SM, R (On the Application Of) v Bail for Immigration Detainees

For Article 14 purposes, immigration detainees held in prisons constitute a relevant class with an “other status” independent of the treatment complained of. The comparison must address the particular disadvantage alleged, rather than whether the two detention regimes are identical. Where the complaint concerns initial publicly funded legal advice, prison detainees are in an analogous position to detainees held in immigration removal centres. The relevant question is whether the absence of a functional equivalent to the Detained Duty Advice Scheme is manifestly without reasonable foundation. Operational differences may justify a different delivery method, but they do not justify withholding equivalent initial advice without adequate evidence. The claim therefore succeeded.

The claimant was detained under Immigration Act powers in prison after completing a sentence of imprisonment. Unlike immigration detainees held in immigration removal centres, he did not have access to the Detained Duty Advice Scheme, which provided up to 30 minutes of initial legal advice without reference to financial eligibility and on an assumed satisfaction of the merits test.

He sought judicial review of the Lord Chancellor’s failure to provide an equivalent service for immigration detainees held in prisons. The claim alleged discrimination contrary to Article 14 of the Convention, read with Articles 2, 3, 5 and 8. The central issues were whether the claimant had an “other status”, whether the two groups were in analogous positions, and whether the difference in treatment was justified.

1. Claim succeeded. The court was minded, subject to representations on remedy, to make a declaration that failure to provide immigration detainees held in prisons with access to publicly funded legal advice equivalent in extent to that available under the DDAS breached Convention rights.
2. “Other status” under Article 14 has a flexible scope. The status must exist independently of the treatment complained of. The class of immigration detainees held in prisons satisfied that requirement because the criteria governing detention in prison identified a class of personal or identifiable characteristics.
3. The correct comparison was driven by the claimant’s particular complaint. The issue was not whether a surgery scheme identical to the DDAS could operate in prisons. It was whether detainees held in prisons could obtain initial publicly funded legal advice, including advice on bail and matters affecting the legality or continuation of detention, without the ordinary financial and merits conditions. In relation to that function, the two groups were in analogous positions.
4. The applicable justification standard was whether the difference in treatment was manifestly without reasonable foundation, following R (Public Law Project) v Lord Chancellor [2016] AC 1531. The court accepted that prison conditions, staffing requirements, dispersed detainee populations and the impracticability of replicating face-to-face DDAS surgeries were relevant. Those matters addressed the form of delivery, not the underlying function.
5. The evidence did not show that a functional equivalent, including a suitable telephone-based service, was impracticable or unavailable. The existing consideration of the Civil Legal Advice Operator System did not adequately address the provision of legal advice and was unsuitable for detainees without unrestricted telephone access. The current difference in treatment was therefore not justified.

First-instance judicial review in the Administrative Court. No earlier decision in the same proceedings is stated in the judgment.