R SPM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 28 July 2022 |
| Neutral Citation | [2022] EWHC 2007 (Admin) |
| Docket Number | Case No: CO/606/2022 & CO/609/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2007 (Admin)
Mrs Justice Lang DBE
Case No: CO/606/2022 & CO/609/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Goodman and Miranda Butler (instructed by Duncan Lewis Solicitors Ltd) for the Claimants
Thomas Roe QC and Simon P G Murray (instructed by the Government Legal Department) for the Defendant
Hearing dates: 28 & 29 June 2022,
followed by written submissions dated 7 & 8 July 2022
Approved Judgment
In these two linked claims, the Claimants apply for judicial review of the arrangements made by the Defendant for the provision of legal advice to detainees at Derwentside Immigration Removal Centre (“IRC”), Consett, County Durham DH8 6QY (hereinafter “Derwentside”).
The Claimant in claim CO/606/2022 (hereinafter “SPM”) is a South African national, who has made an unsuccessful claim for asylum in the United Kingdom (“UK”), and was detained by the Defendant at Derwentside. She has now been released on bail.
The Claimant in claim CO/609/2022 (hereinafter “WRW”) is a charitable incorporated organisation which specialises in supporting refugee women through advocacy, research and education.
Derwentside opened in November 2021, and the first detainees were moved there on 28 December 2021. It is a female-only IRC which has replaced Yarl's Wood IRC as the main IRC for detained women. The Claimants contend that the Defendant's detention of women at Derwentside is unlawful because of the inadequate provision of in-person legal advice, through a Detained Duty Advice Scheme (“DDAS”), and/or legal aid for advice and representation. The relief sought includes an order prohibiting the detention of women at Derwentside.
On 31 March 2022, permission to apply for judicial review was granted by Bourne J. on the papers, on Grounds 1 to 3 in both claims, and Ground 5 in SPM's claim. Permission was refused on Ground 4 in SPM's claim, and SPM's renewed application for permission on Ground 4 has been listed to be heard at the substantive hearing.
Grounds of challenge
SPM and WRW both rely upon Grounds 1 to 3, as follows.
Ground 1
A detainee's right to effective access to justice encompasses an unimpeded right to in-person legal advice. This has not been available at Derwentside, thus creating a real risk that detainees do not have effective access to justice. Therefore, in the absence of any express statutory authority for depriving women of that right, the detention of women at Derwentside is ultra vires.
Ground 2
The absence of adequate in-person provision of legal advice at the main women's IRC at Derwentside is discriminatory, on grounds of sex, as male IRCs all make provision for in-person legal advice. By section 26(9) of the Equality Act 2010 (“EA 2010”), a person must not, in the exercise of a public function that is not the provision of a service to the public, do anything that constitutes discrimination. The Claimants contend that the differential provision is either directly discriminatory, contrary to section 13 EA 2010 or indirectly discriminatory, contrary to section 19 EA 2010.
Ground 3
The Defendant has not shown due regard to the public sector equality duty under section 149(1) EA 2010 in making the decision to detain women at Derwentside without adequate access to in-person legal advice, and/or to continue to do so when initial proposals for DDAS surgeries were not implemented.
SPM also relies upon Grounds 4 and 5, as follows.
Ground 4
SPM's detention without access to in-person legal advice discriminated against her on the grounds of sex in that she enjoyed substantially inferior access to legal advice than men who were detained. This was contrary to Article 14 of the European Convention on Human Rights (“ECHR”), read together with Articles 2, 3, 4, 5, 6 or 8 ECHR. She claims damages pursuant to section 7 and 8 of the Human Rights Act 1998.
Ground 5
SPM's detention was unlawful, and constituted false imprisonment.
Facts
SPM
SPM, whose date of birth is 28 December 1974, came from South Africa to the UK on 5 December 2018, on a visitor's visa which was valid until 6 May 2019. SPM's native language is Zulu; she has a limited knowledge of English. She claimed asylum on 22 February 2019. Her claim was refused by the Defendant on 29 February 2020. Her appeal to the First-Tier Tribunal (“FTT”) was dismissed on 9 November 2021. She became appeal rights exhausted on 24 November 2021.
