R CSM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWHC 2175 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3345/2019 |
[2021] EWHC 2175 (Admin)
THE HON. Mr Justice Bourne
Case No: CO/3345/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler QC and Raza Halim (instructed by Duncan Lewis) for the Claimant
Zane Malik QC (instructed by Government Legal Department) for the Defendant
Hearing dates: 23–24 June 2021
Approved Judgment
Introduction
The Claimant is a national of the Democratic Republic of Congo (“DRC”) who was held in immigration detention in August 2019.
The Claimant first arrived in the UK in 1996 aged 4. His father was granted refugee status, which led to his being given indefinite leave to remain in the UK from 28 November 2002.
As a child the Claimant contracted HIV. He requires daily antiretroviral medications for life.
In 2013 the Claimant pleaded guilty to charges of attempted robbery and possession of a firearm and ammunition and was sentenced to 7 years and 2 months in prison.
Those convictions led to the Claimant being deported to DRC on 17 October 2017. He claims that on arrival in DRC he was detained, interrogated and tortured. At some point in 2018 he managed to make his way back to the UK. Thereafter he first came to the Defendant's attention on 5 August 2019 when he made an asylum claim based on his ill-treatment in DRC. That claim remains outstanding.
The Claimant attended an asylum screening interview on 8 August 2019, whereupon he was detained from then until 30 August 2019.
By his 7 grounds of judicial review the Claimant alleges that the Defendant (by her officials):
i) infringed his rights under Article 3 of the European Convention on Human Rights (ECHR) by failing to take reasonable steps to provide him with the necessary medication in detention until the evening of 11 August 2019 and by failing to put in place an effective framework for the protection of detainees with HIV;
ii) contrary to the requirements of rule 34 of the Detention Centre Rules 2001 (SI 2001/238), failed to ask the Claimant whether he was a victim of torture and thereby failed to apply the Defendant's Adults at Risk policy (“AARP”) in deciding to keep him in detention;
iii) failed within a reasonable time to produce, and respond to, a report on the Claimant's vulnerability under rule 35 of the Detention Centre Rules 2001 and thereby failed to apply the AARP;
iv) failed to comply with the AARP by addressing evidence that the Claimant was a victim of torture;
v) held the Claimant for two days at a short-term holding facility (“STHF”) and failed to make reports on the risks to his health and the evidence that he was a torture victim, contrary to rules 6, 32 and 33 of the Defendant's STHF Rules;
vi) decided to detain him without addressing his allegations of torture, his vulnerability due to HIV and the lack of a prospect of removing him to DRC within a reasonable time; and
vii) detained him contrary to principles 1, 2 and 3 as stated in R v Governor of Durham Prison ex p Hardial Singh [1984] 1 All ER 983.
These grounds gave rise to a number of disputes of fact. With the agreement of the parties, the Court has taken the unusual step in a judicial review of hearing oral evidence from three of the Defendant's witnesses and the Claimant himself.
At the hearing, the grounds were condensed into three overarching issues:
i) Was there a systemic flaw in the Defendant's arrangements for detention of individuals with HIV, in breach of the positive obligation under Article 3 ECHR referred to as the “systems duty”?
ii) In her treatment of the Claimant, did the Defendant breach the positive obligation under Article 3 referred to as the “operational duty”?
iii) Was the Claimant falsely imprisoned by the Defendant?
Legal framework
Article 3 of the ECHR provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In summary, Article 3 requires the State to put in place appropriate legal and administrative systems for protecting those who are vulnerable to treatment which would contravene it (the “systems duty”) and to take appropriate steps if it becomes aware that a person is at a real and immediate risk of suffering such treatment (the “operational duty”). These duties are discussed in more detail below.
Immigration legislation provides various powers under which individuals may be detained on the authority of the Defendant.
In particular, paragraph 16(2) of Schedule 2 to the Immigration Act 1971 provides that if there are reasonable grounds for suspecting that a person is someone in respect of whom directions for removal from the UK may be given under any of various provisions of that Act, that person may be detained under the authority of an immigration officer pending a decision on whether to remove and pending removal.
Case law has recognised a number of restraints on the Defendant's immigration detention powers. Four important principles were set out in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, as summarised and explained by the Supreme Court in Lumba v Secretary of State for the Home Department [2011] UKSC 12 [2012] 1 AC 245:
i) The Secretary of State must intend to remove the individual and can only use the power to detain for that purpose.
ii) The individual may only be detained for a period that is reasonable in all the circumstances.
iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect the removal within that reasonable period, she should not seek to exercise the power of detention.
iv) The Secretary of State should act with reasonable diligence and expedition to effect removal of a person in detention.
The statutory powers confer a discretion on the Defendant, which is exercised in practice by her officials such as immigration officers. The Defendant maintains published policies on how the discretion is to be exercised in practice. Some of these are found in secondary legislation. That legislation is binding, and ordinary public law principles also require the Defendant to follow her stated policy unless she has a good reason to depart from it.
The Supreme Court in Lumba ruled that if, when making a decision to detain, the decision maker makes an error of public law which is material, i.e. an error which bears on the decision to detain, the detention will be unlawful and will amount to the tort of false imprisonment. However, whilst a Claimant will usually be entitled to a declaration if such unlawfulness is made out, he will be entitled only to nominal damages – and not to compensatory damages – if it is proved that detention would have occurred even if the public law error had not been committed.
Policy framework
The Defendant's published guidance includes Adults at risk in immigration detention (the policy referred to as “AARP”) 1. Its introduction states:
“In all cases in which an individual is being considered for immigration detention in order to facilitate their removal, an assessment must first be made of whether the individual is an ‘adult at risk’ in the terms of this policy and, if so, the level of evidence (based on the available evidence, which may be limited to the individual's account) indicating the level of the policy into which they fall. If the individual is considered to be at risk, a further assessment will be made of whether the immigration considerations outweigh any risk identified. Only when they do will the individual be detained.”
Under the AARP guidance, an adult will be regarded as being at risk if, for example, they declare that they are suffering from a condition “that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention”. Consideration is required to be given to whether a medical condition can be managed in detention e.g. with medication, and decision makers are required to ask, among other things, “what happens if they do not take their medication”. The guidance requires decision makers to assess and balance risk factors and immigration control factors (such as the possibility that the individual will abscond and/or commit offences)
and to place the case in one of three levels. As will be seen, this case was assessed at level 2, meaning:“Where there is professional and/or official documentary evidence indicating that an individual is an adult at risk but no indication that detention is likely to lead to a significant risk of harm to the individual if detained for the period identified as necessary to effect removal, they should be considered for detention only if one of the following applies:
• the date of removal is fixed, or can be fixed quickly, and is within a reasonable timescale and the individual has failed to comply with reasonable voluntary return opportunities, or if the individual is being detained at the border pending removal having been refused entry to the UK
• they present a level of public protection concerns that would justify detention, for example, if they meet the criteria of foreign criminal as defined in the Immigration Act 2014 or there is a relevant national security or other public protection concern
• there are negative indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained
Less compelling evidence of non-compliance should be taken into account if there are also public protection issues. The combination of such non-compliance and public protection issues may justify detention in these cases.”
The AARP does not contain any information or guidance specifically about detainees with HIV.
The Defendant called...
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