MR (Pakistan) & Anor v Secretary of State for Justice & Orse

Systemic unfairness requires unfairness inherent in the system, demonstrated across its general operation and exceeding isolated individual errors. The absence of a Rule 35 equivalent for immigration detainees held in prisons did not meet that high threshold. However, where the Secretary of State’s policy required information about vulnerability, it was irrational in the individual cases not to ensure that medical concerns about past torture were obtained. That failure did not make detention unlawful because it did not bear upon the detention decisions. Prison and immigration-removal-centre detainees were not in a relevantly analogous situation for article 14 purposes. The indirect-discrimination and public-sector-equality-duty claims also failed.

MR and AO challenged the arrangements for identifying vulnerability among immigration detainees held in prisons, arguing that the absence of a mechanism equivalent to Rules 34 and 35 of the Detention Centre Rules 2001 was systemically unfair and irrational. They also claimed false imprisonment, discrimination under article 14 of the ECHR and the Equality Act 2010, and breach of the public sector equality duty.

Supperstone J dismissed the claims in the Administrative Court under [2019] EWHC 3567 (Admin), reported at [2020] 4 WLR 39. The appeal concerned whether the prison regime was unlawful generally and whether it had operated unlawfully in the individual cases, together with fresh evidence and procedural issues.

The appeal was allowed in part. The Court dismissed the systemic unfairness, false imprisonment, article 14, indirect discrimination and public-sector-equality-duty grounds, but declared that there had been an irrational failure in the individual cases to obtain medical concerns about past torture needed to operate the Secretary of State’s policy.

1. Fresh evidence. The Chief Inspector’s later report was admitted under the Ladd v Marshall principles, as glossed in Terluk v Berezovsky [2011] EWCA Civ 1534. It could not reasonably have been obtained earlier, was credible and could have influenced the result. The objection based on article 9 of the Bill of Rights was unsustainable.
2. Systemic unfairness. The governing approach, stated in R (Detention Action) v First-tier Tribunal [2015] EWCA Civ 840, required examination of the full run of cases, proof of inherent unfairness rather than isolated error, and consideration of whether the system could react appropriately. The threshold was high. Although the prison arrangements had a weakness, the evidence did not establish unfairness in the general run of cases. Existing Home Office casework, medical-record and detention-review arrangements obtained relevant information, and the particular evidence did not show that a Rule 35 equivalent would have altered detention decisions.
3. Individual irrationality. Section 59 of the Immigration Act 2016 required guidance concerning vulnerable detainees. The Secretary of State’s policy recognised past torture as a vulnerability. Given the known reluctance of torture survivors to volunteer such experiences, it was irrational in MR’s and AO’s cases to require vulnerability information while making no adequate attempt to obtain medical concerns about torture.
4. Detention and discrimination. Under Kambadzi v Secretary of State for the Home Department [2011] 1 WLR 1299, an illegality affected detention only if it bore upon and was relevant to the detention decision. The failure here was relevant in a broad sense but did not bear upon the decisions, because both men were already treated as level 2 Adults at Risk and immigration-control factors independently justified continued detention. Prison and immigration-removal-centre detainees were not in a relevantly similar situation, and the Equality Act 2010 claims lacked the required particular disadvantage or identified relevant function.
5. Remedy. The Court declared the individual irrationality and left it to the Secretary of State to devise an appropriate future system; the court would not design that administrative system itself.

1. Court of Appeal (Civil Division) — allowed the appeal only to declare an irrational failure to obtain medical concerns about past torture; dismissed the remaining grounds: [2021] EWCA Civ 541.
2. Administrative Court, Queen’s Bench Division — Supperstone J dismissed the judicial-review claims: [2019] EWHC 3567 (Admin), reported at [2020] 4 WLR 39.