Mr (Pakistan) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Dingemans,Lady Justice Elisabeth Laing |
| Judgment Date | 14 April 2021 |
| Neutral Citation | [2021] EWCA Civ 541 |
| Date | 14 April 2021 |
| Docket Number | Case No: C4/2020/0484 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 541
TN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE SUPPERSTONE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: C4/2020/0484
Hugh Southey QC and Raza Halim (instructed by Duncan Lewis) for the Appellants
Robin Tam QC and Julie Anderson (instructed by GLD) for the Respondents
Hearing dates: 9 and 10 March 2021
Approved Judgment
Introduction
This is the hearing of an appeal against the order and judgment of Supperstone J. (“the judge”) dated 20 December 2019 dismissing the claims of MR, a national of Pakistan, and AO, a national of Nigeria, for judicial review against the Secretary of State for the Home Department (“the SSHD”) and the Secretary of State for Justice (“the SSJ”). MR and AO complain of the failure of the SSHD to put in place for immigration detainees held in Her Majesty's Prisons (“HMP's”) under the Prison Rules 1999 a mechanism equivalent to Rules 34 and 35 of the Detention Centre Rules 2001 which govern detention in Immigration Removal Centres (“IRC's”). There were further claims for damages for false imprisonment, for infringement of article 14 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), to which domestic effect was given by the Human Rights Act 1998, and for breach of the Equality Act 2010.
There had been a separate claim against the National Probation Service for what were said to be unreasonable delays in finding immigration bail accommodation for AO. That claim was dismissed by the judge, permission to appeal in respect of that claim was refused, and it therefore forms no part of the issues considered on this appeal.
The issues on the appeal
The appellants say first that the judge was wrong not to find systemic unfairness or unreasonableness in the failure to put in the Prison Rules a mechanism equivalent to Rules 34 and 35 of the Detention Centre Rules. The appellants contend that healthcare providers in HMP's do not inquire whether a detainee is a victim of torture. Under Rules 34 and 35 of the Detention Centre Rules such a question is mandatory. They say that an assessment in HMP's is to determine the health needs of the detainee, and not to provide the SSHD with details of the vulnerability of the person being detained. The appellants rely on the review now being undertaken by the SSHD following the recommendations made in various reports as evidence that the current system is inadequate and unjustifiable.
Secondly, as part of the complaints about unreasonableness, the appellants submit that the judge should have found that it is irrational for the SSHD to adopt a policy which required the provision of information to her about whether immigration detainees were adults at risk because of, among other matters, past torture without putting in place a system such as Rule 35 for obtaining such information at the commencement of and during immigration detention. This was a point which was developed more in oral submissions than it had been in the Skeleton Arguments, although it was confirmed at the hearing that the issue had been sufficiently pleaded before the judge and in the grounds of appeal.
Thirdly the appellants submit that the failure to have an equivalent of Rule 35 of the Detention Centre Rules in the Prison Rules amounted to a breach of the policy of the SSHD to obtain information on vulnerable detainees so that the detention of MR and AO was unlawful and therefore the judge should have awarded, at the least, nominal damages for wrongful detention and substantive damages for wrongful detention unless the SSHD could show that MR and AO would continue to have been detained. MR claims damages for the period from 14 December 2017 to 30 April 2018 and AO claims damages for the period from 13 March 2017 until 10 August 2018.
Fourthly the appellants submit that the judge should have found that there was unlawful discrimination, both under article 14 of the ECHR and under the Equality Act 2010. Finally the appellants submit that the judge should have found that there was a breach of the public sector equality duty under section 149 of the Equality Act 2010.
The respondents submit that the judge was right, for the reasons that he gave, to dismiss these claims. The respondents say that any system, including the system for the management of immigration detention, is capable of improvement but the fact that the SSHD is working to improve the arrangements for immigration detainees in HMP's does not mean that there is any justiciable failing on the part of the respondents. There was no systemic failing in this case because the appellants had not provided sufficient information to show that there was a failure in the system, and there were adequate arrangements to ensure that vulnerabilities of MR and AO were identified.
The respondents submit that there was no breach of policy by the SSHD so as to render the detention of MR and AO unlawful. This was because the appellants' complaint was that the policy should have required Rules 34 and 35 of the Detention Centre Rules to be applied to those detained under immigration powers in HMP's, not that it did apply and had been breached. The respondents submit that in any event sufficient information had been obtained by the SSHD about MR and AO and their detention had been properly maintained even after the allegations of torture had become known and was lawful. It was further submitted that if there had been any unlawful imprisonment only nominal damages should be awarded because the SSHD would have lawfully maintained their immigration detention in any event.
The respondents submit that the judge was right to find that there was no discrimination, either under article 14 of the ECHR or under the Equality Act 2010, because those in immigration detention in HMP's were in a different position from those in immigration detention in IRC's. This was because those in immigration detention in HMP's were likely to have committed offences, and because information about their medical position would have been obtained in the course of their time of imprisonment. The respondents denied any breach of the public sector equality duty.
The issues were refined in the course of oral submissions on both sides and I am very grateful to Mr Southey QC and Mr Tam QC, and their respective legal teams for their helpful written and oral submissions.
It is apparent that the following issues arise on the appeal: (1) whether the judge was wrong in finding that there was not a systemic unfairness in the regime in HMP's for immigration detention because there is no equivalent of Rule 35 of the Detention Centre Rules; (2) whether the judge should have found that it was irrational in the case of MR and AO not to have discovered through an equivalent of Rule 35 of the Detention Centre Rules that they were victims of past torture; (3) whether the judge should have found that AO and MR are entitled to damages for false imprisonment; (4) whether the judge was wrong to reject the claim for an infringement of article 14 of the ECHR; (5) whether the judge was wrong to dismiss the claim for indirect discrimination against AO and MR; and (6) whether the judge was wrong to find that there was no breach of the public sector equality duty.
In addition there are two procedural matters which arise. The appellants seek permission to rely on a report from the Chief Inspector of Borders and Immigration which was published after judgment had been given by the judge as fresh evidence. The report was titled “Annual Inspection of ‘Adults at Risk in Immigration Detention’ for 2018–2019” dated 29 April 2020. It was common ground that the court should consider this report for the purposes of hearing the argument, before making a decision about whether to admit it as fresh evidence on appeal. The Respondents seek to rely on a Respondents' Notice to affirm their position, which was filed out of time. I will address the procedural issues later in the judgment.
Immigration detention and false imprisonment
It is necessary to set out how a person may become the subject of immigration detention. A state has the right to control those who wish to enter or remain in its territory and therefore to set criteria for leave to enter or remain and for the removal of persons who have no right to remain. The SSHD may hold in immigration detention persons who have no right to be in the United Kingdom pursuant to powers conferred by the Immigration Act 1971 and the UK Borders Act 2007. Persons detained pursuant to immigration detention powers may be held in IRC's or HMP's. Persons detained in IRC's are governed by the Detention Centre Rules 2001 (SI No 2001/38), made pursuant to powers conferred by the Immigration and Asylum Act 1999. Persons detained in HMP's are governed by the Prison Rules (SI No 1999/728), made pursuant to powers conferred by the Prison Act 1952.
Persons held in any form of imprisonment, including immigration detention, may bring proceedings for false imprisonment. The tort of false imprisonment “has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it”, see R v Deputy Governor of Parkhurst Prison ex p. Hague [1992] AC 58 at 162D and R(Lumba) v Secretary of State for...
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