According to SPM, she was the victim of physical and mental abuse at the hands of her stepmother, and forced to work from the age of 12 years. She was raped by her uncle. At the age of 14 or 16, she entered into an arranged marriage with a man called Joshua, who forced her to work as a prostitute, and act as a servant to his other wives. She escaped from this forced marriage and met a man called Samuel who was the leader of a criminal gang. He and members of his gang subjected her to physical, mental and sexual abuse. In 2014, SPM was stabbed by Samuel in the abdomen and has scarring as a result. In 2015 SPM was shot in the head by Samuel, which caused her to suffer from epilepsy and hearing impairment. She now requires hearing aids and struggles to hear on the telephone. After the shooting, she went into hiding, but she was followed and threatened by Samuel and his men.
In the FTT appeal, SPM was represented by Fountain Solicitors and Mr H. Dieu of counsel. FTT Judge Lebasci concluded that SPM was not a credible witness and the evidence did not support a finding that SPM had been a victim of forced labour, forced marriage and violence. He dismissed her asylum and human rights appeals. In the course of his decision, the FTT Judge said:
“47.9 It is the Appellant's evidence Samuel stabbed her with a knife in 2014 and she was admitted to hospital for two months. She claims to have provided medical evidence and says she is unable to provide anything else. At the hearing, the Appellant produced a photograph of the scar which she says she has been left with as a result of this injury. The medical evidence provided …. appears to relate to a gunshot injury in 2015 and therefore does not assist me in relation to the alleged incident in 2014. No evidence from a health care professional in the UK has been provided regarding the existence of any scar which the Appellant has or its likely cause.”
On 24 January 2022, SPM was detained when reporting in accordance with her reporting conditions, and she was served with liability to removal papers (form RED.0001). According to SPM, her solicitors had not informed her of the outcome of her appeal, despite her frequent attempts to contact them. Removal directions were set for 7 February 2022.
On 27 January 2022, SPM was transferred to Derwentside. She claims she called Fountain Solicitors but she could not reach them. After her arrival SPM was given a pamphlet which explained that she could ask for legal advice. She claims she rang the legal advice telephone number in the pamphlet but did not receive any response. She claims she asked the officers at Derwentside to assist her in finding a solicitor but they did not do so. On 29 January 2022, SPM asked her partner to bring her medication and batteries for her hearing aids. When he arrived at the detention centre he was refused entry. This led to SPM feeling suicidal and being placed on an open Assessment Care in Detention and Teamwork (“ACDT”) plan (for detained individuals at risk of suicide or self harm).
On 31 January 2022, still without any legal assistance, the Claimant wrote to the Defendant asking her to reconsider her case. She explained that she was having difficulty finding a solicitor.
On 2 February 2022 a report under Rule 35 of the Detention Centre Rules 2001 (“a Rule 35 report”) was drawn up by a member of the Derwentside healthcare team. It reported her concern that SPM was a victim of domestic abuse and torture. On examination, SPM had a number of significant scars which were consistent with her account. The report summarised her mental and physical health issues.
On 4 February 2022, the Defendant maintained SPM's detention in response to the Rule 35 report. Also, on 4 February 2022 the Defendant wrote to SPM maintaining her decision to remove the Claimant to South Africa. SPM was served with the IS151D Removal Papers and Immigration Factual Summary.
On 4 February 2022, SPM was referred to Duncan Lewis Solicitors by a member of WRW who had spoken to her on the phone. Ms Lily Parrott, a solicitor at Duncan Lewis, immediately contacted SPM by telephone. However, SPM and Ms Parrott had difficulty communicating because of SPM's hearing impairment and limited English (no Zulu interpreter was available). As a result, Ms Parrott was unable to obtain full instructions. At Ms Parrott's request, a member of IRC staff printed out the authority and legal help forms and helped SPM scan and send the signed documents to Ms Parrott, along with the notice of liability to removal and the Rule 35 report. Once Ms Parrott realised that SPM had a hearing impairment, she was able to take further instructions from SPM on the telephone more effectively on several occasions by speaking loudly directly into the telephone microphone which increased SPM's comprehension. Ms Parrot also requested and received further relevant documents from the Home Office.
On 6 February 2022, Ms Parrott sent an urgent pre-action letter to the Defendant which (among other matters) identified clear trafficking indicators which they submitted required...
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