SSHD Not Entitled to Continue to Detain After Receiving Rule 35 Report

Ilori, R (On the Application Of) v SSHD [2017] EWHC 3355 (Admin) (21 December 2017)

1. The issue for determination in this case is whether the Defendant acted lawfully in maintaining detention of the Claimant, a Nigerian national, in an Immigration Removal Centre following receipt of a report prepared under Rule 35 of the Detention Centre Rules 2001 (“the Rule 35 report”) after 20 May 2016. He continued to be detailed until 31 January 2017 when he was removed to Nigeria. It is common ground that the Claimant’s initial detention from 22 February 2016 until 19 May 2016 was lawful.
2. It was and is accepted by the Defendant that the Rule 35 report dated 18 May 2016 to which she first responded on 20 May 2016 constituted independent evidence of injury possibly attributable to torture.
3. The question is therefore whether “very exceptional circumstances” existed which justified maintaining the Claimant’s detention following receipt of that report as required by the Defendant’s policy set out in Chapter 55.10 of the Enforcement Instructions and Guidance (“EIG”).
4. My conclusion, based on the evidence in this case, is that the Defendant was not entitled to continue to detain the Claimant beyond 20 May 2016. This is because:
5. i)The Defendant’s response dated 20 May 2016, notwithstanding her acceptance that the Rule 35 report constituted independent evidence of injury possibly attributable to torture, went on to apply a definition of torture (attribution to a random act of violence by non-state actors) that she now accepts was not valid within the meaning of her policy, in order to justify continued detention. As a result, she failed to consider whether “very exceptional circumstances” existed which justified the Claimant’s continued detention.
6. ii)Whilst the Defendant’s further responses to the Rule 35 report dated 5 July 2016 and 4 August 2016 did consider and conclude that “very exceptional circumstances” existed for justifying continued detention, she relied on an alleged “high risk of absconding” in circumstances where the factors relied on did not support the alleged level of risk and where, in any event, it was irrational to conclude that the circumstances relied on to justify continued detention were very exceptional as opposed to routine.
7. In relation to the Defendant’s alternative case that, had she acted differently and taken account of all the circumstances she now contends were relevant, the Claimant’s detention would have been maintained in any event and that he has therefore suffered no loss, I am unable to conclude that the Defendant has discharged her burden of proof in this regard. Whilst I accept that there may be different judgments made as to whether circumstances are “very exceptional” and that this is a judgment for the Defendant as the decision-maker, in my view, none of the factors relied on, individually or cumulatively, are capable of constituting “very exceptional circumstances” within the Defendant’s policy for the reasons set out in detail below. Accordingly, I reject the Defendant’s contention that the Claimant is entitled to only nominal damages and find the Claimant is entitled to compensatory damages in relation to his continued detention after 20 May 2016 and until his removal.

88. Accordingly, I reject the Defendant’s contention that the Claimant is entitled to only nominal damages and find the Claimant is entitled to compensatory damages for the period from 20 May 2016 until his removal.

89. Although Mr Noor belatedly raised a claim for exemplary damages, this was not included in the original claim in respect of which partial permission was given, was not the subject of an application for permission to amend the claim and was not argued orally at the hearing. In any event, it appears to me to be an argument for a remedy which is unsustainable on the facts of this case. The Defendant’s conduct, whilst unlawful, does not reach, or even approach, the high threshold of oppressive, arbitrary and unconstitutional conduct which would be required for an award of exemplary damages (which are punitive in nature) to arise for consideration: see Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122.
90. The claim will now be transferred to the Queen’s Bench Division for the assessment of the compensatory damages to which the Claimant is entitled

Published on Bailii, 21/12/2017, http://www.bailii.org/ew/cases/EWHC/Admin/2017/3355.html