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Court of Appeal finds SSHD acted unlawfully in failing to obtain medical evidence regarding the torture claims of individuals detained under immigration powers in prison (14 April 2021)

Date: 14/04/2021
Duncan Lewis, Main Solicitors, Court of Appeal finds SSHD acted unlawfully in failing to obtain medical evidence regarding the torture claims of individuals detained under immigration powers in prison

The Court of Appeal has today unanimously found that it was irrational for the Secretary of State for the Home Department (‘SSHD’) to not have obtained medical information about the torture claims of two vulnerable immigration detainees who were detained under immigration powers in prison.

Whilst the Court has unfortunately dismissed our clients’ wider arguments regarding the systemic unfairness of the current scheme governing the detention of vulnerable individuals in prison, their false imprisonment and their discrimination claims, this is an important decision which highlights the legal responsibilities of the SSHD when detaining vulnerable individuals within the prison estate.


The Detention Centre Rules 2001 require that individuals held in Immigration Removal Centres (IRCs) must be medically assessed by a GP within 24 hours (Rule 34) and that medical reports must be sent to the SSHD if there are concerns that a detainee’s health is likely to be injuriously affected by detention (Rule 35(1)), they are a suicide risk (Rule 35(2)) or that they are a victim of torture (Rule 35(3)). The vast majority of Rule 35 reports concern victims of torture. This leads to an automatic review of detention by the SSHD where an individual will be assessed as an Adult at Risk at several levels. Level one is self-declaration, level two is where there is medical evidence that a person is an Adult at Risk, and level three is where there is medical evidence that an individual’s health is being injuriously affected by detention. It is the SSHD’s policy to limit the detention of Adults at Risk and the more serious the risk level, the shorter a period of detention is permitted. Rule 35 reports are often relied upon by the SSHD as evidence of those who claim to be victims of torture and a report will assess their injuries (plus comment on the impact of detention).

Whilst the Adults at Risk policy applies for those detained in prison, there is no equivalent Rule 34 or Rule 35 process. This is particularly concerning when Home Office statistics suggest that the use of detention in prison has increased in the last year, despite there being dramatic reductions in the numbers of those detained in IRCs. As of 31 December 2020, there were 910 people detained in IRCs (a reduction of 44% from 1,637 people in December 2019) but 519 people detained in prison (an increase of 45% from 359 people in December 2019).


In allowing the Appellants’ appeal in part, Lord Justice Dingemans held that the approach of the SSHD in relation to our clients, AO and MR, was unlawful on the following basis:

  • It was irrational (and therefore unlawful) for the SSHD to not have obtained medical information regarding MR and AO’s past torture at the start, and throughout, their immigration detention in prison [para 111];

  • This irrationality comes from the SSHD’s legal requirement to issue guidance about the detention of those who are particularly vulnerable and the SSHD’s stated policy to limit the detention of vulnerable individuals [para 111];

  • There are ‘many good and varied reasons’ why victims of torture may not volunteer that they have been victims of torture and ‘it is known that past torture makes immigration detainees vulnerable’ [para 111];

  • In relation to MR and AO, there was a ‘failure in the system’ in prisons which meant that no-one was required to find out about medical concerns regarding torture, no attempts were made to find out about such information and concerns about MR and AO were not discovered at the start of their detention [para 112];

  • It was also irrational that the SSHD specifically commented on the absence of a Rule 35 report for MR and AO in detention reviews when neither appellant had the opportunity to obtain such a report or an equivalent [para 112]; and

  • It was irrational and unlawful for the SSHD to have a policy which required information about vulnerability of both MR and AO because of medical concerns about their past torture’ but that she failed to obtain this in both of the Appellant’s cases [para 115].

The Court had also noted that during the course of this litigation, the SSHD had confirmed that she is now in the process of devising a system to provide immigration detainees in prison with the equivalent benefits of Rule 35 protections.

In light of the above findings, we are extremely disappointed that the Court went on to dismiss other important aspects of the Appellants arguments; in particular, that there was no systemic unfairness for immigration detainees in prison in general, that MR and AO were not falsely imprisoned (as they were already viewed as Level 2 Adults at Risk) and that there was no unlawful discrimination under Article 14 ECHR or indirect discrimination. The Appellants are currently considering an application for permission to appeal to the Supreme Court.

Notwithstanding the above, this judgment makes clear that the current approach of the SSHD in detaining individuals under immigration powers in prison with no mechanism for identifying (and subsequently reviewing the detention of) vulnerable individuals, especially victims of torture, may give rise to unlawfulness.

Legal Representation/ Reaction to Judgment

‘The mass detention of vulnerable individuals within the prison estate, under immigration powers, has long been an over-looked scandal. This decision shines a light on the particular problems this causes for victims of torture in prison, who the SSHD’s own policy says are vulnerable to detention. We have ended up in a situation where Home Office detention reviews are relying on the absence of medical evidence to justify detention, despite the fact that it is the Home Secretary’s legal responsibility to obtain such evidence. Whilst there are aspects of this decision which are disappointing and which we are considering appealing, this is undoubtedly a step forward for the protection of vulnerable immigration detainees in the prison estate.’

MR and AO were represented in this appeal by Duncan Lewis’ Public Law team, who instructed Hugh Southey QC of Matrix Chambers and Raza Halim of Garden Court Chambers. The Duncan Lewis legal team are Toufique Hossain (director), Sulaiha Ali, Philip Armitage (solicitors) and Danial Sadullah (caseworker).

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