R (Medical Justice) v Secretary of State for the Home Department

The court held that aspects of the Adults at Risk in Immigration Detention Guidance (AARSG) and associated operational material were unlawful insofar as they confined the indicator of "torture" to a UNCAT-based definition (with a narrow terrorist-group rider) and thereby failed to reflect the meaning of "torture" in Rule 35(3) of the Detention Centre Rules as authoritatively construed in EO and Others. The court found that the AARSG had been promulgated without giving adequate weight to the fact that R35(3) continues to bear the wider meaning established in EO, and that the AARSG’s list of indicators operated as effectively exhaustive rather than genuinely open-ended.

For those reasons the Detention Services Order (DSO 09/2016) and its template material were unlawful in advising medical practitioners not to make R35(3) reports where the UNCAT definition did not apply. The judge further concluded that there was no adequate evidential or rational basis for treating victims of torture by non-state actors differently for the purpose of identifying those particularly vulnerable to harm in detention, and that the AARSG in its chosen form risked requiring medical practitioners to make political or non-clinical judgments beyond their expertise.

Background and parties

The claimants, including Medical Justice and seven individuals, sought judicial review of statutory guidance and associated Home Office policy documents about identifying and treating "adults at risk" in immigration detention. The Secretary of State for the Home Department issued statutory Adults at Risk guidance (AARSG) under section 59 Immigration Act 2016, supported by Enforcement Instructions and Guidance Chapter 55b (EIG 55b) and Detention Services Order DSO 9/2016. The Equality and Human Rights Commission intervened on equality duty issues.

Nature of the challenge and relief sought

• The claimants challenged the definition of "torture" used in AARSG/DSO 9/2016 as unlawfully restrictive for the purpose of identifying those particularly vulnerable to harm in detention (they relied on the broader test identified in EO and Others).
• They also argued EIG 55b was inconsistent with AARSG and that the Secretary of State had failed to comply with the public sector equality duty under section 149 Equality Act 2010.

Procedural posture

These were first-instance judicial review proceedings in the Administrative Court before Ouseley J. The Secretary of State conceded that the individual detention decisions in the lead claimants’ cases had been unlawful; the court considered both the public law challenge to guidance and the illustrative individual cases.

Issues framed

1. Whether the AARSG and DSO lawfully defined "torture" for the purposes of identifying "adults at risk" and whether that definition lawfully changed or narrowed the meaning of "torture" in Rule 35(3) Detention Centre Rules (DCR).
2. Whether the AARSG’s list of indicators of risk was exhaustive such that victims of non-UNCAT torture could be excluded from protection.
3. Whether there was a rational and evidential basis for distinguishing victims of "UNCAT torture" from victims of non-state torture for the purpose of detention vulnerability assessment.
4. Whether the Secretary of State complied with the public sector equality duty in preparing the guidance.

Court’s reasoning and conclusions

• The court held that the meaning of "torture" in R35(3) DCR had already been authoritatively construed in EO and Others to include a broader definition (not limited to acts by state actors). That statutory instrument could not be altered by subsequent guidance. The AARSG and DSO 09/2016 had proceeded on the mistaken premise that R35(3) had been or could be redefined to the UNCAT meaning; to that extent the DSO and its templates were unlawful.
• The AARSG’s drafting (paragraphs 11–12) operated in practice as an effectively exhaustive list of indicators with a limited "other" catch-all and therefore excluded a foreseeable class of persons who, though not covered by the UNCAT-based definition, may nonetheless be particularly vulnerable to harm in detention. That exclusion made the guidance unlawful because it failed to fulfil the statutory purpose of s59 Immigration Act 2016 to identify those "particularly vulnerable" to harm.
• There was no adequate evidential basis to justify treating victims of non-state torture differently for the purpose of assessing vulnerability to detention; the expert and other material did not show that the identity of the perpetrator was determinative of vulnerability to harm in immigration detention.
• The UNCAT-based definition (with the terrorist-group rider) risked imposing on medical practitioners the need to make political or non-clinical judgments (for example on state acquiescence or a group’s territorial control) beyond their expertise; that was an additional reason why the DSO template advice was unlawful.
• On equality duty issues, the court concluded that lawful consideration under s149 could not fairly be undertaken until the legal errors in the guidance were addressed; the Secretary of State’s equality assessment had been done on a mistaken understanding of the guidance’s effect.

Disposition

The judge declared aspects of the AARSG and DSO unlawful for the reasons above and directed further submissions on the remedy; formal undertakings had been given by the Secretary of State in related correspondence and the court reserved detailed relief for further hearing.

This was a first-instance judicial review claim. The court held that aspects of the AARSG, EIG 55b as drafted, and DSO 09/2016 were unlawful in important respects. In particular, the guidance had proceeded on the incorrect assumption that Rule 35(3) of the Detention Centre Rules had the narrower UNCAT meaning of "torture" and had confined the statutory indicator of "torture" to that definition (with a narrow terrorist-group rider). That approach made the AARSG’s indicator list effectively exclusive, failed to fulfil the statutory purpose of s59 Immigration Act 2016, lacked a rational evidential basis for distinguishing victims of non-state torture as less vulnerable, and required medical practitioners to make political judgments beyond their expertise. For those reasons the relevant aspects of the AARSG and DSO were unlawful. The court invited submissions on remedies and noted undertakings given by the Secretary of State.