MR (Pakistan) & Anor, R (On the Application Of) v Secretary of State for Justice & Ors

The principal issue was whether the scheme governing immigration detention of detainees held in the prison estate was unlawful because it lacked the specific induction health assessment and reporting mechanisms for vulnerability and torture contained in Rules 34 and 35 of the Detention Centre Rules 2001 (which apply in Immigration Removal Centres). The claimants also advanced discrete complaints that AO was unlawfully detained and that delay in securing approved premises made his detention unlawful.

The court held that the differences between the IRC and prison regimes did not amount to inherent unfairness or unlawfulness. The prison rules (including Rule 21 of the Prison Rules 1999), the Immigration Act 2016 guidance (the Adults at Risk guidance) and other established information routes provide sufficient mechanisms for health and vulnerability information to reach decision-makers. The court rejected arguments of irrationality, Article 14 discrimination and breach of the Equality Act 2010.

On the individual complaints, the court found that AO’s continued detention complied with the Hardial Singh principles and that the period taken to secure approved-premises accommodation was not unlawfully long or unreasonable in the circumstances; collateral claims for damages under the Lumba principle failed.

This is a first-instance judicial review in which two detainees held under immigration powers while in the prison estate challenged the lawfulness of the detention scheme as deployed in prisons and raised related discrete complaints.

Background and parties:

• Claimants: MR (Pakistan) and AO (Nigeria), both alleged victims of ill-treatment or torture and both with asylum-related histories; AO faced deportation following criminal convictions and had pursued appeals.
• Defendants: Secretary of State for Justice (responsible for the prison estate and National Probation Service), Secretary of State for the Home Department (responsible for Immigration Removal Centres), and National Probation Service.
• Primary legal materials considered included Rules 20–22 of the Prison Rules 1999 (medical attention and Rule 21), Rules 33–37 (including Rules 34 and 35) of the Detention Centre Rules 2001, section 59 of the Immigration Act 2016 and the Home Office Adults at Risk guidance, together with relevant Home Office policy documents (Detention Services Order, Adults at Risk policy) and inspection/review reports (Her Majesty’s Inspectorate of Prisons and the Shaw reports).

Nature of the application and issues:

• Nature of application: judicial review challenging (i) the legality of the prison detention scheme because it lacks the Rule 34/35 mechanisms that apply in IRCs, (ii) alleged discrimination contrary to Article 14 ECHR and breach of the Equality Act 2010, and (iii) in AO’s case discrete public law complaints that his detention became unlawful following a Rule 35 report and that delay in providing approved premises rendered his detention unlawful (and related claim for damages arising from alleged unlawful detention). (Remedy sought is not otherwise specified in the judgment.)
• Issues framed by the court: (a) whether the absence in the prison regime of the specific Rule 34/35 procedures produced inherent unfairness or unreasonableness making the prison scheme unlawful; (b) whether that absence gave rise to unlawful discrimination or Equality Act breaches; (c) whether AO’s detention was unlawful under Hardial Singh principles after receipt of a Rule 35(3) report; and (d) whether delay in finding AO approved-premises accommodation was unlawful or discriminatory and whether any public law error made his detention unlawful or gave rise to a Lumba damages claim.

Court’s reasoning and outcome:

• The court examined the statutory and regulatory framework and the practical arrangements for health screening, reporting and information flow in prisons and IRCs. It accepted that Rules 34 and 35 create a specific IRC process for induction medical screening and prompt reporting on vulnerabilities (including suspected torture) to decision-makers, and that inspection and Shaw reports had criticised gaps in practice. However, the court concluded there was no lacuna rendering the prison scheme unlawful: prison healthcare (NHS provision), Rule 21 of the Prison Rules, the Adults at Risk guidance and multiple channels by which medical or other professional evidence can reach Home Office decision-makers provided sufficient capacity to identify and consider vulnerability.
• The court applied the principles in R (Detention Action) v First Tier Tribunal regarding systemic unfairness and concluded the claimants had not shown inherent unfairness in the prison system; the evidential material about the broader run of cases was insufficient. Differences in the two regimes were explained by the different cohorts and settings (prisoners serving sentences versus persons entering detention from liberty), and differential treatment was justified.
• Claims under Article 14 and the Equality Act were dismissed because the regimes were not unlawfully discriminatory and any differential treatment was justified by the materially different situations.
• On AO’s individual detention challenge the court applied the Hardial Singh criteria (and related authority including Lumba and Muqtaar) and found his detention remained lawful: the Rule 35 report did not produce a point at which it was objectively apparent that removal within a reasonable period was impossible. The court accepted that risk of absconding and risk of re-offending justified continued detention.
• On the delay in securing approved-premises accommodation the court considered the evidence from the National Probation Service about processes, MAPPA and regional allocation of approved premises, and concluded the time taken to secure a placement was not unreasonable in the circumstances; there was no Sathanantham breach. A collateral Lumba-based claim for damages failed because any public law error in locating accommodation was not shown to be material to the decision to detain.

The claim was dismissed in its entirety.

The claim is dismissed. The court held that the absence in the prison detention scheme of provisions equivalent to Rules 34 and 35 of the Detention Centre Rules 2001 does not make the prison scheme unlawful; the prison rules, NHS prison healthcare, the Adults at Risk guidance and other information routes provide adequate capacity to identify and report vulnerability. The court also held that there was no unlawful discrimination under Article 14 ECHR or breach of the Equality Act 2010. AO’s detention complied with the Hardial Singh principles and the delay in finding approved-premises accommodation was not unlawfully long; any Lumba damages claim failed because no public law error material to the detention decision was shown.