UK - High Court, 25 July 2008, MT, R (on the application of) v Secretary of State for the Home Department & Ors [2008] EWHC 1788

Facts:

The applicant was detained the day after she claimed asylum on the basis of her support for the Union for Democracy and Social Progress (UDPS). She was admitted to a fast–track process on the basis that her application could be decided quickly.

The decision was taken with the knowledge that the applicant suffered from diabetes. Two days after her detention the applicant and her representatives informed those in authority that she had been beaten and raped. Seven days later she was released from detention after  the Medical Foundation for the Victims of Torture accepted a referral and agreed to write a medico-legal report.  The report, when completed, recorded scars consistent with the applicant’s account.

The management of the detention centre was contracted out to a private company by the Secretary of State and the medical services were proviced by another private company under a contract with the managing company.  Ten months after her arrival, the applicant was recognised as a refugee.  Her clalm in the High Court was that she had been unlawfully detained initially and  that even if her initial detention had been lawful, it became unlawful when the sub contractor, who supplied medical services in the detention centre failed to provide the medical examination as required by law. The Secretary of State, the management company and the company providing medical services were the defendants in the case.

Decision & reasoning:

The court identified two questions of principle to be decided. First was there a duty on the State to enquire, specifically about previous torture, before detaining the applicant? Second was the state responsible for the actions or inactions of third parties providing contracted out services?

Having reveiwed domestic authority the court concluded that in the specific case of detention for speedy determination of asylum applications there was no statutory duty to make enquiries nor did procedural fairness require the State to make enquiries about torture during the screening process. The initial decision to detain was lawful.

The court identified a number of breaches of the Detention Centre Rules relating to the provision and timing of a medical examination and the failure of the medical staff to notify the management of the rape and beating.  The question then became whether the Secretary of State for the Home Department was liable.

The court distinguished the failure to provide a medical examination within the statutory time limit from the failure of the medical staff to complete the Allegation of Torture Forms. The former failure could be said to be instigated , authorised or ratified by the Secretary of State but the ‘mistake’ of not notifying the management of the allegation of rape and beating could not.

The court held that the failure to provide a medical examination, for which the Secretary of State was liable was not causative of the applicants continued detention. Reference was made to the terms of the Istanbul Protocol and the use of ‘consistent’ rather than ‘highly consistent’.

Outcome:

The initial detention was lawful, there was no duty to enquire. The failure to follow the detention rules, in relation to the provision of a medical examination, for which the Secretary of State for the Home Department was liable, had not caused the continuing detention which remained lawful. The claim aginst the Secretary of State for unlawful detention failed.

Observations/comments:

This case follows the UK case of HK (Turkey) and affirms the general principles therein, but the reasoning is more complete.  

Other sources:

UN Office of the High Commissioner for Human Rights, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Istanbul Protocol"), 2004, HR/P/PT/8/Rev.1.

Craig Administrative Law  5th Ed. (2003) ch 13.