the Home Office whether completed by a GP, clinical psychologist consultant psychiatrist other health care professional or other expert with extensive experience in this field."
    Whilst a specialist consultant reporting after a clinical examination at greater leisure may well be able to add further more detailed and more compelling data as to psychological state, this is no way undermines the careful findings of Dr Cohen on this issue, each one of which accurately identifies the issue on which Ms Robertson was to report 8 months later.
    vi) It is striking that by 11 November 2014, the decision maker should have had the benefit of the reasoning of Ouseley J's July 2014 decision that provides a thoughtful evaluation of the contribution of medical reports to DFT decision making and the role of the GPs assessment in summary rule 35 reports on both physical and mental health. I would observe that if such a GP can make a relevant contribution to the issue, it is depressing to read in November 2014 that the decision maker has been so dismissive of Dr Cohen's assessments especially as the psychological findings do not stand alone and are supported by the physical findings.
  60. I recognise that the claimant's disclosures from the 22 September onwards were wholly different to what he had said in the screening and asylum interview. Essentially there are two contrasting potential explanations:
  61. i) he has deliberately invented new details in an attempt to undermine the previous adjudication and final resolution of his claim; or

    ii) he was indeed a particularly vulnerable asylum seeker that experience suggests are often unable or unwilling to make disclosures about deeply painful and embarrassing sexual matters in the absence of the opportunity to build a trusting relationship with a legal adviser or other professional. It is now recognised that the DFT is not a suitable place for speedy assessment of the claims of such people and the experience of detention itself may prevent them being able to give a coherent account of their anxieties.

  62. Ms Robertson's report confirms Dr Cohen's and adds to it. It gives substantial medical support for the plausibility of the proposition that a person who has been the victim of serious ill-treatment in detention on account of his sexual orientation and who has not had the opportunity to build a relationship with professionals that would enable him to make disclosures of painful and humiliating experiences, may not make such a disclosure when interviewed in the DFT. As I understand it, the experience of detention is positively counter-productive in that it revives painful memories and thereby operates to discourage disclosure of such matters.
  63. I am not concluding that as a result of either Dr Cohen's report in November 2014 or Ms Robertson's that was the basis of the fresh claim decision in September 2015, the defendant was bound to grant asylum and that no other rational decision could have been made. Nevertheless, I am wholly satisfied that the indicators of vulnerability now available for assessment by the decision maker precluded a rational conclusion that the assignment of this claim to the DFT was appropriate. There was now an abundance of evidence to suggest that the claimant:
  64. i) Had indeed sustained serious intentionally inflicted injuries when in Gambia.
    ii) Some of the injuries and other supporting evidence were indicative of a nexus with perceived sexual orientation;
    iii) The claimant had an adverse reaction to being detained and had a recognised mental health condition that may well have reflected painful previous memories of detention.
  65. The experience of both law (see Ouseley J's review of the relevant decisions) and medicine (as spelt out in the two reports available here) suggest that people with these conditions or experiences, fail to disclose the true details of their previous treatment. This is particularly the case where the ill-treatment claimed was humiliation in the context of sexual identity as it is too painful and humiliating to do so. It takes careful and painstaking relationship building with competent trusted advisers before all relevant matters come to light.
  66. An important safeguard against inappropriate assignment to the DFT is a sound relationship with competent legal representatives. By September 2015, there was far more information about the claimant's relationship with Karatas than would have been either known or predictable on 25 June 2014. Despite the reservations I have previously expressed about reaching any final conclusions in the absence of waiver of privilege, the material tends to indicate that the firm had not been of much assistance to him in his asylum claim. I propose to give what the claimant has to say about this issue marginal weight for present purposes, even so I observe:-
  67. i) Any competent adviser on an asylum claim would have had to point out the central importance of supporting material on sexual orientation and the need for any claim to be as fully supported evidentially as is reasonable possible. This would be particularly the case where the claimant's previous application was based on a heterosexual marital relationship.

