The Queen (on the application of Mr (Pakistan) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 20 December 2019 |
| Neutral Citation | [2019] EWHC 3567 (Admin) |
| Docket Number | Case No: CO/2701/2018 & CO/4233/2018 |
| Date | 20 December 2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3567 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/2701/2018 & CO/4233/2018
Hugh Southey QC and Raza Halim (instructed by Duncan Lewis) for the Claimants
Robin Tam QC and Julie Anderson (instructed by GLD) for the Defendants
Hearing dates: 16–19 July and 22 November 2019
Approved Judgment
Introduction
The principal issue in this claim is whether the scheme governing the detention of immigration detainees held in the prison estate is unlawful because it fails to provide equivalent protection or mechanism to that contained in Rules 34 and 35 of the Detention Centre Rules 2001 (“the 2001 Rules”) that are a part of the scheme that applies in Immigration Removal Centres (“IRCs'”) governing the detention of immigration detainees (“ The principal issue”).
In short, rule 34 provides for an initial health assessment of a detainee on induction to an IRC. Rule 35 is a mechanism for the IRC general practitioner to report to the Secretary of State for the Home Department (“SSHD”) certain matters that may mean that detention is injurious to the detainee's health, or to give a medical opinion in relation to claims made by a detainee to be a victim of torture.
In addition AO makes a discrete complaint that his detention was unlawful for other reasons, and a further discrete complaint about the time that it took to find him bail accommodation when he was seeking release from detention on bail (“ AO's claims of unlawful detention”).
MR is a Pakistani national born on 17 February 1982. He claims to have been the victim of ill treatment by a “notorious gang” in Pakistan and a victim of torture. He has made an asylum claim which remains outstanding.
AO was born in Nigeria on 1 November 1989. He claims to have been ill treated by members of Boko Haram in Nigeria and to be a victim of torture. He too made an asylum claim. That claim was dismissed on 29 March 2017. On 27 March 2019 his appeal against that decision was dismissed by the First Tier Tribunal. On 9 May 2019 he was refused permission to appeal by the First Tier Tribunal, and on 19 June 2019 he was refused permission to appeal by the Upper Tribunal.
The Secretary of State for Justice (“SSJ”) is responsible for the prison estate. The SSJ is also responsible for the National Probation Service, the named Third Defendant, and for the National Offender Management Service (“NOMS”). Accordingly, in so far as the Claimants' claim is brought against the Third Defendant or complains about NOMS, it will be treated as a claim brought against the SSJ. The SSHD is responsible for IRCs.
(A) The Principal Issue
The Statutory Framework
Detainees held in prison
Prisons are governed by the Prison Act 1952 (“the 1952 Act”), and by the Prison Rules 1999 (“the 1999 Rules”) made under the 1952 Act. The 1999 Rules govern the detention of immigration detainees held in the prison estate.
Rules 20-22 of the 1999 Rules are in a section of the rules headed “MEDICAL ATTENTION”. Rules 20 and 21, so far as is relevant, provide as follows:
“ Medical Attendance
20-(1) The governor must work in partnership with local health care providers to secure the provision to prisoners to access to the same quality and range of services as the general public receives from the National Health Service.
(2) Every request by a prisoner to see the medical officer shall be recorded by the officer to whom it is made and promptly passed on to the medical officer.
(3) The medical officer may consult a medical practitioner who is a fully registered person within the meaning of the Medical Act 1983. Such a practitioner may work within the prison under the general supervision of the medical officer. …
Special Illnesses and Conditions
21-(1) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any condition of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations.
(2) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall pay special attention to any prisoner whose mental condition appears to require it, and make any special arrangements which appear necessary for his supervision or care…”
Detainees held in IRCs
Rules 33-37 of the 2001 Rules, made under the Immigration and Asylum Act 1999 (“the 1999 Act”), are in a section of the Rules headed “Health Care”, the material parts of which provide:
“ Medical practitioner and health care team
33-(1) Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983.
(2) Every detention centre shall have a health care team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at that centre.
(3) Each member of the health care team shall (as far as they are qualified to do so) pay special attention to the need to recognise medical conditions which might be found among a diverse population and the cultural sensitivity appropriate when performing his duties.
…
(5) Every request by a detained person to see the medical practitioner shall be recorded by the officer to whom it is made and forthwith passed to the medical practitioner or nursing staff at the detention centre.
Medical examination upon admission and thereafter
34-(1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with Rules 33( 7) or (10)) within 24 hours of his admission to the detention centre.
(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detailed person does not consent to it.
(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.
Special illnesses and conditions (including torture claims)
35-(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), ( 2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”
The Immigration Act 2016 (“The 2016 Act”)
Section 59(1) of the Immigration Act 2016 provides as follows:
“The Secretary of State must issue guidance specifying matters to be taken into account by a person to whom the guidance is addressed in determining
(a) whether a person (‘P’) would be particularly vulnerable to harm if P were to be detained or to remain in detention, and
(b) if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention.”
By s.59(2), “detained” and “detention” are essentially defined as meaning detention under immigration legislation.
Immigration Act 2016: Guidance on adults at risk in immigration detention (July 2018 version) (“the Guidance”)
The Guidance states, so far as is relevant:
“ Purpose and background
1. This guidance specifies the matters to be taken into account in accordance with Section 59 of the Immigration Act 2016 when determining whether a person would be particularly vulnerable to harm if they were detained, or if they remained in detention, and, if they were particularly vulnerable in those circumstances, whether they should be detained or remain in detention. This approach emerges from the Government's response (in a Written Ministerial Statement of 14 January 2016) to the report by Stephen Shaw of his review of the welfare of vulnerable people in detention. The intention is that the guidance will, in conjunction with other reforms referred to in the Government's response, lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal…
2. This guidance allows for a case by case evidence-based assessment of the appropriateness of the detention of an individual considered to be at particular risk of harm in the terms of this guidance.
3. The clear presumption is that detention will not be appropriate if a person is considered to be ‘at risk’. However, it will not mean that no-one at risk will ever be detained. Instead, detention will only become appropriate at the point at which immigration control considerations outweigh this presumption. Within this context it will remain appropriate to detain individuals at risk if it is...
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