Medical Justice & Ors v Secretary of State for the Home Department & Anor

Statutory guidance on immigration detention must address all persons who are particularly vulnerable to harm in detention. A guidance document which makes an indicator list effectively exhaustive, while omitting a foreseeable class of vulnerable persons, is unlawful and beyond the power conferred by Immigration Act 2016, s 59. Guidance cannot alter the meaning of a statutory instrument. The definition of “torture” in rule 35 of the Detention Centre Rules 2001 therefore remained the broader definition previously determined by the court. A definition based on the UNCAT concept was also irrational in this context where the evidence did not establish that the perpetrator’s public or private status materially determined vulnerability to detention. Medical practitioners could not rationally be required to resolve political questions about state responsibility without suitable procedural provision.

These conjoined judicial review claims challenged the Adults at Risk in Immigration Detention statutory guidance, EIG 55b and Detention Services Order 09/2016. The claimants argued that the guidance unlawfully restricted the meaning of “torture”, excluded victims of serious non-state violence from protection, was internally inconsistent and had been adopted without proper compliance with the public sector equality duty.

The Secretary of State contended that the guidance protected all vulnerable persons through a case-by-case assessment and that the UNCAT definition merely provided an additional safeguard. The claims also concerned errors in the detention decisions of individual claimants. The central issues were the relationship between the guidance and rule 35 of the Detention Centre Rules, the scope of the indicators of vulnerability, and whether the guidance fulfilled s 59 of the Immigration Act 2016.

1. The guidance was unlawful in material respects. The earlier decision in EO and Others v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), which was not appealed, authoritatively determined the meaning of “torture” in rule 35(3) of the Detention Centre Rules 2001. The Secretary of State could not alter that meaning by guidance. DSO 09/2016, its templates and related caseworker instructions were unlawful to the extent that they treated the narrower UNCAT definition as controlling rule 35(3).
2. The Adults at Risk guidance was intended to operate as a coherent statutory scheme. Its specific indicators, read with the limited wording concerning unforeseen conditions, formed an effectively exhaustive list. The guidance therefore failed to cover foreseeable persons who had suffered severe pain and suffering in circumstances falling outside the UNCAT definition but who were particularly vulnerable to harm in detention. That was inconsistent with the purpose of s 59, which required guidance addressing all such persons.
3. The distinction between UNCAT torture and the broader definition previously adopted in EO and Others lacked a rational or evidential basis for this purpose. The evidence showed that vulnerability was principally related to the circumstances of powerlessness and the effects of severe ill-treatment, not materially to whether the perpetrator was a public or private actor. The Secretary of State was entitled to adopt a new definition, but it need not be either definition already used.
4. The UNCAT definition also required medical practitioners, without adequate procedural provision, to investigate or assess political matters such as state acquiescence, the status of terrorist groups and territorial control. That allocation of responsibility was irrational in the context of medical reporting.
5. The differences between the statutory guidance and EIG 55b concerning evidence levels and foreign national offenders did not independently make either document unlawful. The public sector equality duty could not lawfully be assessed on the true effects of the policies until their meaning and structure had been corrected. The court reserved the question of final relief.

First-instance judicial review proceedings. The judgment records no appeal or earlier decision in the same litigation that was under appeal.