    ii) For Karatas to make a representation against detention in the DFT solely on the basis of a proxy marriage to a Polish wife from whom the claimant is said to have separated a year previously and when any relationship had not pursued as a basis for a claim to remain for a year seems remarkably ill-advised. It both tends to undermine the sexual orientation claim and ignore any consideration of real reasons why DFT may not be suitable for the claimant.

    iii) The 4 July representation wholly misstates the evidential value of the GEAR email. On its face the email merely confirms that in June the claimant received it, but says nothing about the duration of contact with GEAR and the activities undertaken there, that might have been the basis of evidential inquiry.

    iv) The firm not only failed to attend the asylum interview, or make any sensible representations in support of the asylum claim, but they also failed to prepare for the fast track appeal or make any sufficient arrangements for another firm with experience of this procedure to be able to do so.

    v) It may be that Karatas do not undertake legal aid work and there was an absence of ability to pay their fees, but they could and should have advised the claimant of his entitlement to legal aid. Whether they gave such advice cannot be known until there is waiver of privilege. If it turns out that they did not, that in my view would be a very serious professional failing. The subsequent narrative of two different solicitors' firms coming in late and doing little, is consistent with the proposition that the claimant was unaware of eligibility to legal aid despite this being mentioned in the DFT process booklet handed to him at the outset.

