On 20 December 2019, Mr Justice Supperstone dismissed our clients’ judicial review claims challenging the absence of equivalent safeguards to Rules 34 and 35 of the Detention Centre Rules for immigration detainees held within the prison estate.
The principal issue in this claim is whether the scheme governing the detention of immigration detainees held in the prison estate is unlawful. This is due to the fact that it fails to provide an equivalent protection to that contained in Rules 34 and 35 of the Detention Centre Rules 2001, which are part of the scheme that applies in Immigration Removal Centres, governing the detention of immigration detainees.
We represented both lead claimants, MR and AO. MR is a Pakistani national born on 17 February 1982. He claims to have been the victim of ill treatment by a "notorious gang" in Pakistan and a victim of torture. He has made an asylum claim which remains outstanding.
AO was born in Nigeria on 1 November 1989. He claims to have been ill treated by members of Boko Haram in Nigeria and to be a victim of torture. He too made an asylum claim. That claim was dismissed on 29 March 2017. On 27 March 2019 his appeal against that decision was dismissed by the First-tier Tribunal. On 9 May 2019 he was refused permission to appeal by the First-tier Tribunal, and on 19 June 2019 he was refused permission to appeal by the Upper Tribunal.
We continue to be of the view that the absence of these critical safeguards in prison is unlawful and will be seeking permission to appeal this decision to the Court of Appeal.
MR and AO were the lead claimants to a judicial review challenge that argued that there is a lacuna in the scheme governing the detention of vulnerable persons, detained under immigration legislation within the prison estate, when compared with those detained in Immigration Removal Centres (IRCs).
IRC’s are governed primarily by the 2001 Detention Centre Rules. Rules 34 and 35 of the 2001 Rules provide a mechanism intended to identify victims of torture and mentally unwell persons through prompt physical and mental examination of all detainees, and the reporting of detainees with particular vulnerabilities. This is intended to, among other matters, facilitate the release of detainees in appropriate circumstances.
Whilst Rule 21(1) of the Prison Rules 1999 (which governs the detention of immigration detainees held in the prison estate), provide for doctors to report to the SSJ on any prisoner whose health is likely to be injuriously affected by imprisonment, there are no equivalent safeguards within the prison rules that require doctors to report to the SSHD (responsible for immigration detention) on any prisoner suspected to have suicidal ideations or who may have been a victim of torture.
It was argued by the claimants that the absence of equivalent safeguards in the Prison Rules was unlawful for the following reasons:
- There is inherent unfairness/unreasonableness in the failure to put in place an equivalent mechanism to Rules 34 and 35 in the case of immigration detainees held in prison.
- That this amounts to unlawful discrimination in breach of article 14 of the European Convention on Human Rights; and
- It is an unlawful breach of the Equality Act 2010.
In addition to this challenge, AO
had a discreet unlawful detention claim challenging his detention on Hardial Singh
grounds, on the basis that he was kept in detention after having obtained a rule 35 report, when briefly transferred to an IRC. Additionally, he also had an asylum appeal pending meaning that he could not be removed within a reasonable timeframe. He also argued that his detention was unlawful on the basis that the defendants had unreasonably delayed in finding him Approved Premises accommodation, after the First-tier Tribunal had granted him immigration bail.
The parties came before Mr Justice Supperstone for a two-day hearing on 25 and 26 June 2018, and owing to further post-hearing pleadings and evidence relating to AO’s
individual claim, a further one-day hearing was listed and heard on 22 November 2019.
Mr Justice Supperstone handed down a judgement this month in which he dismissed all of the claimants’ grounds of challenge. He agreed with the defendants in distinguishing between individuals entering immigration detention in IRCs and those who enter immigration detention in prisons, on the basis that relevant medical information is likely to be known by the SSHD, from information sharing during their criminal sentence. This was despite the claimants evidence that the defendants were not aware of, in particular, that both claimants’ were victims of torture. Mr Justice Supperstone also agreed that these individuals were more likely to have their detention justified, notwithstanding their vulnerabilities, due to their criminality.
We are very disappointed by the judgment and maintain that there are strong legal arguments that the absence of safeguards in prison is unlawful. We will be pursuing an appeal to the Court of Appeal.
comments on the judgment:
“This is a bitterly disappointing judgment for all vulnerable detainees in prison. We continue to argue that safeguards for vulnerable detainees should apply irrespective of the location where they are detained. In particular, we stress the importance of Rule 34 and 35 of the Detention Centre Rules 2001, in that it leads to an automatic review of detention by the SSHD. As the claimants’ cases demonstrate, vulnerable detainees are languishing in prison for months after their criminal sentence concludes but struggle to evidence their vulnerability to decision makers.“
Hugh Southey QC of Matrix Chambers and Raza Halim of Garden Court Chambers, were instructed in this case by Toufique Hossain, Sulaiha Ali,
and Philip Armitage
of the Harrow based Public Law department of Duncan Lewis Solicitors.