This case is an unlawful detention claim based on shocking failures by the Home Office to comply with rules on how victims of torture and trafficking should be treated. In R (SW) v Secretary of State for the Home Department [2018] EWHC 2684 (Admin), the High Court has ruled that SW was unlawfully detained for a month, giving two reasons:

1. the failure to carry out a proper medical assessment within 24 hours of her arrival in detention, and
2. an Immigration Officer’s irrational decision to refuse to make a trafficking referral

Fortunately, after being released SW was cared for by the Salvation Army, who made a trafficking referral without delay. A third ground of unlawful detention based on the failure to give SW proper notice that her leave had been curtailed was unsuccessful, but that should not detract from an extremely positive result overall.

Delayed medical examination found claimant unsuitable for detention

SW, who is from Namibia, was found working in breach of the conditions attached to her visitor visa on 19 September 2017. She was served with a notice of removal and detained on the same day.

The Home Office did not arrange for a medical assessment to be carried out by a GP within 24 hours of her arrival in detention, which is required by Rule 34 of the Detention Centre Rules. On 27 September 2017 SW claimed asylum and informed the Home Office that she had been subject to domestic servitude in Namibia. She even asked the Home Office explicitly to be referred to the National Referral Mechanism as a potential victim of trafficking, but the Immigration Officer did not believe her claim and refused to make the referral. After almost a month of detention she finally had a proper medical examination on 10 October 2017, which led the GP to issue a Rule 35 Report highlighting his concerns:

Dr Mahmood produced a Rule 35 report in which he stated that the Claimant had given him an account of a history of domestic servitude in Namibia. The Claimant had informed him that she had been taken away from her family as a small child and forced to work for another family, whose members routinely beat and verbally abused her, and whose male members raped her and forced her to have sex with other men. The Claimant informed the doctor that she had travelled to the UK to escape the treatment that she had endured… Dr Mahmood noted that the Claimant had several scars on her right arm.

Dr Mahmood’s assessment stated that the Claimant’s story was coherent and that she had been able to answer any questions to fill in missing blanks. Dr Mahmood said that the Claimant had stated that her detention reminded her of being forcefully held like she was in Namibia. He concluded that that, given the extent of the Claimant’s torture, she was not fit for detention and was certainly at risk of worsening should her detention continue.

The Home Office reacted by releasing SW from detention on 13 October 2017.

Seeing a doctor not necessarily enough to satisfy Rule 34

John Cavanagh QC, sitting as a deputy High Court judge, took a dim view of the Home Secretary’s failure to comply with Rule 34 and ruled that it rendered detention unlawful. He noted that an informal appointment with a GP was not enough to meet the requirements of the rules:

It is true that she had been seen by a doctor on 24 September, but in my judgment this did not count as a Rule 34 examination. As EO makes clear, the reason that a Rule 34 examination matters for the purposes of the lawfulness of immigration detention is that the examination is a ‘stepping stone’ to a Rule 35 report. In other words, the Rule 34 examination is an opportunity for the detainee to be seen by a doctor who can identify if there are any reasons why the doctor should issue a Rule 35 report which might, in turn, lead to the detainee’s immediate release.

In the present case, Dr Oozeerally did not examine the Claimant on 24 September with a view to considering whether he should issue a Rule 35 report. The purpose of his meeting with the Claimant was much more limited. Although, in the vast majority of cases, no doubt, a consultation between a detainee and a doctor will be sufficient for Rule 34 purposes, this is one of the rare cases in which a meeting with a doctor was not sufficient for Rule 34.

That was by itself sufficient for SW’s unlawful detention claim to succeed. The judge went on to explain that even if the Home Office had complied with Rule 34, detention would still have been unlawful due to the irrational refusal to make a trafficking referral:

it is clear, in my view, that it will only be in a very rare case that it would be appropriate for a First Responder to decline to make a referral where an allegation of trafficking is made. In the present case, the First Responder took a range of wholly irrelevant considerations into account and reached a conclusion which was, on the available facts, irrational.

Separately, the judge refused an argument for SW that her detention had been unlawful because she had not been given notice of the decision that her leave to remain had been curtailed. The judge found that she had not been given proper notice of the decision, but ruled that this did not mean there was no power to detain her because there were reasonable grounds to suspect that a decision to remove her would be made, which is all that is required by Schedule 2 of the Immigration Act 1971.

It is regrettable that the judge did not make any comment about the length of time for which a person with leave to remain might reasonably be detained pending a curtailment decision. The straightforward nature of curtailment decisions means that they should be issued very quickly, which then gives the detainee a chance to challenge the decision and show that they should not be detained.

The judge also made some helpful comments about whether unlawful detention claims should remain in the Administrative Court even after the detainee has been released. The general rule is that such claims should be transferred to the County Court or the Queen’s Bench Division. John Cavanagh QC held he had jurisdiction to hear this claim because SW sought a declaration as well as damages and that it was appropriate to do so since the Government Legal Department did not object and there were no significant factual issues to resolve.

Harsh decision on costs for legal aid lawyers

This judgment is an excellent example of the High Court taking a strict line against the Home Secretary on how his officials treat victims of torture and victims of trafficking. The judge carefully considered the requirements of Rule 34 and the range of relevant considerations to be taken into account when deciding to make a trafficking referral and found the treatment of SW to be unlawful on both issues.

Unfortunately for SW’s legal team, the judge was also strict when it came to making an order for interim payment of costs. Her lawyers did not present the Government Legal Department with a costs schedule and the judge decided that, without knowing the total amount claimed, he should not make an interim order for 50% of costs to be paid. It can take years to recover costs from the Home Office so that is a significant problem, albeit in the context of very successful case overall.

It also feels like is a harsh decision because her lawyers could not have known that they would be entitled to costs at inter partes rates until the hearing. The implication from the judge’s decision is that legal aid firms should prepare inter partes costs schedules before the hearing, just in case they win.