  68. The central response of Mr Dunlop to the above, was to suggest that this issue is now academic and both permission and relief should be refused as there is an alternative remedy, namely exercising the right of appeal generated by the 25 September decision.
  69. I accept, of course, that judicial review is a remedy of the last and not first resort, and that relief is inappropriate if the defect can be cured is the appeal process itself. I recognise that immigration appeals enable the FtT judge to substitute his or her views of the merits of a decision in respect of which there is a right of appeal for that of the Secretary of State. In doing so, so errors of approach can be corrected. I further accept that the case of Devaseelan dealing with the approach to previous findings of credibility where a new human rights appeal had followed an earlier negative immigration or asylum one, is not an inflexible template binding in all circumstances. The whole thrust of the decision, however, is to draw a critical distinction between a previous decision that has been quashed as legally flawed and a further appeal that should take the factual findings in the first appeal as the foundation and starting point of the second. The point emphasised is that the second appeal cannot be deployed as a collateral appeal against the decision made in the first (see paragraphs 29 and 37 to 39).
  70. Mr Dunlop drew attention to Ouseley J's second judgment in Detention Action declining to quash all decisions merely because they had been processed in the DFT. In my view, he obtains no assistance from that decision at all. What was being said was the fact that the claim was processed in the DFT did not of itself mean that the outcome was unfair: there would have to be individualised evidence of a specific effect. For reasons I have already given, in my view the evidence of Dr Cohen and Ms Robertson amply provides such individualised evidence. It is unfair to detain people in a DFT process where they are or may well be vulnerable as a victims of severe ill-treatment based on sexual orientation and unable or unwilling to make intimate disclosures to a complete stranger in an expedited time scale and then dismiss the claim on the basis that no or no relevant and evidentially supported disclosures have been made.
  71. In asylum cases only the highest standards of fairness will do. It has long recognised that the Secretary of State's reasons for rejecting a claim are a combination of evidence, expertise and legal reasoning that sets the issues for the appeal. In my judgment, on the facts established from 11 November 2014 onwards, Ms Harrison was entitled to rely on the observations of Sedley LJ giving the leading judgment in the case of R (Refugee Legal Centre) v Home Secretary [2004] EWCA Civ 1481 [2005] 1 WLR 2219 at [15] dismissing a similar submission to that advanced here in the context of a generic challenge to the fairness of the DFT:
  72. "First of all, an applicant is entitled not only to a fair appeal but to a fair initial hearing and a fair minded decision. Secondly, the consequences of the risk which most concerns the RLC may very well not be susceptible of appeal. If the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances, so that it obtains omissions and inconsistencies when compared with what the applicant later tells the adjudicator, the damage may not be curable".
  73. I asked Mr Dunlop whether he accepted that, if it should have been plain on 25 June 2014 that the claimant was not suitable for processing in the DFT, the resultant decision should be quashed and a fresh one made. He indicated that he did not and that an appeal was still a sufficient remedy. I reject that submission. The whole thrust of the relevant case law from 2004 to 2015 has been that the DFT can only be used to process asylum claims in simple suitable cases where the Secretary of State can be satisfied that the process can operate fairly and effectively in the particular case. Where it is, or should have been, apparent that the case is not suitable for one reason or another, then it is highly likely that there is material unfairness that requires the process to start again untainted by a jaundiced view based on an unfair and inappropriate process.
  74. It is for this reason, I apprehend, that the Secretary of State was willing to quash the asylum decisions that were made in the DFT process when it was subsequently agreed that there were sufficient indicators that the claimants were unsuitable for the process (see decisions noted at [28] (v) to (vii) above). These were not mere tactical concessions, but carefully considered decisions, approved by the court and taken, I was informed, at the highest level within the Home Office. A flavour of this is the fact that the litigation led to a ministerial statement in Parliament suspending the DFT.
  75. Although I am not bound to give similar relief, in my judgment, it is necessary in the interests of justice to do so, where there is either agreement or clear evidence to indicate that a particular asylum claim should not have been processed in the DFT and disadvantage has been caused to the applicant and the assessment of credibility by reason of the circumstances in which the claim was originally determined.
  76. I have rejected the claimant's first line of attack, that it should have been clear on 25 June that his claim was not suitable for the DFT, but I have accepted the second basis of attack that by November 2014 and September 2015 it should have been clear that DFT was not suitable for the assessment of this claim and disadvantage had been caused to the claimant by it having been so processed, whatever the eventual assessment of his credibility turned out to be.
  77. In my judgment, in the light of the evidence of the claimant's potential vulnerability and unsuitability for DFT processing, there is individualised evidence of unfairness that requires relief setting aside the original decision. This is not relief that can be granted in the appeal where the FtT judge is concerned with agreeing or disagreeing with the decision. Here a fresh decision needs to be made giving appropriate weight to the medical evidence identifying that this was not a claim that should have been determined in the DFT and as a result there is plausible case that non-disclosure may have been the consequence of the cumulative issues noted above. A negative decision taken on this basis will properly address the relevant issues and set the appropriate context for any subsequent appeal. The decision of 8 July did not and neither did the decisions of 11 November and 25 September 2015. This last decision was still based on the initial assessment of 8 July, the FtT judge's assessment in agreement with that decision on 1 August, and wholly ignores the important contribution of Dr Cohen's evidence as it had been air-brushed out of the assessment by the flawed decision of 11 November.
  78. Issue 3: Legality of Detention and entitlement to damages

    Assignment to the DFT

  79. I now turn to the issue of detention. Mr Dunlop says that the whole issue should be transferred to the county court for determination. I disagree. This is not a simple case of detention without any lawful authority. Since the case of WL Congo v SSHD [2011] UKSC 12 [2012] 1 AC 24, it is clear that there is a close nexus between public law principles. Such issues should be decided in the Administrative Court if disputed, although once the duration of any unlawful detention has been ascertained, the question of damages can be assigned there.
  80. It is apparent that I have rejected the first submission that as of the 25 June the claimant should never have been placed in the DFT at all. In my view the decision to place him there was a legitimate application of policy in the light of all the facts about the claim that were known to the Secretary of State or should reasonably have been known at that stage. None of the subsequent information that emerged was either reasonably foreseeable or the product of procedural failures at the screening interview.
  81. I do not accept that the changed evidential picture by 25 September, renders any previous period of detention unlawful. A challenge to the decision to detain is based primarily on the assessment of the information available to the decision maker at the material time: see R (OM) v SSHD [2011] EWCA Civ 919. It may be that in cases of procedural failure to inquire into relevant factors, that a decision could also be challenged on what should have been known had the procedures been properly applied. In my judgment, the defendant was entitled to conclude that the claimant met the criteria for inclusion in the DFT and none of the criteria for exclusion existed at the time. There were no failures to make appropriate inquiries on 25 June and on what was available it was reasonable to conclude that this was a case that could be decided speedily and if asylum failed the claimant could be removed speedily thereafter using his passport.
  82. Impact of absence of rule 34 examination

