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Court of Appeal grants permission to appeal in challenge concerning the lack of safeguards for Immigration Detainees in Prison (1 July 2020)

Date: 01/07/2020
Duncan Lewis, Main Solicitors, Court of Appeal grants permission to appeal in challenge concerning the lack of safeguards for Immigration Detainees in Prison

The Court of Appeal has granted our clients permission to appeal in the case of MR (Pakistan) and AO (Nigeria) v SSJ and SSHD [2019] EWHC 3567 (Admin).

Immigration detainees held within immigration removal centres (IRCs) have access to important safeguards to limit the detention of vulnerable individuals. This includes Rule 34 (which mandates all individuals entering the detention estate to have a full medical examination within 24 hours) and Rule 35 (which requires doctors to report to the SSHD cases where an individual claims to be a victim of torture, have suicidal ideations or whose health is likely to be affected by detention, so that their suitability for detention can be reviewed accordingly). There are no such equivalent safeguards for those detained under immigration powers in prison.

In a judgment handed down on 20 December 2019, Mr Justice Supperstone dismissed the Claimants’ claim for judicial review, largely on the basis that medical issues and vulnerabilities for those detained under immigration powers in prison are usually already known to the SSHD, due to the time that the individual is likely to have spent in prison serving their custodial offences.

In considering the Claimants’ appeal, the Court of Appeal has granted permission on the following grounds:

a. The fact that detainees’ medical information is already held by the prison estate is no answer to the critical question as to whether a detainee is a (potential) victim of torture because the Prison Rules do not prompt the question. There is nothing in the Prison Rules that compels the provision of any medical information held by the Prison Service to decision makers considering continued detention.

b. Where such critical information has not reached the decision maker, it cannot be fair, and offends public law duties (Secretary of State for Education and Science v Tameside MBC [1977] AC 1014).

c. The Judge had erred in his approach to the test laid down in R (Detention Action) v First Tier Tribunal (Immigration and Asylum Chamber) and others [2015] 1 WLR 5341 (endorsed by the Court of Appeal in R (Howard League for Penal Reform) v Lord Chancellor [2017] 4 WLR 92) [98 – 99], holding that the Claimants “had not provided evidence about the “full run of cases [that go through the system]”. The Claimants had adduced witness evidence that plainly met the test required in Detention Action and Howard League.

d. The Judge failed to apply the test required by Howard League [52] to be met by the Defendants, as conceded by the Lord Chancellor in that case: “in a systemic unfairness case it was incumbent on her to supply evidence of the system”.

e. The Judge’s disposal of the general discrimination claim pursuant to Article 14 ECHR and Equality Act 2010 duties [104] failed to engage or engage fully with the five questions set out in R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196 at [42]. In particular, there was no evidence adduced by the Defendant as to justification and/or the Judge failed to explain how the Defendant met that test in reaching his conclusion.

The Claimants are represented by Toufique Hossain, Sulaiha Ali, Philip Armitage at Duncan Lewis and counsel Hugh Southey QC of Matrix Chambers and Raza Halim of Garden Court Chambers.

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