R Idira v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMaster of the Rolls,Lord Justice McCombe
Judgment Date20 November 2015
Neutral Citation[2015] EWCA Civ 1187
Docket NumberCase No: C4/2015/0232
CourtCourt of Appeal (Civil Division)
Date20 November 2015

[2015] EWCA Civ 1187






[2014] EWHC 4299 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL


The Master of the Rolls



Lord Justice McCombe

Case No: C4/2015/0232

The Queen on the application of Idira
The Secretary of State for the Home Department

Richard Drabble QC and Graham Denholm (instructed by Bhatt Murphy) for the Appellant

Thomas Roe QC and Mathew Gullick (instructed by Government Legal Department) for the Respondent

Hearing date: 02/11/2015

Further written submissions: 03/11/2015 & 05/11/2015

Master of the Rolls



This appeal is concerned with the respondent's policy of using prisons rather than purpose-built Immigration Removal Centres ("IRCs") as places of detention for time-served convicted foreign national offenders ("TSFNOs") who have served their custodial sentences and are awaiting deportation. The judge regarded the appellant's detention in a prison as in principle contrary to article 5(1) of the European Convention on Human Rights ("the Convention"), but held that he was constrained by this court's decision in R (Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549 to find otherwise unless the prison conditions were "unduly harsh", which he found they were not.


Mr Drabble QC on behalf of the appellant submits that the judge (i) was right to regard immigration detention in prison as contrary to article 5(1); (ii) was wrong to hold that he was bound by Krasniqi to hold otherwise unless the prison conditions were unduly harsh; and (iii) was wrong not to find that the conditions in which the appellant was detained were unduly harsh. Mr Roe QC on behalf of the respondent takes issue with each of these submissions.

The facts


The appellant is an Algerian national. Such leave as he had to remain in the UK expired on 10 July 2004, but he has remained here illegally ever since. He has committed numerous offences here. As long ago as 10 September 2007, the respondent made an order for his deportation on the ground that his presence in the UK was not conducive to the public good. He has not yet been deported because of difficulties with documentation.


On 20 November 2012, he was sentenced to a term of imprisonment for theft. He was sent to Wandsworth Prison. The custodial part of his sentence was completed on 14 January 2013. Thereupon, he was immediately detained by the respondent under her powers in the Immigration Act 1971 ("the 1971 Act"). He remained in Wandsworth Prison, although he became entitled to be treated as an "un-convicted prisoner", that is to say, like persons in prison on remand. He stayed there until 7 November 2013 when he was moved to Wormwood Scrubs Prison. On 21 March 2014, he was moved to Harmondsworth IRC and on 31 July 2014, he was released on immigration bail.


The 1971 Act does not specify where a person detained under its provisions should be detained. Until 24 January 2012, the respondent's policy was that TSFNOs "should only be held in prison establishments when they present risk factors that indicate they pose a serious risk to the stability of [IRCs] or to the safety of others being held there". To this end, there was provision for "individual risk assessments": see Version 12 of Chapter 55, Section 55.10.1 (and the earlier versions) of the Enforcement Instructions and Guidance.


In July 2013, the appellant was assessed as not posing a risk to the stability of IRCs or to the safety of others being held there. By this time, however, the respondent had reached a new agreement with the National Offender Management Service ("NOMS"), which is part of the Ministry of Justice, under which a number of places in prisons were made available for immigration detention. She changed her policy in the light of this agreement. The policy from 24 January 2012 was (and in substance remains) that:

"The normal expectation is that the prison beds made available by NOMS will be used to hold TSFNOs before any consideration is given to transferring such individuals to the IRC estate. This position will apply if there are free spaces among the beds provided by NOMS and even if the criteria or risk factors [making detention in prison necessary] are not presented by the FNOs concerned."


The reason for the change in policy was as the judge found at para 26 of his judgment:

"The overall pressures on the system, both physical and financial, conspired to create a state of affairs whereby [the respondent] needed to purchase a number of bed spaces from NOMS and, having done so, those bed spaces needed to be kept as full as possible."


The number of prison places available to the respondent under this scheme was initially 600, but it increased to 1,000 in late 2012. The general rule was now that TSFNOs would be held in prison unless the beds they were occupying were required for other detainees, in which case they would usually be transferred to an IRC on a "first in first out" basis.


The effect of the policy was that the appellant remained in prison until 21 March 2014, whereas under the old policy he would have been moved to an IRC in about July 2013 on being assessed as not posing any risks requiring that he stay in prison.

The claim


The appellant claims that his detention between July 2013 and 21 March 2014 in a prison rather than an IRC, pursuant to the new policy, was (i) unlawful on domestic public law grounds and (ii) in breach of his rights under article 5(1) of the Convention and thus unlawful under section 6(1) of the Human Rights Act 1998.

The judgment


The judge held that the policy of using prison for the detention of persons in the appellant's position was unlawful on ordinary public law grounds because (i) it "eschewed any individualised assessment" of the detainee and was "irrational"; and (ii) it was a "blanket policy which admitted of no exceptions". The respondent takes issue with both reasons and advances cogent arguments for doing so. But since the judge granted no relief in respect of this finding of unlawfulness, the respondent could not and did not seek to cross-appeal. Without being taken to agree with the judge's conclusions, I propose to say no more about it.


If he had not been constrained by Krasniqi, the judge said that he would have held that the appellant's detention in a prison was "arbitrary" and so contrary to article 5(1) of the Convention because there was "no link between the ground or reason for the [appellant's] detention and its location and conditions": (para 51(ii) and paras 59–75). He reached this conclusion after carefully analysing a number of the principal decisions of the European Court of Human Rights ("ECtHR") to which I shall have to refer. I shall return to the judge's reasoning after I have considered these decisions.


On the question of the conditions of detention in the prison estate, the judge held (at para 91) that the evidence adduced by the appellant was "quite insufficient to show anything like the level of 'undue harshness' which Carnwath LJ had in mind in Krasniqi". He added that "this would be so whether 'unduly harsh' is to be understood as meaning 'tantamount to a breach of article 3' or something slightly less serious". The appellant "failed by some margin" to meet the article 5(1) threshold test which the Court of Appeal had in mind in Krasniqi (para 92). The claim accordingly failed.

The issues arising on the appeal


The issues that arise are whether the judge was right to hold that (i) pace Krasniqi, immigration detention in a prison is generally contrary to article 5(1); (ii) he was bound by Krasniqi to hold that immigration detention in a prison is not contrary to article 5(1) unless the conditions of detention are "unduly harsh"; and (iii) (applying Krasniqi) the appellant's conditions of detention were not "unduly harsh".

The first issue: is immigration detention in a prison rather than an IRC generally contrary to article 5(1)?


Mr Roe is right to say that the correct starting point is the text of article 5(1) itself which provides:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."


The text is silent as to whether a person who is being detained in any of the permitted cases must be detained in any particular sort of...

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