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R (on the application of MR) v (1) Secretary of State for Justice and (2) Secretary of State for the Home Department (24 July 2018)

Date: 24/07/2018
Duncan Lewis, Main Solicitors, R (on the application of MR) v (1) Secretary of State for Justice and (2) Secretary of State for the Home Department

The Public Law team at Duncan Lewis have issued Judicial Review proceedings on behalf of the Claimant who was held under immigration powers in prison.

This case raises a point of wide importance: potentially vulnerable immigration detainees detained in the prison estate are not afforded the same safeguards that would lead to their identification and release as are made available to those detained in Immigration Removal Centres ‘IRCs’.

There is a lacuna in the scheme governing the detention of vulnerable persons (inter alia victims of torture or those suffering from mental ill-health) detained under immigration legislation within the prison estate, as compared to the scheme that governs the detention of those in IRCs.

We submit to the High Court that:

  • There is inherent unfairness/unreasonableness in the failure to put in place an equivalent mechanism to Rules 34 and 35 of the Detention Centre Rules 2001 in the case of immigration detainees held in prison.

  • It is unlawful discrimination in breach of article 14 of the European Convention on Human Rights.

  • It is an unlawful breach of the Equality Act 2010.

For immigration detainees held in IRC’s, Rules 34 and 35 of the 2001 Rules provide a mechanism intended to identify those who are not suitable for detention (for example victims of torture and those who are mentally unwell) through prompt physical and mental examination. This enables the medical staff to report any persons whose health is likely to be injuriously affected by continued detention to the Secretary of State for the Home Department ‘SSHD’, who, within two working days, is required to assess whether continued detention remains appropriate.

Critically, the Detention Centre Rules do not apply to immigration detainees held in the prison estate. The detention of those held in the prison estate is instead governed by the Prison Rules 1999, Prison Service Instructions and Prison Service Orders, which provide no equivalent to the safeguards provided for by the Immigration Act 1999, the 2001 Detention Centre Rules, the Detention Service Orders and other published policy guidance.

The significance of this lacuna is highlighted by the terms of the statutory guidance which limits the use of detention in the case of vulnerable detainees. The SSHD’s policy document entitled ‘Adults at risk in immigration detention’ succinctly state that:

‘[T]he purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention’.

Given that those working in the prison estate are accountable to the Secretary of State for Justice ‘SSJ’ and not the SSHD, there is no obligation on medical staff to report torture or health concerns to the SSHD, who is directly responsible for the individual’s detention. The effect of this is that those who would be deemed unsuitable for detention owing to their history of torture and/or deteriorating mental/physical health often languish in detention for excessive periods of time since the SSHD is unaware of their vulnerabilities.

This was illustrative in the Claimant’s case, as his repeated disclosure of torture to medical staff in prison was not investigated or reported to the SSHD who was authorising and managing his detention.

The potential implications of this challenge are significant given that it affects the current detention of a significant number of people. Home Office statistics show that, at the end of March 2018, 358 immigration detainees were held in the prison estate. It is deeply concerning that despite these numbers and the recommendation made by Stephen Shaw in his 2016 report ’Review into the Welfare in Detention of Vulnerable Persons’, the Defendants’ have failed to put an equivalent Rule 34/35 process in place for those detained within the prison estate.

Hugh Southey QC of Matrix Chambers and Raza Halim of Garden Court Chambers are instructed by Toufique Hossain, Sulaiha Ali and Philip Armitage of DL’s Harrow Public Law team.

Duncan Lewis Public Law Solicitors

Our 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". The Legal 500 2017 edition applauds Duncan Lewis for its specialism in judicial review and Court of Appeal Cases. The team is well established and known by the Legal Aid Agency, the Courts, and the Treasury Solicitor. In addition to challenging the legality of the government’s policy on detaining pregnant women, the firm brought a high-profile judicial review on behalf of six individuals in MJ & Ors v SSHD & Anor which challenged the Secretary of State for the Home Department’s use of a definition of torture that was derived from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for the government’s policy on detaining adults at risk. The challenge was successful and the definition of torture was ruled unlawful.

Duncan Lewis' Public Law team specialise in all immigration judicial review matters and costs litigation; Unlawful immigration detention cases with high net claims for damages; prison law claimants; immigration removal cases. We carry out both publicly and privately funded work.

To speak to our established team of public law solicitors, call 033 3772 0409.

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