Have a question?
033 3772 0409

Reported Case

High Court finds the SSHD failed to put in place systems to protect those with HIV detained by her, in breach of her obligations under Article 3 of the ECHR (30 July 2021)

Date: 30/07/2021
Duncan Lewis, Reported Case Solicitors, High Court finds the SSHD failed to put in place systems to protect those with HIV detained by her, in breach of her obligations under Article 3 of the ECHR

This is the first time that a domestic Court found the State to be in breach of its duty to have systems in place to avoid a breach of “inhuman and degrading treatment” (Article 3 ECHR), known as “the systems duty”.

The Court has declared that:

  1. The Secretary of State for the Home Department failed to put in place appropriate legal and administrative systems for protecting those with HIV detained under Immigration Act 1971 powers, in breach of the systems duty under Article 3 ECHR.

  2. The Secretary of State for the Home Department failed to take all reasonable steps to avoid a real and immediate risk of harm to the Claimant by timeously administering HIV medication, in material breach of her operational duty under Article 3 ECHR.



Background

Our client, CSM, is a national of the Democratic Republic of the Congo (“DRC”) who was diagnosed with HIV shortly after arriving in the United Kingdom aged 4. In 2018, CSM was deported back to DRC where he claims that he was detained by the DRC authorities on arrival and subsequently interrogated and tortured.

CSM fled the DRC and returned to the UK, claiming asylum upon arrival. CSM was invited to conduct his screening interview at the Kent Intake Unit (KIU), a short-term holding facility usually used to accommodate newly-arrived refugees for no longer than 24 hours. Authorisation must be sought for longer periods of detention. Upon arrival, CSM was notified that he was to be detained.

The Secretary of State for the Home Department failed to apprehend the critical importance of adhering to the strict regimen for antiretroviral drugs for those with HIV in CSM’s case. As the Court noted, "If he has interruption to his treatment his immune system may become severely depressed and it would place him at risk of severe opportunistic infections and death." Following his detention by the Secretary of State, CSM went without his medication for 4 ½ days.

CSM was also identified and accepted by the Defendant to be a potential victim of torture for whom detention was injurious to his mental health. That should have triggered his release but he was falsely imprisoned for four days owing to unlawful and unexplained delays by the Secretary of State. That was despite having received further evidence demonstrating that CSM was suffering from severe PTSD and was at risk of suicide whilst detained.

CSM relied on valuable evidence and support from the National Aids Trust, the Terrence Higgins Trust, BHIVA [British HIV Association], HIV I-Base and Act Up London.


The Judicial Review

At a hearing on 23rd and 24th July 2021, CSM’s application for judicial review raised the following questions:

i) Was there a systemic flaw in the Defendant’s arrangements for detention of individuals with HIV, in breach of the positive obligation under ECHR Article 3 referred to as the “systems duty”?

ii) In her treatment of the Claimant, did the Defendant breach the positive obligation under Article 3 referred to as the “operational duty”?

iii) Was the Claimant falsely imprisoned by the Defendant?


Judgment

In his judgment, Mr Justice Bourne granted CSM’s application for judicial review, declaring that that there had been breaches of Article 3 ECHR, and that CSM had been unlawfully detained by the Secretary of State and was entitled to compensatory damages.

Mr Justice Bourne held:

i) The events surrounding CSM’s detention demonstrated the lack of a sufficient system to care for individuals with HIV within the detained estate. He noted that immigration officers within the detention estate had inadequate knowledge of how to obtain HIV medication, variously calling 111 and visiting local hospitals in the hope of securing antiretroviral drugs. Immigration officers charged with responsibility for detaining CSM also gave evidence that “this was not urgent”. The Court held that the staff at IRC Harmondsworth did not appreciate the need to administer his medication without delay, and that no specific training has been offered to healthcare or to immigration officers.

ii) That the existing detention policies of the SSHD, such as the Adults at Risk policy, fails to provide specific guidance on dealing with individuals with HIV and failed to prevent the failings in this case.

iii) The existence of guidance produced by BHIVA [with input from the Home Office] demonstrated the existence of a serious problem affecting a significant number of people. If the Home Office believed that the BHIVA guidance was suitable, there was no obstacle to its adoption.

iv) It would not be disproportionate for the SSHD to provide its relevant staff with training and information. The Judge found that staff ‘simply need to know’ that medication must not be missed and how to obtain it.

v) In reliance upon the relevant medical evidence, and by failing to ensure that CSM received his medication at the correct intervals after his detention, it was considered that the SSHD had failed to take reasonable steps to avoid a risk of harm to him.

The consequences of an interruption and the failure to adopt appropriate safeguards were deemed to be sufficiently serious to amount to a material breach of Article 3 ECHR.

vi) CSM was falsely imprisoned by way of the failure of the SSHD to comply with her published policy and respond to his Rule 35 assessment within 48 hours. CSM was ultimately released after the delayed response was provided.


This is a remarkable precedent and marks the first time wherein the systems operated by the Home Office within immigration detention were found to be so flawed as to amount to inhumane and degrading treatment in breach of Article 3 ECHR.

The failures identified by Mr Justice Bourne in his judgment confirm that the SSHD failed to have appropriate regard to the medical needs of detained individuals with HIV, which allowed for potential breaches of Article 3 ECHR under the SSHD’s care.

The conduct of the SSHD in defending these proceedings were deemed to be sufficiently unreasonable to justify an award of indemnity costs to the Claimant from 28 March 2021 until the date of hand-down.

Through the bravery of CSM in bringing this challenge, serious procedural failings have been identified which must lead to appropriate safeguards being introduced to ensure the dignity and safety of immigration detainees with HIV.

The case is a further example of a successful judicial review claim that was brought by publicly funded lawyers. Without these proceedings, it would not have been possible to uncover and identify the unlawful actions by the SSHD towards particular vulnerable detainees.


Public law solicitor for the Claimant, Jamie Bell says:

"This judgment is a stunning indictment on further failings within the immigration detention estate as operated by the Home Office. CSM was falsely imprisoned and subjected to inhumane and degrading treatment by an authority that no idea how to care for individuals with HIV and did not deem it appropriate to follow clear guidance as produced by the British HIV Association that would have allowed them to do so. Even after being confronted with a category of errors in this case, the Home Office continued to insist that their existing policies allowed them to appropriately care for HIV Positive detainees. This judgment definitively demonstrates that this was incorrect.

"By bravely bringing this challenge, CSM has uncovered a system that is not fit to operate or care for vulnerable persons. We look forward to the Home Office noting the criticisms made in this judgment when considering their detention strategy."




Representation

Lead solicitor Jamie Bell, Isabella Kirwan and Samuel Ley from the public law team, instructing Chris Buttler QC of Matrix Chambers and Raza Halim of Garden Court Chambers.

With particular thanks to National Aids Trust for the invaluable support throughout this litigation.




 

Find full details of this case on Bailii’s website here.
Call us now on 033 3772 0409 or click here to send online enquiry.
Duncan Lewis is the trading name of Duncan Lewis (Solicitors) Limited. Registered Office is 143-149 Fenchurch St, London, EC3M 6BL. Company Reg. No. 3718422. VAT Reg. No. 718729013. A list of the company's Directors is displayed at the registered offices address. Authorised and Regulated by the Solicitors Regulation Authority . Offices all across London and in major cities in the UK. ©Duncan Lewis >>Legal Disclaimer, Copyright & Privacy Policy. Duncan Lewis do not accept service by email.