  83. The claimant's second submission is that there was a material procedural failure shortly after arrival at the detention centre when a nurse conducted a screening interview. No significant health related issues were reported and there is nothing in the documentation generated by that process to suggest that the claimant suffered from a mental or physical condition that made detention inappropriate or was anxious to show his scars to a doctor to receive a medical opinion as to how they were occasioned.
  84. There have been conflicting judicial decisions on whether a screening assessment by a nurse was a medical investigation by a qualified professional as required by the Detention Centre Rules 2001 rule 34 (1) that provides:
  85. "Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner) within 24 hours of his admission to the detention centre".

    However, I accept that the most recent authority on the issue is that of Mr Justice Haddon-Cave in R (ota DK) v SSHD [2014] EWHC 3257 (Admin) who concluded that it was not at [187] to [191]. In doing so he followed the decision of Burnett J in R (EO) v SSHD (noted above) rather than the judge's only previous conclusion to the contrary. I agree that a nurse is not a medical practitioner within the meaning of the rules.

  86. The absence of such an examination therefore meant that there was a lost opportunity for the claimant to have disclosed symptoms indicative of a stress disorder or other mental illness, or for a thorough physical examination for indications of prior ill treatment to have been made by such a practitioner. I further recognise that a rule 34 examination and a rule 35 report have been recognised to be important parts of the safeguards to ensure that evidence of potential vulnerability comes to light that may require the applicant to be removed from the DFT process. However, I consider that this procedural mishap did not render the detention of the claimant unlawful.
  87. First, it was not a mishap about whether the claimant should be detained or continue to be detained or the criteria for assessing such an issue. The decision to detain had been made shortly before on the relevant published criteria.
  88. Second, although the nurse was not a medical practitioner she was a health professional, who works with such practitioners and conducted her own examination. The claimant was weighed, blood pressure and pulse recorded and a medical history recorded using a pro-forma document. The questions asked included whether the claimant had experienced previous serious illness, serious injury, mental health problems or thoughts of self-harm and suicide. None of these answers revealed any issue that needed investigation and there was a space for the nurse to record her own assessment of physical appearance and psychological state. This was an opportunity for the claimant to have raised any issues that might have led to a more detailed examination by a doctor. He must have been aware that one of the purposes of the screen was to assess whether he was fit for detention.
  89. Third, there is significant evidence to suggest that he would not have used the opportunity of an examination by a medical practitioner to raise any issue of previous ill-treatment or poor psychological state of health. Significantly, the screening form suggests that he answered 'no' in response to the question 'have you been the victim of torture?' Although the claimant has recently made a statement to the effect that he has no recollection of this and other matters in the process, I see no reason to reject the accuracy of the record on this issue. Further, apart from some reports of disturbed sleep, until 22 September 2014, the claimant never reported to health care staff at the centre significant symptoms suggesting a diagnosis of post-traumatic stress disorder or other mental illness. Thus even if there had been any other flaw in the decision to detain it would have resulted in compensatory damages.
  90. Finally the claimant in a witness statement made in connection with these proceedings does state that he deliberately did not disclose the significant issue of what he says occurred to him in December 2006 to any of his lawyers or any health professional at the IRC as he had not established trusted and confidential relations with them at this time.
  91. Overall, I consider that the absence of an examination by a medical practitioner had no impact on the legality of the detention and did not cause his detention to be maintained on a false medical basis. For similar reasons, I do not consider that the decision to detain was flawed by any failure to notify the claimant of a possibility of making a reference to the Foundations for medical assessment, as indicated in the defendant's policy.
  92. Detention after 8 July

