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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HK (Turkey) v Secretary of State for the Home Department  EWCA Civ 1357 (19 December 2007)
Cite as:  EWCA Civ 1357
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COPURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
MR JUSTICE MANN
| HK TURKEY
|- and -
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Jenni Richards (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 26th November 2007
Crown Copyright ©
Lord Justice Latham:
"Mr brother was killed in 1996 by an illegal organisation. They threatened to kill me because I made a complaint to the authorities."
"(Q) What do you mean that they tortured "me"?
I have proof on my body.
(Q) Have you any health problems?
Yes… my legs … they swell and get painful …. And I have frequent nightmares.
(Q) Have you medical evidence to prove about your legs?
In Turkey I visited a doctor but I do not have a report with me.
(Q) "My legs swell" Is it both legs?
No….. my right leg upper thigh. I also have hot iron marks on my shoulder."
"Subject claims to suffer swollen legs and nightmares but is not currently taking medication"
He was then taken to Oakington where he arrived at about 3 a.m. He asked to see a doctor because he was unwell. But on the screening questionnaire he indicated that his health problem was not urgent. The Reception Report recorded that he had no obvious injury, illness or visible marks.
"Any case which does not appear to be one in which a decision can be reached.
Any case which has complicating factors or issues which are unlikely to be resolved within the constraints of the Oakington process model."
"Oakington Reception Centre will strengthen our ability to deal quickly with Asylum applications, many of which prove to be unfounded. In addition to the existing detention criteria, applicants would be detained at Oakington when it appears that their application could be decided quickly, including those that made a certified manifestly unfounded. Oakington will consider applications from adults and families with children, for whom separate accommodation has been provided, but not from unaccompanied minors. Detention will initially be for a period of about seven days to enable applicants to be interviewed and an initial decision to be made. Legal advice will be available on site.
If the claim cannot be decided in that period, the applicant will be granted temporary admission, or if necessary in line with existing criteria, moved to another place of detention……"
"A key element in the Government's strategy to speed up the processing of asylum claims has been the introduction of the fast track asylum process operated initially at the Oakington Reception Centre and now also at Harmondsworth Removal Centre and other locations. The use of detention to fast track suitable claims under these processes is necessary to achieve the objective of delivering decisions quickly. This ensures, among other things, that those whose claims can be decided quickly can be removed as quickly as possible in the event that the claim is unsuccessful…… When deciding whom to accept into fast track processes account is taken of any particular individual circumstances known to us which might make the claim particularly complex or unlikely to be resolved in the timescales however flexibly arrived…."
"We made it clear in our 1998 White Paper, Fairer Faster and Firmer, that evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release when deciding whether to detain while an individual's asylum claim is being considered. That remains the case.
The instructions to staff authorising detention are clear on that. Independent evidence that a person has a history of torture is one of the factors that must be taken into account when deciding whether to detain and would normally render the person unsuitable for detention other than in exceptional circumstances. Such evidence may emerge only after the detention has been authorised. That may be one of the circumstances referred to by the noble Lord Hylton. If that happens, the evidence will be considered to see whether it is appropriate for detention to continue.
We reinforced that in the Detention Centre Rules 2001. Rule 35(3) specifically applies for the medical practitioner at the removal centre to report on the case of any detained person who he is concerned may have been a victim of torture. There are systems in place to ensure that such information is passed to those responsible for deciding whether to maintain detention and to those responsible for the considering the individual's asylum application.
However, unfortunately, there cannot be a blanket and total exclusion for anyone who claims that they have been tortured. There may be cases in which it would be appropriate to detain somebody who has a history of torture. For example, the person concerned might be a persistent absconder who is being returned to a third country. It might be necessary to detain such a person to effect removal. There will be yet other cases in which the particular circumstances the person justified such an action. There will be other cases in which we do not accept that the person concerned has been a victim of torture. Despite that, I repeat my earlier comments about the importance of seeking to interpret these cases with the utmost care and not lightly using the exceptions to which I have referred."
"38.3 Factors influencing a decision to detain:
1. There is a presumption in favour of temporary admission or temporary release.
3. All reasonable alternatives to detention must be considered before detention is authorised.
4. Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
5. Each case must be considered on its individual merits.
6. The following factors must be taken into account when considering the need for initial or continued detention.
Has the subject a history of torture?
"10. The thinking behind Oakington was as follows. There was to be a centre at which asylum applications could be decided quickly, within about seven days. In order to achieve that objective for significant numbers of Applicants, an intensive consideration and decision process was required. In particular it was considered essential that Applicants should be available for an early interview and to submit any further representations that may be judged necessary. It was also considered important that they should be readily available to be served. The Home Office's experience is that many applicants, particularly those likely to be unfounded, are unwilling to comply with fast-track asylum procedures. In the Government's view, the aim of considering and deciding asylum claims within about seven days for substantial numbers of applicants were best achieved by requiring Applicants to reside at Oakington under the exisiting immigration powers……"
I have explained what the basis for detention at Oakington is. The question is whether it appears to Immigration Officers that the Asylum application can be decided quickly. In other words the speed with which a decision can be taken is the primary consideration in assessing cases for Oakington…..
