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

The absence of mechanisms equivalent to rules 34 and 35 of the Detention Centre Rules 2001 for immigration detainees held in prisons does not, without more, make the prison detention scheme unlawful. The court must assess the scheme as a whole, including the information available from prison healthcare and the operation of the adults-at-risk guidance.

A system is not inherently unfair merely because it could be improved. A challenge based on systemic unfairness must address the full run of cases and show unfairness inherent in the system. Different treatment of prison detainees and detainees in immigration removal centres may be justified by the different routes into detention and risk profiles of the two cohorts. A public-law error concerning bail accommodation does not establish unlawful detention unless it bears upon and is relevant to the decision to detain.

Two foreign national offenders challenged the lawfulness of the arrangements governing immigration detainees held in the prison estate. They argued that the absence of provisions equivalent to rules 34 and 35 of the Detention Centre Rules 2001 created inherent unfairness, irrationality, discrimination under article 14 of the European Convention on Human Rights and breaches of the Equality Act 2010.

AO also challenged the continuation of his detention after a rule 35 report identified torture and mental-health concerns, and alleged unreasonable delay in securing approved premises after immigration bail had been granted in principle. The central questions were whether the prison scheme was unlawful, whether AO’s detention breached the Hardial Singh principles, and whether delay in obtaining accommodation was unlawful or discriminatory.

1. The principal challenge failed. The fact that rule 35 of the Detention Centre Rules 2001 applies in immigration removal centres but not prisons did not establish that the prison scheme was unlawful. The relevant cohorts and routes into detention were materially different.

2. Immigration detainees entering prison will generally have undergone NHS health screening during custody. Before the end of a custodial sentence, application of the adults-at-risk guidance requires consideration of medical evidence, and further evidence should be requested where necessary. The Secretary of State also received information through healthcare, ACCT reviews and other sources. The evidence did not establish an inherent defect in the system, although it might be capable of improvement.

3. The systemic fairness principles summarised in R (Detention Action) v First Tier Tribunal (Immigration and Asylum Chamber) and others [2015] 1 WLR 5341 were not satisfied. The claimants had not demonstrated unfairness across the full run of cases, and the evidence of seven individual cases was insufficient. The absence of equivalent rules did not amount to inherent unfairness or unreasonableness.

4. The discrimination claims failed. The two regimes and cohorts were not properly comparable, or the differential treatment was justified by their different characteristics. No breach of article 14 or the Equality Act 2010 was established.

5. AO’s detention remained lawful under the Hardial Singh principles. The rule 35 report did not alter the detention decision because countervailing considerations remained. His offending history supported significant risks of absconding and reoffending, and it was never objectively apparent that removal could not be effected within a reasonable period.

6. The delay in securing approved premises was not unreasonable. The search was complicated by AO’s risk profile, exclusion-zone requirements, regional probation arrangements and the need to protect him from risks posed by other residents. Further, any breach concerning accommodation would not satisfy the Lumba requirement that the public-law error bear upon and be relevant to the decision to detain.

7. The claim failed in its entirety.