R (on the Application of Lawal) v Secretary of State for the Home Department (Death in Detention; Sos's Duties)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Canavan |
| Judgment Date | 14 April 2021 |
| Neutral Citation | [2021] UKUT 114 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 114 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Canavan UTJ
Ms S Naik QC, Mr R Halim and Mr S Clark instructed by Duncan Lewis Solicitors, for the Applicant;
Mr C Thomann instructed by the Government Legal Department, for the Secretary of State.
Al-Skeini v United Kingdom 2011 ECHR 55721/07; (2011) 53 EHRR 18
BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872; [2020] 4 WLR 38; [2020] 1 All ER 396; [2019] INLR 569
Da Silva v United Kingdom 2016 ECHR 5878/08; (2016) 63 EHRR 12
Edwards v United Kingdom 2002 ECHR 46477/99; (2002) 35 EHRR 19
Jordan v United Kingdom 2001 ECHR 24746/94; (2003) 37 EHRR 2
MA and BB v Secretary of State for the Home Department and Another [2019] EWHC 1523 (Admin)
Oneryildiz v Turkey 2004 ECHR 48939/99 (No 2); (2005) 41 EHRR 20
R v Her Majesty's Coroner for the Western District of Somerset and Another ex parte Middleton [2004] UKHL 10; [2004] 2 AC 182; [2004] 2 WLR 800; [2004] 2 All ER 465
R (on the application of Amin) v Secretary of State for the Home Department) [2003] UKHL 51; [2004] I AC 653; [2003] 3 WLR 1169; [1998] 1 WLR 972; [2003] 4 All ER 1264
R (on the application of Delezuch) v Chief Constable of Leicestershire Constabulary and Others; R (on the application of Duggan) v Association of Chief Police Officers and Others[2014] EWCA Civ 1635
R (on the application of FB (Afghanistan) and Medical Justice) v Secretary of J State for the Home Department [2020] EWCA Civ 1338; [2021] 2 WLR 839; [2021] Imm AR 134
R (on the application of Kiarie) v Secretary of State for the Home Department; R (on the application of Bvndloss) v Secretary of State for the Home Department[2017] UKSC 42; [2017] 1 WLR 2380; [2017] 4 All ER 811; [2017] Imm AR 1299; [2017] INLR 909
Shafi v Her Majesty's Senior Coroner for East London [2015] EWHC 2106 (Admin); [2016] 1 WLR 640
Tyrrell v Her Majesty's Senior Coroner County Durham and Darlington and Another [2016] EWHC 1892 (Admin)
Coroners (Inquest) Rules 2013, rules 6 & 23(1)
Coroners (Investigations) Regulations 2013, regulation 28
Coroners and Justice Act 2009, sections 1 & 5–7
Criminal Justice Act 2009, paragraphs 1(1)(a) & 7(1) of Schedule 5
European Convention on Human Rights, Article 2
Human rights — Article 2 of the ECHR right to life — procedure and process Home Office procedures — death in custody — Secretary of State's procedural duties witnesses — immigration detainees removal decisions
On 12 September 2019, Mr Oscar Lucky Okwurime (“OO”), a Nigerian national, was found dead in his room at Gauze House, which was part of the Harmondsworth premises of the Heathrow Immigration Removal Centres. He was 36 years old. OO was being detained by the Secretary of State for the Home Department, in order to effect his removal to Nigeria, following an inquest into his death, the jury found that OO had Grade II hypertension and had died of a spontaneous subarachnoid haemorrhage at approximately 2300 hours on 11 September 2019. The jury concluded that his blood pressure had not been monitored due to multiple failures to adhere to healthcare policy and therefore neglect had contributed to his death.
The Applicant, also a national of Nigeria, was in detention at Gauze House at the time of OO's death. The Applicant had entered the United Kingdom on a visitor visa in March 2012. He had subsequently overstayed and failed to comply with reporting conditions. In August 2019, he was placed in immigration detention with a view to his removal. Removal directions were set for I 7 September 2019.
Following OO's death the staff of the Secretary of State's service supplier at Harmondsworth prepared and distributed a notice to detainees offering support to those individuals affected and informing them that the matter was being independently investigated by the Prison and Probation Ombudsman (“PPO”).
