Medical Justice & Ors v Secretary of State for the Home Department & Anor, Court of Appeal - Administrative Court, October 10, 2017, [2017] EWHC 2461 (Admin)

Issuing Organization:Administrative Court
Actores:Medical Justice & Ors v Secretary of State for the Home Department & Anor
Resolution Date:October 10, 2017
 
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Case Numbers: CO/5386/2016, CO/5262/2016,

CO/5630/2016, CO/5533/2016, CO/5529/2016, CO/5535/2016,

CO/5534/2016, CO/5532/2016; CO/4853/2016

Neutral Citation Number: [2017] EWHC 2461 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10/10/2017

Before:

THE HONOURABLE MR. JUSTICE OUSELEY

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Between:

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Ms Stephanie Harrison QC and Ms Shu Shin Luh (instructed by Bhatt Murphy) for the 1st - 3rd Claimants

Mr Christopher Buttler and Ms Ayesha Christie (instructed by Duncan Lewis) for the 4th - 8th Claimants

Ms Nathalie Lieven QC and Ms Sarah Hannett (instructed by the solicitor to the EHRC) for the Intervener

Mr James Strachan QC and Mr Rory Dunlop (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 7-10 March 2017

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JudgmentMr Justice Ouseley:

Introduction

  1. At the heart of these judicial review claims is the contention that the Secretary of State, SSHD, has issued unlawful statutory Guidance, and policies, albeit for the lawful purpose of preventing those who are more vulnerable to harm in immigration detention from entering immigration detention, or for removing them from it, unless there are sufficiently strong countervailing reasons. Being a victim of torture is an indicator of such vulnerability. The unlawfulness is said to arise from the way in which victims of torture are defined, through the adoption, with a variation, of the definition of ``torture'' to be found in the United Nations Convention against Torture, UNCAT. This had the effect, it was said, of excluding those who are victims of torture by non-state actors, from those whose circumstances indicate vulnerability to harm in detention. The SSHD's response is essentially that the statutory Guidance and policies have been misunderstood. But there are many other issues to be considered along the way.

  2. The statutory Guidance at issue is the ``Adults at Risk in Immigration Detention'', AARSG, issued under s59 of the Immigration Act 2016, after it had been laid before Parliament on 22 August 2016, and approved under the negative resolution procedure. This Guidance came into force from 12 September 2016, in accordance with the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016 SI No. 847.

  3. The two policies at issue are (1) the Detention Services Order, DSO 9/2016, in effect from 12 September 2016, dealing with the Detention Centre Rules 2001 SI No. 238, DCR, made under s153 of the Immigration and Asylum Act 1999 for the regulation and management of removal centres; R35 of the DCR relates to medical reports on those who are in detention; and (2) Chapter 55b of the Enforcement Instructions and Guidance, EIG 55b, which provides, for Home Office staff including case workers, Guidance entitled ``Adults at risk in immigration detention''. As the title suggest, it relates to the new AARSG. It was published on 9 September 2016, for implementation from 12 September 2016.

  4. Three broad issues were raised by the Claimants: (1) the definition of ``torture'' used in the AARSG was unlawfully restrictive, was contrary to the definition of ``torture'' in the Detention Centre Rules and R35 in particular, and had no rational justification in relation to the identification of those particularly vulnerable to harm in immigration detention; (2) the EIG 55b caseworker guidance was inconsistent with the AARSG which took precedence over it; and (3) the public sector equality duty in s149 of the Equality Act 2010 had not been complied with (I permitted the Equality and Human Rights Commission, EHRC, to intervene on this issue).

  5. The claims of the individual lead Claimants for damages for unlawful detention were considered because of what they illustrated for the general issue. I am also asked to decide whether their detention was in pursuit of an unlawful policy or alternatively was inconsistent with the SSHD's published policy. But in the light of the concessions by the SSHD that the decisions in relation to their detention had all been unlawful for one reason or another, issues as to whether they would have been detained anyway pursuant to a lawful decision, and thus whether they were entitled to substantial or nominal damages, were adjourned by prior agreement to another hearing. That hearing will also be able to decide whether the basis on which the SSHD conceded that the detention decision was unlawful was correct or whether the Claimants were correct, in so far as that issue still arises.

    The background to the AARSG and policy

  6. It is necessary, to set the scene for the subsequent submissions, to put the Guidance and policy on immigration detention in their proper context. A person may be placed in immigration detention while a claim for asylum or protection, or some other basis for remaining in the UK, is being considered and appealed; and it may arise pending removal of those whose claims have been dismissed. This case is not primarily concerned with the question of the impact which detention may have on the fairness of the resolution of claims while detained, nor with the length of detention while removal is attempted or effected. There may be an interrelationship with those issues, but the focus is on identifying those who should be regarded as particularly vulnerable to harm in immigration detention, and whose detention therefore requires commensurately greater justification.

  7. Schedules 2 and 3 to the Immigration Act 1971 provide the general statutory basis for immigration detention, whether pending examination by an immigration officer, or pending a decision on whether someone should receive leave to enter, or pending a decision to give directions to remove them, or pending removal pursuant to those directions. Other detention powers exist in s62 of the Nationality, Immigration and Asylum Act 2002 and s36 of the Borders Act 2007. In R (WL (Congo)) v SSHD [2011] UKSC 12, [2012] 1 AC 245, also known as Lumba, Lord Dyson JSC said at [34-36]:

    ``34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements.

  8. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay [1985] AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it.

    ...

  9. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision.''

  10. The Court of Appeal in R (Detention Action) v SSHD [2014] EWCA Civ 1634 said at [14] that the latter passage, though formulated in the context of an unpublished policy, emphasised the importance of clarity in a policy governing personal liberty; such policy statements needed to be formulated in a sufficiently defined manner to enable individuals to know the criteria being applied to detain them.

  11. I need to outline the previous policy for determining those who should not normally be placed immigration detention, the role of R35(3) and the definition of ``torture''. The Enforcement Instructions and Guidance Chapter 55.10, which was to be replaced by EIG 55b, stated that ``Certain persons are normally considered suitable for detention in only very exceptional circumstances....'' Eight categories were listed. One was ``Those where there is independent evidence that they have been tortured.'' This was the consistent approach over a number of years, expressed in a number of policy documents including previous Detention Service Orders and the earlier Operating Enforcement Manual. The elderly or those with serious medical or mental health conditions or disabilities ``which cannot be satisfactorily managed within detention,'' were another category. That language was to be changed along with the provisions for women in the earlier stages of pregnancy, as the policy for those normally unsuitable for immigration detention evolved.

  12. The Detention Centre Rules 2001, the DCR, were made pursuant to s153 Immigration and Asylum Act 1999, and were approved by Parliament under the negative resolution procedure. They remain in force. R34 requires every detained person to have a physical and mental examination within 24 hours of admission to the detention centre. R35 provides an important safeguard for those in immigration detention:

    ``35. - Special illnesses and conditions (including torture claims)

    (1). The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

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    (3). The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

    (4). The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.''

  13. The operation of R35(3) was considered in R (D and K) v SSHD [2006] EWCA 980 (Admin), which concerned the lawfulness of the detention in the detained fast track of those who claimed to be the victims of torture. The relationship of R35(3) to the need for ``independent evidence of torture'', in order for detention to require very exceptional circumstances as a matter of Government policy, was at the heart of...

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