  93. The third submission advanced by the claimant concerns the legality of the detention from the period after 8 July 2014. It is now clear from the subsequent decision of the Court of Appeal in Detention Action (see above [28] iii) delivered over three months after the onset of this period) that the policy of detention in the DFT should be construed as meaning that it only applied to enable the claimant to be available for interview up to the initial decision and thereafter continued detention had to be justified under the general detention criteria set out in Chapter 55 of the Enforcement Instructions and Guidance.
  94. Paragraph 55.3 of the EIG has the heading 'Decision to detain (excluding fast track and criminal casework cases)'. The claimant was not facing deportation for criminal conduct and in the light of the Court of Appeal decision, it must now be considered that from 8 July he was no longer a fast track case. Accordingly the following passages of the EIG apply:
  95. '1. There is a presumption in favour of temporary admission or temporary release- there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified'
    '2. All reasonable alternatives to detention must be considered before detention is authorised '
  96. Mr Dunlop recognises that the claimant's detention was maintained from 8 July under the wrong policy and the wrong criteria. It is, therefore, common ground that in these circumstances the decision to continue to detain was flawed. The claimant seeks compensatory rather than nominal damages resulting from these periods of unlawful detention.
  97. The test to be applied where the claimant seeks damages for detention that is unlawful by reason of the application of the wrong policy is whether it can be shown that claimant would have been lawfully detained. There are references in WL Congo to a higher threshold (see at [90], [211] and [253]) Having considered these in OM v SSHD (above) Lord Justice Richards said:
  98. It seems to me that on normal compensatory principles it would be for a claimant to prove his loss on the balance of probabilities. It well may be that in circumstances such as these the burden shifts to the defendant to prove that the claimant would and could have been detained if the power of detention had been exercised lawfully, but again I see no reason why the standard of proof should be anything other than the balance of probabilities.
  99. It seems to me that on first principles that where it is accepted that the decision to detain was unlawful it is for the detaining authority to justify the detention and show that detention would have followed.
  100. Mr Dunlop submits that if Chapter 55 had been applied the claimant would have been detained in any event because of the imminence of removal and the risk of absconding. He points out that the detention reviews of 23 July, 20 August and 18 September all state that 'there is reason to believe that you will fail to comply with any conditions attached to the grant of temporary admission or release'.
  101. On the 23 July this conclusion was said to be based on:
  102. i) Previous failure to comply with conditions of stay.
    ii) Insufficient close ties to make it likely that the claimant will stay in one place.
  103. On the later occasions two other reasons were added:
  104. i) Failure to comply with immigration laws by overstaying limited leave
    ii) Previous failure to leave the United Kingdom when required to.
  105. I am not satisfied that it has been shown that detention would have followed and there was no reasonable possibility of temporary release:-
  106. i) The claimant had never failed to comply with conditions of temporary admission or release. He had failed to attend his marriage interview but said that he had had no notice of this. This did not result in enforcement action.

    ii) He had overstayed his limited leave in 2007 but had not been issued with a decision requiring him to leave, and overstay of leave is a common feature of asylum and human rights claims and would not generally be sufficient to rebut the presumption of liberty.

    iii) The policy requires strong grounds to exist and none of the detention reviews either consider or identify such grounds. The claimant voluntarily presented himself to the Home Office on 17 June; he returned as requested on 25 June and he had provided an address where he could live during the process and a contact phone number.

    iv) The earlier detention reviews on 9 and 16 July had more realistically focused on the fact that he does not meet the DFT exclusion criteria and continued detention was appropriate to progress the asylum claim through the appeal process. There was no reference to risk of absconding. It seems to me that it was these considerations that drove the decision to continue to detain and they have turned out to be wrong.

