McFarlane, R (On the Application Of) v Secretary of State for the Home Department

The Secretary of State may detain an immigration detainee in prison where an operational assessment identifies specific risk factors indicating a serious risk to the stability of an Immigration Removal Centre. Relevant guidance is not exhaustive. The assessment may consider confidential intelligence, unproved conduct, acquittals and prison adjudications, provided the matters are carefully and cumulatively assessed. Prison categorisation and the regime within a prison normally fall to the Prison Service, not the Secretary of State for the Home Department. In an exceptional case, overwhelming evidence of seriously harmful and unjustified conditions might support relief against the Home Secretary.

The claimant was detained under immigration powers pending removal to Jamaica. After criminal proceedings ended, the Secretary of State continued to detain him at HMP Belmarsh rather than transfer him to an Immigration Removal Centre. He challenged that decision as irrational, unreasonable and contrary to published guidance. He also sought relief concerning his detention in a category A prison and the conditions of detention.

The court granted permission at a rolled-up hearing and determined the substantive claim. The central questions were whether retaining the claimant in prison was lawful and whether responsibility for prison categorisation and conditions lay with the defendant.

1. Primary challenge dismissed. The guidance did not establish exclusive categories of conduct which alone justified detention in prison. It contemplated an individual operational decision directed to the safety and welfare of detainees and staff and the stability of the Immigration Removal Centre estate.
2. The Secretary of State was entitled to assess risk cumulatively. She could consider the circumstances of the claimant’s conviction, evidence underlying an unproceeded GBH charge, a prison adjudication for fighting, and confidential police intelligence concerning links to gun and drug crime and a propensity for extreme violence. An acquittal or absence of conviction did not require the underlying information to be disregarded, and the decision-maker did not thereby treat the claimant as guilty.
3. The decision was neither irrational nor unreasonable and did not depart unlawfully from the published guidance. The reasons given were adequate, and there was no evidence of bad faith.
4. The claimant was permitted to amend the claim concerning prison categorisation. Once lawful detention in prison had been decided, categorisation, the applicable regime and cell arrangements normally fell within the operational responsibility of the Prison Service and the Secretary of State for Justice.
5. The court observed that, in an exceptional case, overwhelming evidence that the category and conditions were seriously harmful and unjustified might support a human-rights claim against the Home Secretary for failing to order transfer. The evidence did not approach that threshold. The claim was dismissed. Costs were awarded to the defendant, not enforceable without leave, and the claimant’s legally aided costs were directed to detailed assessment. Permission to appeal was refused, but time to renew was extended to 20 days from the transcript.