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))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Canavan |
| Subject Matter | Death in detention, SoS’s duties |
| Date | 14 April 2021 |
| Published date | 14 May 2021 |
| Status | Reported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 04 March 2021 |
| Appeal Number | [2021] UKUT 114 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of Lawal) v Secretary of State for the Home Department (death in detention; SoS’s duties) [2021] UKUT 0114 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype |
Decision & Reasons Promulgated |
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On 3 and 4 March 2021 Further evidence and submissions received on 11 and 18 March 2021 |
14 April 2021 |
Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE CANAVAN
Between
THE QUEEN ON THE APPLICATION OF
AHMED LAWAL
(ANONYMITY DIRECTION NOT MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the applicant: Ms S Naik QC, Mr R Halim and Mr S Clark, instructed by Duncan Lewis Solicitors
For the respondent: Mr C Thomann, instructed by the Government Legal Department
(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 occurs whilst in immigration detention in the United Kingdom), it is important to bear in mind that the ECtHR is 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 follows that the duty to secure evidence cannot involve those such as the Secretary of State for the Home Department and her service providers, who will 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 will inevitably be the first on the scene, they clearly must take the initial steps to secure evidence. This is so, irrespective of the fact that, in order of likely appearance, the police, the Prisons and Probation Ombudsman’s investigators and HM Coroner will also become actively involved.
(2) Furthermore, it is important to acknowledge that the ECtHR has been at pains to state that the steps to be taken are “reasonable” ones. What is reasonable will depend, not only on the circumstances of the death but also the nature and purpose of the detention facility, such as whether it is holding individuals who face removal by the Secretary of State from the United Kingdom, in pursuance of her functions, conferred by Parliament, of enforcing immigration controls.
(3) The irreducible minimum obligations of the Secretary of State in this area are:
(a) to take immediate steps to ascertain whether any detainee has 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 is 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 purpose or (ii) by giving evidence by means of video-link.
(4) The Detention Services Order 08/2014: Death in Immigration Detention (August 2020) fails adequately to address the vital function of detention centre staff in identifying those detainees who, because of physical proximity to the deceased or other known associations, are likely to have relevant information, whether or not they have chosen to come forward of their own accord. The current policy of the Secretary of State is, therefore, not compliant with Article 2 in its procedural form.
(5) The Secretary of State’s present policy framework is also legally deficient in that there is nothing in her policy concerning removals; namely Judicial Reviews and Injunctions – Version 20.0 (10 October 2019), which guides her immigration officials to act compliantly with Article 2 in its procedural form, when making decisions as to the removal of an individual.
JUDGMENT1
A. THE DEATH OF OSCAR OKWURIME
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At 11.12 am on 12 September 2019, Mr Oscar Lucky Okwurime, a Nigerian national, was found dead in his room at Gauze House, which is part of the Harmondsworth premises of the Heathrow Immigration Removal Centres. He was 36 years old. Mr Okwurime (hereafter “OO”) was being detained by the respondent, in order to effect OO’s removal to Nigeria. The claimant, also a national of Nigeria, was at that time also in detention at Gauze House.
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An inquest into the death of OO was formally opened by the coroner for West London on 8 October 2019. An inquest hearing, before a jury and Mrs Lydia Brown, Coroner, was held on 13 November 2020. The record of the inquest states that OO died of a spontaneous subarachnoid haemorrhage at approximately 2300 hours on 11 September 2019, having last been seen alive at 2100 hours on 11 September. The jury’s conclusion as to the death of OO was as follows:-
“We find the death to be considered unnatural. Mr Oscar Lucky Okwurime died of a spontaneous subarachnoid haemorrhage which can rupture due to hypertension. His blood pressure reading on 22 August 2019 demonstrated Grade II hypertension. This reading was not repeated due to multiple failures to adhere to healthcare policy. Given the multiple opportunities to repeat this basic medical test on a vulnerable person, neglect contributed to the death.”
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At the inquest, the jury heard evidence from Dr Alan Bates, a pathologist. Dr Bates told the jury that his post-mortem examination of OO disclosed that OO had coronary artery disease, in the form of atheroma (hardening of the arteries). Dr Bates said it was common in his experience for people to die very rapidly of subarachnoid haemorrhage. It was therefore entirely consistent with the cause of death that OO collapsed, was unconscious and died fairly rapidly.
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The events which brought the applicant to be in immigration detention at Gauze House on 11 September 2019 are as follows. On 29 March 2012, the applicant entered the United Kingdom, in possession of a visitor visa valid until 29 September 2012. The applicant subsequently overstayed and worked in breach of his conditions. On 26 June 2015, the applicant was encountered after he had been arrested for shoplifting. Having been served with papers as an overstayer, the applicant was granted temporary admission on reporting conditions. The applicant failed to comply with those conditions. A visit by the respondent’s officers on 4 January 2016 to the applicant’s address failed to find him.
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On 12 June 2018, the applicant attended the respondent’s Asylum Support Unit and claimed asylum. He then absconded from the supported initial accommodation provided to him by the respondent. On 26 July 2018, the applicant’s asylum claim was treated as withdrawn.
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On 6 August 2019, police encountered the applicant loitering without a valid ticket in Birmingham New Street Station. He was detained as an immigration absconder and detention was authorised with a view to his removal.
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On 26 August 2019, the applicant made further representations, which were rejected on 6 September 2019. On that day, removal directions were set for 17 September 2019. This was the date of a charter flight to Nigeria, organised by the respondent.
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On 13 September 2019, a text message was prepared (but not ever sent) by the service suppliers to detainees stating “Hello, notices to detainees following the recent passing of a detainee will be issued out this evening providing an update on all the information C & C have”. According to the witness statements of Terrence Gibbs, Service Delivery Manager for the Heathrow Immigration Removal Centres, following OO’s death the staff of the respondent’s service supplier at Harmondsworth prepared and distributed a notice to detainees “to ensure that support was offered to those individuals affected and that all detainees were made aware of the investigation taking place into [OO’s death]”. The notice was delivered to each detainee’s bedroom at both the Harmondsworth and Colnbrook sites. It read as follows:
“You may be aware that unfortunately there was a death of a detainee at the Harmondsworth site earlier today.
This is clearly very sad and tragic event. If you or a fellow detainee require any support regarding this issue, please do not hesitate to contact any member of staff. [PW] of our Religious Affairs team will also be providing additional pastoral support during this time.
This matter is now being independently investigated by the Prison and probation Ombudsman and Care & custody are also conducting an internal investigation.
Please be assured we are doing all we can to reduce the risk of such incidents happening again in the future. If you are concerned about a fellow...
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