UK - Court of Appeal, 19 December 2007, HK (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 1357

Facts:

The applicant, a male Alevi Kurd, was deemed suitable for a detained fast track procedure on the basis of his nationality, ethnicity and the nature of his claim. During his initial screening interview he informed the Home Office officials that he had been tortured and claimed that he was still suffering the sequelae of torture, although he said his health problems were not urgent.  Two days after his detention he was examined by a doctor who noted his claim to have been tortured and noted scars which were consistent with the applicant’s account. He was released from detention having secured an appointment with a specialist medical charity, which the Secretary of State for Home Department accepted was sufficient evidence to show that his case was not suitable for fast track procedure. He sought judicial review of his detention and compensation for unlawful detention.  The judge at first instance found that as a result of the failure to follow correct procedures at the detention centre he had been unlawfully detained for four days, but that his initial detention was lawful.

The applicant appealed to the Court of Appeal submitting that the applicant’s claim to have been tortured supported by the marks on his body should have alerted the Secretary of State to his unsuitability for detention under the fast track procedure. 

Decision & reasoning:

The court found that the initial detention had been legal since the only question the officials needs to ask was whether the applicant’s case fell into the published policy on admission to the fast track procedure. It emphasised that there was no ‘independent’ evidence of torture when the decision to detain was taken and found that there was no obligation for the State to provide a medical examination prior to admission to the procedure. The relevant rules provided for a medical examination to take place within 24 hours of admission to the detention centre.  

Outcome:

Appeal dismissed.

Observations/comments:

On the face of this decision there is little protection for a victim of torture against detention under a fast-track procedure. It would be a rare applicant who can produce independent evidence of torture during initial screening. Although, if the UK rules are followed and the medical examination conducted within 24 hours revealed evidence of torture and the allegation of torture is properly reported, then the applicant should be released.  She would not however, be able to claim damages for any distress caused by that initial decision to detain.

The conclusions of the court in relation to the duty to make inquiries, before detaining were affirmed in MT, R (on the application of ) v Secretary of State for the Home Department & Ors (see separate summary contained within this database).