On 16 September 2019, the Applicant was served with notice refusing his latest representations regarding his removal. On the same day, he applied in person for judicial review and interim relief. The Upper Tribunal (“UT”) refused the applications, finding no evidence to support a protection claim, human rights claim or claim that the Applicant was not fit to fly. On the same day, certain detainees, including the Applicant, contacted Duncan Lewis Solicitors in order to provide information regarding the circumstances of OO's death. As at I 6 September, no statements had been taken by the service provider, or anyone else, from any detainee at Gauze House, concerning OO's death, including the detainee who occupied the room next to that of OO. On 17 September 2019, the Applicant was granted interim relief, preventing his removal until further order, following the application made on his behalf by Duncan Lewis Solicitors. The Applicant's grounds were accompanied by witness statements which stated that he knew OO very well, that he had evidence to give as to the efforts made by OO to get an appointment with healthcare in the weeks prior to OO's death and his observations on the night of the death.
On 18 September 2019, an investigator of the PPO spoke to three detainees at the centre. Thereafter the PPO indicated that she did not intend to interview any additional detainees but would accept statements in writing from any detainee who felt that they had information relevant to her investigation.
In response to the Applicant's judicial review application, the Secretary of State submitted that, since the Applicant's removal had been deferred, the judicial review was now academic. In reply, the Applicant contended that his removal would render him non-compellable as a witness and thus materially impair the effectiveness of the pending coronial inquest and, thus, the discharge of the Secretary of State's procedural obligation under Article 2 of the ECHR. In January 2020, the application for permission to bring judicial review was transferred by the High Court to the UT. In February 2020, the UT granted permission on the ground that it was at least arguable that the Applicant might be a relevant witness with respect to the inquest.
The issues before the UT were, first, whether the decision communicated on 16 September 2019, to set directions for the applicant's removal on 17 September, amounted to a breach of Article 2 ECHR; secondly, whether the Secretary of State could lawfully remove a potential material witness to a death in custody in circumstances where their evidence had not been secured and a coroner had not made a decision as to whether they were required to give evidence at the final inquest hearing: and thirdly, whether the Secretary of State's failure to have in place a policy framework, which made clear provision for a proper investigation into witnesses to a death in custody prior to any enforcement action being taken, was lawful.
Held, allowing the application:
(1) In considering the Strasbourg caselaw as to the extent of the Article 2 procedural duty to investigate a suspicious death, including a death that occurred whilst in immigration detention in the United Kingdom, it was important to bear in mind that the ECtHR was concerned with the entirety of the process, beginning with the initial steps to secure evidence and ending with the actual investigation or trial. Although the investigation or trial must be conducted with the requisite degree of independence, it by no means followed that the duty to secure evidence could not involve those such as the Secretary of State and her service providers, who would not be conducting the subsequent independent investigations. On the contrary, given that, in the context of a death in detention, the service providers and the Secretary of State's relevant officials at the detention centre would inevitably be the first on the scene, they clearly must take the initial steps to secure evidence. That was so, irrespective of the fact that, in order of likely appearance, the police, the PPO's investigators and HM Coroner would also become actively involved, furthermore, it was important to acknowledge that the ECtHR had been at pains to state that the steps to be taken were “reasonable” ones: Da Silva v United Kingdom2016 ECHR 5878/08 and Edwards v United Kingdom2002 ECHR 46477/99 applied. What was reasonable would depend, not only on the circumstances of the death but also the nature and purpose of the detention facility, such as whether it was holding individuals who faced removal by the Secretary of State from the United Kingdom, in pursuance of her functions, conferred by Parliament, of enforcing immigration controls (paras 64 – 65).
(2) The Applicant's submission that the Secretary of State must permit the coroner to reach a conclusion as to which witnesses were required and by what means their evidence should be provided was rejected. To insist that the coroner, in effect, approved of the removal of any individual who might have evidence that might fall to be considered at an inquest went beyond what was reasonable in order to comply with the Article 2 procedural duty, as articulated by the HCtHR and interpreted by the domestic courts. The irreducible minimum obligations of the Secretary of State in this area were: (a) to take immediate steps to ascertain whether any detainee had evidence to give regarding the death in detention; (b) to record, or facilitate the recording of, a statement of such evidence; (c) to determine whether the individual was willing to give evidence at the inquest; (d) to record relevant contact details of the individual, including in the country of proposed removal; and (e) to consider the practicability of the individual giving evidence at the inquest either (i) by returning to the United Kingdom for that...
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Upper Tribunal (Immigration and asylum chamber), 2021-04-14, [2021] UKUT 114 (IAC) (R (on the application of Lawal) v Secretary of State for the Home Department (Death in detention, SoS’s duties))
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