AH, R (on the application of) v Secretary of State for the Home Department

The Adults at Risk policy requires a practical and properly informed assessment before detention and at each review. That assessment must consider relevant medical history, diagnoses and other material evidence, not merely the detainee’s current presentation. Rule 35 reports are mandatory where its criteria are met, and the system must enable vulnerable detainees to be referred for appropriate assessment and review.

An Article 3 systems duty requires more than a formally adequate framework. The system must operate effectively so as to reduce the relevant risk to a reasonable minimum. Persistent statistical discrepancies, individual experiences and evidence of recurring procedural disconnects may establish systemic failure. The duty remains context-specific and does not require perfection or impose disproportionate burdens.

AH and IS brought joined judicial review claims arising from their immigration detention at Brook House Immigration Removal Centre. Both had serious histories of mental ill health, self-harm and suicidal ideation. Neither was the subject of an effective Rule 35(1) or Rule 35(2) report during the detention periods in issue.

AH challenged the lawfulness of his detention, removal from association, use of force and filmed strip search, and alleged systemic failures under Articles 2 and 3 of the ECHR. IS challenged his detention and related matters; the Secretary of State conceded all grounds except the systems ground. The central issues were whether the Adults at Risk policy and Rule 35 system had been lawfully operated, and whether their implementation amounted to a breach of the Article 3 systems duty.

1. Outcome. AH’s detention was unlawful because the Secretary of State failed to comply with the Adults at Risk policy. The relevant assessments omitted material psychiatric history and did not involve the practical inquiry required where mental health is in issue. Declarations were made on AH’s grounds 1 and 2. IS’s systems claim also succeeded, and the corresponding declaration was made.
2. Rule 35 and the Adults at Risk policy. Rule 35 is mandatory where its criteria are met. An ACDT does not automatically require a Rule 35(1) or Rule 35(2) report, but the system must operate holistically. Current presentation cannot be assessed without regard to relevant past history and diagnoses. The Secretary of State has a duty to seek further information where events give grounds to review the propriety of detention. Repeated self-harm, constant supervision and professional evidence should have prompted further inquiry, Rule 35 consideration and detention review.
3. Article 3 systems duty. The duty requires a legal and regulatory framework and effective implementation sufficient to reduce risk to a reasonable minimum. It is fact- and context-specific. The court must not impose an impossible or disproportionate burden or dictate operational priorities, but a system which exists on paper and is persistently disconnected in operation is insufficient. The strikingly low number of Rule 35(1) and (2) reports compared with ACDTs and constant supervisions, recurring deficiencies identified in oversight material, and the claimants’ experiences established a systemic failure in implementation.
4. Other grounds. AH’s removal from association was unlawful because the necessary delegation under Rule 65 was not established, although the circumstances did justify urgent removal and the necessity challenge failed. Use of force by an officer whose certification had lapsed was unlawful, although the lack of certification made no material difference to the treatment. Filming the strip search breached policy and Article 8. In principle, unlawful force arising from unlawful detention gave AH an entitlement to damages for assault; the extent of force and lack of material difference remained relevant to quantum.
5. The court declined to order a further investigation or an order requiring a second inquiry into the Secretary of State’s response to the Brook House Inquiry.

First-instance joined judicial review claims. In IS’s earlier, separate detention proceedings, [2019] EWHC 2700 (Admin) had found part of his detention and constant supervision unlawful; that decision was not under appeal in these proceedings.