Ahmed Lawal, R (on the application of) v The Secretary of State for the Home Department

Article 2 requires the Secretary of State and immigration-detention service providers to take reasonable initial steps to secure evidence concerning a suspicious death in detention. Those steps form part of the investigative process, even though the later investigation must be independent.

The minimum obligations include identifying potentially relevant detainees, securing their statements and contact details, ascertaining their willingness to give evidence, and considering evidence by return to the United Kingdom or video-link. The coroner need not approve every removal. Policies are unlawful where they create a real risk that these obligations will not be met.

The applicant was detained pending removal to Nigeria at an immigration removal centre when another detainee died. He claimed to have relevant evidence but no statement was taken before removal directions were set. The judicial review challenged both the decision to remove him and the Secretary of State’s policies concerning deaths in immigration detention and removals.

The Upper Tribunal considered the scope of the procedural duty under Article 2, the role of the coroner, the effect of the inability to compel witnesses outside England and Wales, and whether the relevant policies adequately protected the investigative process.

1. Article 2 duty. The procedural obligation extends across the whole investigative process, from the initial securing of evidence to the independent investigation or inquest. The Secretary of State and detention-centre providers must therefore take initial evidential steps, despite not being responsible for the subsequent independent investigation. The steps required are objectively reasonable ones, assessed in the circumstances of the death and with regard to the nature and purpose of immigration detention ([64]-[66]).
2. Minimum obligations. The irreducible minimum obligations are to identify whether detainees have relevant evidence; record or facilitate statements; determine willingness to give evidence; record contact details, including abroad; and consider whether evidence can be given on return to the United Kingdom or by video-link. Liaison with the police, PPO and coroner may be necessary, but the coroner need not approve every removal ([73]-[76]).
3. Compellability and removal. The inability to compel a witness outside England and Wales is a factor in the overall assessment, not an absolute bar to removal. The Secretary of State must retain judgment in the individual case, while remaining open to legal challenge if the response is unreasonable ([74]-[76]).
4. Policies. The June 2016 version of the Detention Services Order created an unacceptable risk of failure to secure relevant detainee evidence. The applicant’s proposed removal was therefore unlawful. The August 2020 version remained deficient because it did not require staff actively to identify detainees who might have relevant information, whether or not they came forward. The absence of a removal policy requiring officials to consider such evidence and the practical means of obtaining it also breached Article 2 ([77]-[87]).
5. The Tribunal made declarations that the August 2020 detention policy and the absence of an adequate removal policy were unlawful. No anonymity direction was made ([84]-[88]).

• High Court: The judicial review was transferred to the Upper Tribunal under section 31A(2) of the Senior Courts Act 1981. Interim relief applications were considered by the High Court and Court of Appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Permission was granted and the claim was determined. The Tribunal declared aspects of the respondent’s policies unlawful and held that the proposed removal decision was unlawful.