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

Under Rule 40 of the Detention Centre Rules 2001, removal from association requires necessity in the interests of safety or security. In a contracted-out centre, the Secretary of State may exercise the power through an appropriate departmental official. The decision-maker must be independent of the centre’s management, but need not be of a particular rank or located elsewhere. A contract monitor may therefore authorise removal unless actual or apparent lack of independence is shown.

Rule 40 is sufficiently clear to protect detainees against arbitrary decisions. It does not require a separate published policy or guidance. Previous disruptive conduct and immigration history may be relevant to necessity, even where removal from association cannot eliminate every risk.

The appellant, a Kenyan national detained at Yarl’s Wood Immigration Removal Centre, was removed from association before an intended removal to Kenya. The removal from association began on 1 August 2016 and continued beyond the first 24 hours.

Holman J granted a declaration that the continuation after 24 hours was unlawful and breached article 8, but rejected or declined to determine the appellant’s other challenges. The appeal concerned the authority of the decision-maker, rationality and proportionality, and whether the absence of published policy or guidance made the Rule 40 regime unlawful.

1. Disposition. The appeal was unanimously dismissed. The declaration that removal from association after 1230 on 2 August 2016 was unlawful remained undisturbed.
2. Authority and independence. In a non-urgent case at a contracted-out detention centre, the initial decision under Rule 40 is the Secretary of State’s decision. It may be made on the Secretary of State’s behalf by a responsible departmental official under the Carltona principle: [1943] 2 All ER 560. The selection of that official remains reviewable for public-law error. Rule 40 has a protective purpose, so the decision-maker must be independent of the detention centre’s management. It does not, however, require a particular rank or location outside the centre.
3. A contract monitor is also a Crown servant under section 149(6)(b) of the Immigration and Asylum Act 1999. The holding of that role, or co-location at the centre, does not itself establish a lack of actual or apparent independence. The reasoning in Oladehinde, [1991] 1 AC 254, supported that conclusion. The broader reading of Bourgass, [2015] UKSC 54, was not justified. Its reference to officials from outside the prison described the practical position in that case and did not impose a general rank or location requirement under Rule 40.
4. Authorising removal from association is a custodial function within section 149(7)(b) of the 1999 Act. It would be inappropriate for the same official to make the decision and investigate it. That possibility could be addressed by appointing another investigator; it did not create a general legal bar on a contract monitor authorising removal.
5. Rationality and proportionality. The appellant’s immigration history and previous disruptive conduct were relevant to whether removal from association was necessary in the interests of safety or security. Removal from association need not eliminate all risk. It was sufficient that it reduced the risk of resistance or misconduct and made the removal easier to manage. The first 24-hour period was not arguably irrational or disproportionate for article 8 purposes.
6. Transparency. Rule 40 states its criterion in clear terms. No further policy or guidance was legally necessary merely because the power could arise in varied circumstances. The later issue of Detention Services Order 02/2017 did not establish that publication had previously been required.
7. In the absence of an order for a rolled-up hearing, the respondent was entitled to treat grounds 4 and 5 as a renewed application for permission rather than as a substantive claim. Although the appellant was entitled to have that application determined, the challenges would fail in any event.

• Court of Appeal (Civil Division). The appeal was dismissed unanimously.
• High Court of Justice, Queen’s Bench Division, Administrative Court. Holman J granted a declaration that removal from association after the first 24 hours was unlawful and an unjustified breach of article 8, but rejected or declined to determine the appellant’s remaining grounds.