United Kingdom - KB v Secretary of State for the Home Department, High Court of Justice, 13 July 2018

Country of Decision:
Country of Applicant:
Date of Decision:
13-07-2018
Citation:
KB v SSHD [2018], EWHC 1767 (Admin)
Court Name:
High Court of Justice Queen’s Bench Division (Administrative Court)
Keywords:
National / Other Legislative Provisions:
UK - Nationality and Immigration and Asylum Act 2002 s62(1)
UK - Detention Centre Rules 2001 Rule 34 and 35
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Headnote: 

According to UK detention rules, a detainee must be examined by a doctor within 24 hours of being detained in order to ascertain if they are a potential victim of torture.  

Facts: 

The claimant arrived in the UK in January 2018 on a student visa which ran out in June 2014.

He was arrested in January 2016 and taken to an Immigration Removal Centre (IRC) where he was served with removal directions. He underwent an initial health screening upon arrival at the IRC but the records of this could not be traced.

A week later the claimant was moved to a second IRC, here he underwent an initial health screening by a mental health nurse. The notes do not contain anything on the nurse asking the claimant if he was a victim of torture or if he was he was refusing his consent to see a doctor for a medical examination.

A day later the claimant underwent an asylum screening interview during which he indicated that he had been tortured by the Sri Lankan authorities. 

Three days later he sought an assessment and appointment with a doctor in order to establish that he was a potential victim of torture and therefore not fit for detention under UK detention rules.

Almost three weeks later the claimant was seen by a doctor who produced a report which expressed his opinion that the claimant may have been a victim of torture in Sri Lanka.

Four days later the claimant was released from detention on the basis of this report.

Decision & Reasoning: 

The Court first set out that, under UK law, people who are suffering from serious medical conditions which cannot be satisfactorily managed within detention and those where there is independent evidence that they have been tortured are considered unsuitable for detention.

In order to ensure that such people are not detained, under UK detention guidelines, a new detainee must be examined by a doctor within 24 hours of being detained.

The Court then found that there was a failure at both detention centres to comply with this requirement. However, the Court goes on to point out that the mere breach of these guidelines does not automatically render the detention unlawful.

Instead the question is: if the medical examinations had been carried out when they should have been would they have led to the claimant’s earlier release?  Only in this case would the claimant be entitled to damages.

In this case the Court ruled that if a sufficient medical examination had been carried out, the Claimant would have been released, indeed this is what happened as soon as he was examined by a doctor. Therefore he was entitled to substantial damages for unlawful detention.

Outcome: 

Damages awarded.

Case Law Cited: 

UK - EO and Others v SSHD [2013] EWHC 1236