    Detention when removal was imminent

  107. In my view, the position is different in the period from 27 August to 11 November. The claimant had now exhausted his appeal rights and removal was imminent. Directions had been issued for removal in 7 days and there was no obstacle to removal such as the need to obtain a travel document. Chapter 55.1.1 and 55.3.1 of the general instructions recognise that detention is legitimate in the case of single men with no dependants to effect removal. The problem with the preceding period of detention was that the Court of Appeal had subsequently found that the policy under which the detention was authorised was insufficiently clear to meet the requirements of transparency set out in the general law. If the policy had been more clearly expressed, I can see no reason why someone assessed as suitable for fast track processing should not have been kept in detention pending an appeal, leaving the question of exclusion from the Fast Track to the judge vested with the appeal. In my view, the difficulty as to lack of transparency does not exist for the sub period under consideration here. Detention to effect removal of a claim that had been considered to be suitable for the fast track and had no complicating features was clearly authorised by the policy and was in accordance with law. There were clear criteria for detention that was applied to this period. On what the defendant would have known about the claimant I am satisfied that once an appeal had been finally determined the claimant would have been required to report and detained with a view to removal shortly thereafter. A draft of this judgement stating this conclusion was supplied to the parties and resulted in further written submissions being made by them. I have considered the claimant's submissions but am not persuaded that my conclusion was not open to me on the all the information available. In particular, I can draw no inference that if the claimant had been released pending appeal he would have obtained representation from Wilsons, put in a quality medical report or other information about his claim that would have led to deferral of removal. His conduct before and during the appeal period is relevant to this assessment as is the fact that he only encountered Wilsons and changed his legal representation and eventually the nature of his claim because he was in detention.
  108. Dr Ali's report

  109. The next submission made is that if he had been otherwise lawfully detained with a view to removal in September 2014, he should have been released following Dr Ali's rule 35 report on 25 September because this was independent evidence of torture.
  110. I do not accept that this report should have required the claimant's release. In my judgment, the imminence of the intended removal, the fact that the claim had been processed and the appeal dismissed before the report was obtained and the contents of the report did not require release.
  111. i) It only provided limited medical support for the allegations of ill treatment. The scars to the lips and hands had already been noted and rejected as insufficient evidence of ill treatment in the decision and appeal. The report did not require this issue to be revisited. I observe that later Dr Cohen was to report that these scars were too general in nature to be supportive of the account as to how they were caused.

    ii) Dr Ali found no evidence of candle wax burns to the penis or anus, although he did note the presence of wax in at least one location on the rear of the leg and possibly other areas on the front. I consider that was very limited evidence and of course he was not purporting to apply Istanbul Protocol criteria for his summary observations. The reference to anal bleeding was a record of what the claimant was telling him rather than a clinical observation that was limited to haemorrhoids.

    iii) I accept that if Dr Ali's report had been made at the outset of the process it should have led to further inquiries and possibly independent medical evidence, but for reasons I have already given I do not accept that the claimant would have made such a disclosure in an GP examination on 25 June or thereafter. The disclosure was only made to Dr Ali because of the involvement of Wilsons and the disclosure subsequently made to them.

    iv) A further serious reason why I am satisfied that Dr Ali's report would not have led to release was that it had nothing to say about why this allegation had not been made earlier. There was at that stage no explanation from the claimant why at this late stage he had made a significantly different claim.

    v) In the circumstances the claimant's account as recorded in the report could reasonably have been viewed as an attempt to frustrate removal after the asylum process had been concluded.

