T, R (on the application of) v Secretary of State for the Home Department

An immigration detainee has no enforceable right to detention in an Immigration Removal Centre. Detention in prison may be lawful where exceptional risks mean that an Immigration Removal Centre cannot provide safe accommodation, provided the detainee is held under an appropriate regime.

Articles 2 and 3 require reasonable protective measures, but do not mandate detention in an Immigration Removal Centre. Article 5 requires a relationship between the ground of detention and the place and conditions of detention. Any interference with Article 8 rights must be lawful, necessary and proportionate. Ordinary restrictions arising from lawful detention will not necessarily engage Article 8, and prison detention for the detainee’s protection may be proportionate.

The claimant, a Jamaican national and police informer, was detained under the Immigration Act 1971 pending deportation. He had been assaulted and threatened in prison and could not safely be accommodated in Immigration Removal Centres because their regimes lacked suitable protective facilities.

He sought judicial review, arguing that detention in Prison Service accommodation breached Articles 2, 3, 5 and 8 of the Convention, the Detention Centre Rules 2001, and the defendant’s operational policy. The central issue was whether the failure to provide safe accommodation in an Immigration Removal Centre was unlawful.

1. Claim dismissed. The failure to accommodate the claimant safely in an Immigration Removal Centre was not unlawful.
2. Articles 2 and 3 required the defendant to take reasonable steps to protect the claimant’s safety, health and well-being. Those obligations did not require the claimant to be detained in an Immigration Removal Centre where the evidence showed that the centre could not provide adequate protection. Detention in a prison Vulnerable Prisoner Unit or comparable secure unit, while treating the claimant as an unconvicted prisoner, did not itself reach the minimum severity required for Article 3.
3. Article 5 required some relationship between the ground of detention and the place and conditions of detention. That relationship was satisfied because the claimant was detained pending removal in a single-occupancy cell in a prison for his own protection. Aerts v Belgium was distinguishable because it concerned prolonged provisional detention of a person of unsound mind in a prison psychiatric wing without adequate treatment.
4. Rule 3(1) of the Detention Centre Rules 2001 described the conditions required within an Immigration Removal Centre. It did not confer a legally enforceable right to detention in such a centre. The defendant’s policy also permitted prison detention where specific risk factors made an immigration detainee unsuitable for an Immigration Removal Centre. The stated criteria were not exhaustive, and the claimant’s case was an exceptional instance of detention in prison for his own protection.
5. The court was not satisfied that the allocation to prison accommodation engaged Article 8. If it did, the interference was in accordance with law, pursued the legitimate aim of protecting the claimant, was necessary and proportionate. The differences between prison and Immigration Removal Centre regimes did not alter that conclusion, particularly as the claimant was treated as an unconvicted prisoner and retained the applicable visiting entitlement.