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

This appeal concerned the absence in the Prison Rules of a mechanism equivalent to Rules 34 and 35 of the Detention Centre Rules for immigration detainees held in Her Majesty's Prisons, and whether that absence produced systemic unfairness, irrationality or unlawfulness in the individual cases of MR and AO. The court considered the Immigration Act 2016 adults-at-risk guidance, the operation of Rule 21 of the Prison Rules, and the SSHD's policy on "Adults at risk in immigration detention".

The court held that (i) there was insufficient evidence to establish systemic unfairness in the general run of cases; (ii) in the individual cases of MR and AO it was irrational for the SSHD not to ensure that medical concerns about past torture were obtained (and the court declared that irrationality in those two cases); but (iii) that unlawfulness did not "bear on and was relevant to" the detention decisions so as to render their immigration detention unlawful and therefore claims for false imprisonment failed. Claims under article 14 ECHR, indirect discrimination and breach of the public sector equality duty were rejected. The court admitted as fresh evidence the Chief Inspector's report of April 2020 and allowed a late Respondents' Notice.

Background and parties. The appellants, MR (a Pakistani national) and AO (a Nigerian national), sought judicial review of the SSHD and SSJ concerning the lack of a Rule 35 equivalent for immigration detainees held in prisons, and also claimed damages for false imprisonment, breaches of article 14 ECHR, and breaches of the Equality Act 2010 and its public sector equality duty. The claims were heard in the Administrative Court (Supperstone J, [2019] EWHC 3567 (Admin)) and the appellants appealed to the Court of Appeal.

Nature of relief sought. Declaratory and quashing relief by judicial review, damages for false imprisonment, and declaratory/compensation remedies for alleged discrimination and breaches of the public sector equality duty.

Procedural posture. Appeal from Supperstone J ([2019] EWHC 3567 (Admin)). The Court of Appeal heard argument on a number of issues, admitted as fresh evidence the Chief Inspector of Borders and Immigration's 29 April 2020 report and granted permission for a late Respondents' Notice.

Issues framed by the court.

• whether absence of a Rule 35 equivalent in Prison Rules caused systemic unfairness;
• whether the failure to obtain medical evidence of past torture in MR and AO's cases was irrational;
• whether that failure rendered MR and AO's immigration detention unlawful entitling them to damages for false imprisonment;
• whether there was unlawful discrimination under article 14 ECHR or the Equality Act 2010 (including the public sector equality duty).

Court's reasoning and conclusions. The court summarised relevant legal principles on immigration detention, false imprisonment, and the proper tests for systemic unfairness (R (Detention Action) and related authorities). On systemic unfairness the court applied the high threshold identified in R (Detention Action) and similar authorities and concluded the appellants had not shown unfairness inherent in the whole system: there was an operative system in prisons involving Home Office criminal casework teams, gatekeeper reviews, prison healthcare screening and the ACCT process, and the available evidence did not establish a general incapacity to react appropriately in the run of cases.

On the individual cases the court nevertheless found it irrational (and therefore unlawful in so far as decision-making must be rational) that the SSHD required information about vulnerability including past torture but did not ensure medical concerns about torture were obtained for MR and AO at the commencement of or during their immigration detention. The court declared that irrationality in each appellant's case and noted the SSHD was developing measures to address the gap. However, the court concluded that the absence of a Rule 35 report did not "bear upon" or materially affect the decision to detain because both appellants were correctly identified as level 2 Adults at Risk and immigration control factors would have outweighed any change; accordingly claims for false imprisonment failed and, had detention been unlawful, damages would have been nominal. The discrimination and public sector equality duty claims were dismissed because the cohorts (IRC detainees and prison detainees) were not analogous and the appellants did not identify the necessary specific disadvantage or relevant public function.

Remedy and wider context. The court dismissed the appeal save that it allowed it in part by making a declaration of irrational failure to obtain medical evidence of past torture in the cases of MR and AO; it did not award damages for unlawful detention. The court noted the admitted fresh Chief Inspector report supported the need for a Rule 35 equivalent but emphasised the distinction between individual irrationality and systemic unfairness.

Appeal allowed in part. The Court of Appeal dismissed the appellants' challenge to the system as not showing systemic unfairness, but allowed the appeal in part by declaring that in the individual cases of MR and AO it was irrational for the SSHD not to obtain medical concerns about past torture needed to operate the adults-at-risk policy. The court dismissed claims for false imprisonment, article 14 ECHR, indirect discrimination and breach of the public sector equality duty because the absence of such reports did not bear on the detention decisions and the cohorts were not analogous or the appellants had not identified the required disadvantage.

Appeal from the Administrative Court (Supperstone J) ([2019] EWHC 3567 (Admin)) to the Court of Appeal (Civil Division), neutral citation [2021] EWCA Civ 541. The Court of Appeal admitted fresh evidence (Chief Inspector report, 29 April 2020) and allowed a late Respondents' Notice before determining the appeal.