    Detention from 11 November

  112. I finally turn to the last period of disputed detention, namely from the 11 November and the defendant's response to Dr Cohen's report. Following the decision that the report did not amount to a reason to change the asylum decision or constitute a fresh claim, on 17 November the claimant's submissions on temporary release on the basis of the report were rejected. The letter states:
  113. i) The claimant met none of the criteria for exclusion from the DFT (these included the existence of independent medical evidence supporting the claim of torture).
    ii) The late claim for asylum given the period of his overstaying supports the conclusion that the claimant had a complete lack of regard for the immigration laws and leads to the consideration that he will not abide by restrictions on release.
  114. Mr Dunlop accepts that Dr Cohen's report is indeed independent evidence of torture and the relevant guidance would require release from detention in such circumstances unless there are very exceptional circumstances. He bravely submitted that the reference to non-compliance constituted such exceptional circumstances.
  115. Valiant as the submission is, I consider it to be completely hopeless. Both the rejection of the report as material fresh evidence and the decision to maintain detention are inherently flawed by the failure to recognise that it did constitute independent evidence supportive of the account of torture. That has two consequences, a rational decision maker could no longer have concluded that removal was now imminent and there was an issue requiring further consideration. Further, detention could not continue as there was the clearest evidence of the exclusion criteria being made out. I have already explained why I do not consider that a rational decision maker could have concluded that there were strong reasons to believe the claimant would abscond existed (although in fairness no one had purported to do so). A fortiori, the result would be the same if anyone had considered the question whether exceptional circumstances might exist. The claimant was not a risk to the safety of others (see for example R (Das) v SSHD [2014] 1 WLR 3538 at [79].
  116. I recognise that on 17 September he had not cooperated with removal that might form a basis of an assessment of risk of absconding (although there is nothing to suggest that it did). However, the reason for the non-cooperation was fear of harm on return. I note that the President of Gambia's threat towards failed asylum seekers does not seem to have been specifically addressed, but more significantly the delay in removal enabled the claimant to obtain the report of Dr Cohen that suggested that there was a real issue to be considered as to whether despite his previous failure to mention it the claimant might indeed have been subjected to brutal treatment in detention in December 2006.
  117. For these reasons I consider the detention after 11 November not merely to be unlawful but the defendant's unlawful response to the report caused the unlawful prolongation of the detention until he was released on bail on 18 December. I recognise that this decision conflicts with that of DHCJ Ockelton who refused permission on 22 January 2015. I have had the benefit of much fuller argument and consideration of the authorities, and the advantage of the subsequent report of Ms Robertson confirming the psychological findings of Dr Cohen.
  118. Conclusions and Consequences

  119. For the reasons I have given under Issue 2 above, the defendant should make a fresh assessment of credibility setting aside the previous decisions of 8 July 11 November and 25 September and give careful consideration to the supporting medical evidence as to why a person with the features recorded on the claimant and in the absence of relationship of trust with a competent legal adviser the claimant might not have made the disclosures that he subsequently did.
  120. Although such a decision should be made without reference to the 8 July decision or the FtT judges' decision of 1 August, Ms Harrison accepts that there is no reason in this case why regard should not be had to the record of both the screening and the asylum interview. It is apparent that the claimant did not mention anything about the December 2006 detention and torture in June and July, and the question will be whether there is a reasonable degree of likelihood that such a failure occurred because he was a vulnerable person with painful memories for whom detention was inappropriate and may have operated to deter disclosure
  121. If the fresh decision remains adverse then the new reasons given for it, without any reference to the judge's decision of 1 August, will be the starting point for the FtT judge's deliberations.
  122. I have found the claimant's detention to be unlawful between 9 July and 27 August and between 11 November and 18 December. I was not satisfied that if the right criteria had been considered the claimant would have been detained in any event. The claimant is entitled to compensatory damages for each period of detention. Such damages can be referred to the county court for assessment if not agreed.
  123. In December 2015, the grounds of claim were amended to include a challenge to the DFT part of the 2005 AIT Procedure Rules. I understand that a decision on this issue will not be forthcoming until after February 2017. In my judgment, this relief is now academic as far as this claimant is concerned. It should not be a reason to delay a fresh decision from the defendant and if it arises the pursuit of a fresh appeal before the FtT judge.
  124. I expect that on receipt of the draft of this judgment the parties will be able to agree the orders and consequential matters arising, but if not they will need to make succinct submissions in writing or orally before or at the date when this judgment is handed down.

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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1345.html