In this case the High Court handed down a ruling finding that the segregation of the claimant at Yarl’s Wood Immigration Removal Centre (IRC) was unlawful and in breach of Article 8 of the European Convention of Human Rights (ECHR).
On 27 July 2017 the High Court handed down judgment in the case of Muasa v SSHD (CO/6378/2016), in relation to the Claimant’s challenge to her removal from association (segregation) at Yarl’s Wood Immigration Removal Centre (IRC) in August 2016 under the Home Office’s powers granted under Rule 40 of the Detention Centre Rules.
Rule 40 allows the Home Office (or in cases of urgency, the IRC manager) to segregate a detainee from the rest of the detention centre population where it appears necessary in the interests of safety or security. Authorisation is required both upon the initial segregation and again to continue beyond 24 hours. Under Rule 40 of the Detention Centre Rules this additional authorisation must be sanctioned by the Secretary of State and is of the utmost importance given that it allows IRC’s to hold detainees in segregation for up to a further 14 days.
The Claimant, a Kenyan national, is an asylum-seeker who was due to be removed from the UK despite there being independent evidence that she was a victim of torture following a childhood of abuse in Kenya. She was segregated over the 1st-2nd August 2016 for a period of approximately 28 hours in ‘preparation’ for her removal from UK. The Home Office justified this decision on the basis of a previous attempt to remove her on 5 May 2016 when the Claimant refused to leave the IRC as she had an outstanding application for leave to remain. The Home Office deemed her to be non-compliant and disruptive. On 19th May 2016 the Home Office attempted to remove the Claimant again, with which she was fully compliant, however the removal did not go ahead as she claimed asylum on the way to the airport. This was apparently not considered relevant to the decision to segregate in August.
The Claimant issued judicial review proceedings in November 2016 to challenge her removal from association on the basis that:
- The Home Office had failed to provide a clear and transparent policy/framework as to how Home Office caseworkers and IRC detention managers should exercise the discretionary power to remove from association;
- The common-law requirements of procedural fairness require that those removed from association should have a reasonable opportunity to make representations against their segregation before it is authorised beyond 24 hours. This would be in line with the approach in the prison context;
- Both the Claimant’s initial segregation and the decision to segregate her beyond 24 hours were unlawful because they were not properly authorised under Rule 40;
- The decision to segregate the Claimant, on the facts of her case, was irrational in all the circumstances; and
- The Claimant’s segregation was in breach of Article 8 ECHR in that it interfered with her physical and psychological integrity, was not in accordance with the law, and was not a proportionate interference.
The case was heard before Holman J on 21 and 24 July 2017, just days after the Home Office released a last-minute policy document on the use of Rule 40. (https://www.gov.uk/government/publications/removal-from-association-and-temporary-confinement
Judgment was handed down by Holman J on 27 July 2017. The Judge made the following findings:
- He dismissed the Claimant’s argument that a “policy” was required in relation to the use of Rule 40. He found that the test of necessity incorporated into the rules was clear. He did, however, agree that “guidance” was needed as to its practical application. He noted the Home Office’s publication of guidance on Rule 40 in the week of the hearing but refrained from commenting on its adequacy or lawfulness.
- He was satisfied that the initial 24 hours of segregation was properly authorised, but he could not find any evidence that segregation beyond 24 hours was authorised. He thus found segregation beyond 24 hours to be unlawful.
- He declined to adjudicate on the right to a reasonable opportunity to make representations on the basis that it was only relevant to the period beyond 24 hours, which he had already found to be unlawful.
- He declined to make a finding of irrationality on the basis he did not have enough evidence from the Home Office as to why a decision was taken to remove the Claimant from association. He did, however, raise concerns in relation to the standard of the written reasons provided to the Claimant on the Rule 40 notice, which appeared to apply a lower test than necessity.
- Critically, he made a declaration that segregation beyond 24 hours was also unlawful under Article 8 ECHR. He found that removal from association in the immigration detention context engaged Article 8 in that it interfered with the Claimant’s psychological integrity and personal autonomy. An analogy was drawn with segregation in mental health hospitals and in the prison context. He went on to find that Article 8(2) was breached beyond the 24 hour period as segregation unauthorised as so was not “in accordance with the law”.
At this early stage, the Claimant is still considering her options in relation to the court’s findings on the policy concerns and its finding that the initial 24 hours of segregation was lawfully authorised.
However, both the Claimant and Duncan Lewis welcome the court’s decision that her unauthorised segregation beyond 24 hours was unlawful and in breach of Article 8 ECHR. This is the first time the court has been asked to adjudicate on the lawfulness of segregation in the immigration detention context and thus is the first time a finding of breach of Article 8 has been made. Medical Justice
estimate that between 1200 and 4800 immigration detainees are segregated each year, which reflects the sheer scope of this power. It is hoped that at the very least this judgment will ensure that the Home Office are forced into ensuring greater oversight and safeguards in the use of removal from association.
The Claimant was represented by Lewis Kett
, a Solicitor in Duncan Lewis' Public Law
department, with Hugh Southey QC and Eleanor Mitchell of Matrix Chambers acting as Counsel.
Lewis Kett is a Solicitor in the Public Law team. He regularly deals with challenging unlawful decisions of the UK government, with a particular interest in refugee law and immigration detention. In April 2016, he was the first trainee solicitor to be named the Times ‘Lawyer of the Week’ for his work in obtaining refugee status for a former Afghan interpreter who the UK had attempted to remove to Afghanistan.
Duncan Lewis Public Law Solicitors
The Duncan Lewis Public Law department continues to be recommended by Legal 500. It has been previously recommended for its depth of experience in immigration and civil liberties challenges and is acknowledged as having a "stellar reputation in handling test cases". Duncan Lewis has been applauded for its specialism in judicial review and Court of Appeal Cases. Duncan Lewis have experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court. Duncan Lewis carry out both publicly and privately funded work.