32. I turn now to describe the process which is designed for application in Oakington cases to screen those cases which are suitable for Oakington. As I said in IL GN 17/OC (April 2000):
"The screening process is of paramount importance in determining the success of the Oakington Project and to ensure that we weed out unsuitable or complicated cases at the outset.
"Decision to transfer to Oakington
80. Mr Rabinder Singh's first submission on behalf of D and K was that the decision to transfer D and K to Oakington was in each case unlawful as being contrary to published policy, the case of K he says it was also irrational.
81. In support of his argument on this aspect of the case, Mr Rabinder Singh relied heavily on a sentence culled from the speech of Lord Diplock in Secretary of State for Education and Science –v- Tameside MBC  AC 1014 where, in a case having facts very different to the present, Lord Diplock said: "Or, put more compendiously, the question for the courts is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly? Mr Rabinder Singh also emphasised "the paramount importance" which, according to the statement of Mr Martin cited in the Saadi case, was to be ascribed to the initial screening stage.
82. Mr Rabinder Singh further submitted that the question of detention where there was independent evidence of torture and the question of whether or not the case is too complicated for the fast track proceedings are not necessarily the same and should not be elided. I agree with that: although that is clearly the potentiality for overlap in some cases.
83. However, I have come to the conclusion, on the facts of these particular cases, that the initial decision to send each of D and K to Oakington under the fast track procedure was a proper and lawful one.
84. It is true that there is a presumption in favour of release. It is also true that cases with complicating factors would generally not be thought suitable for the Oakington fast track procedure. But it is also to be born in mind that, as is conceded, the making of an allegation of torture does not of itself mean that it is a case unsuitable for the fast track process.
86. The case of K, I would accept, is rather different. Here K was alleging torture in the initial screening interview. Mr Rabinder Singh says that at least in this case, the Home Office was on notice that his claim was not straight forward and needed more investigation; and so was not suitable for fast tracking.
85. I do not agree. It is true that K was claiming to have been tortured. But, as is conceded, the claim of torture was not in itself enough to prevent fast tracking, even though in his case the claim seemed to have prompted further questions in interview. In susbstance Mr Rabinder Singh's submission that the case of K was too complex to be suitable for the fast track procedure really derives from the allegations of torture: nothing else. But in the light of the concession, it cannot be said that the allegation of torture ipso facto made the claim too complex or otherwise unsuitable for fast tracking. Further, there was at that time no clear medical presentation or other evidence, so far as K – who had himself said that he had not seen a doctor for 6 or 7 years – was concerned, to indicate that the fast track procedure was inappropriate. Moreover, Immigration Officers could legitimately, in my view, in a case where torture is alleged bear in mind that if such claim is maintained, and an examination becomes desirable, then such should in any event be provided within 24 hours under rule 34: an approach in line with Lord Filkin's statement. It seems to me that the Claimant's submissions here required altogether too great a degree of pro-activity at the initial screening stage, with a view to assessing whether the fast track procedure may be appropriate, than was practicable or requisite."
"40. Detention of a person is a major interference with personal liberty, and must always be subject to close scrutiny. Where individuals are lawfully at large in a country, the authorities may only detain if – as the court expressed the position in Vasileva –(referred to above) - a "reasonable balance" is struck between the requirements of society and the individual's freedom. The position regarding potential immigrants, whether they are applying for asylum or not, is different to the extent that, until the application for immigration clearance/and/or asylum has been dealt with, they are not "authorised" to be on the territory. Subject, as always, to the rule against arbitrariness, the court accepts that the state has a broader discretion to decide whether to detain potential immigrants than is the case for other interferences with the right to liberty. Accordingly, and this finding does no more than apply to the first limb of Article 5 paragraph 1(f) to the ruling the Court has already made as regards the second limb of the provision, there is no requirement in Article 5 paragraph 1(f) that the detention of a person to prevent his effecting an unauthorised entry into the country be reasonably considered necessary, for example to prevent his committing an offence or fleeing. All that is required is that the detention should be a genuine part of the process to determine whether the individual should be granted immigration clearance and/or seek asylum, and that it should not otherwise be arbitrary on account of its length.
45. It is plain that in the present case the applicant's detention at Oakington was a bona fide application of the policy on "fast track" immigration decision. As to the question of arbitrariness the Court notes that the applicant was released once his asylum claim had been refused, leave to enter the United Kingdom had been refused, and he had submitted a notice of appeal. The detention lasted for 7 days, which the court finds not to be excessive in the circumstances. The court is not required to set a maximum period of permitted detention, although it notes that the present form of detention is ordered on administrative authority alone."
Jacob LJ: I agree.
Mann J: I also agree