As reported in the Guardian, a female Kenyan asylum seeker has won her challenge to the Home Office’s decision to segregate her in a ‘punishment room’ for 28 hours while she was being held in immigration detention.

‘Segregation’ is effectively a form of solitary confinement used to punish immigration detainees who may not have committed any crime, who are indefinitely detained and often beyond the reach of lawyers.

According to the woman in this case, whose mental health was said to have deteriorated:

There was no bedding and just a rusty toilet in the cell they put me in. I was freezing cold.”

Her legal challenge (R (Muasa) v Secretary of State for the Home Department (2017)) focused on the use of rule 40 of the Detention Centre Rules 2001, which provides the government with power to authorise segregation of a person in immigration detention.

Segregation (also known as ‘removal from association’) can only be done:

Where it appears necessary in the interests of security or safety that a detained person should not associate with other detained persons, either generally or for particular purposes…

After the initial 24 hours of segregation, authorisation must be obtained by the Secretary of State and any further period must not exceed 14 days.

A related power exists in rule 42 which enables the Home Office to confine a violent or disruptive detainee to a special unit.

The over-use of these powers is coming under renewed scrutiny. Last month independent inspectors at Heathrow Immigration Removal Centre condemned the practices as ‘inhumane’ when applied to vulnerable individuals and recommended that the Home Office urgently reviews the scale of the issue. A detailed report by Medical Justice in 2015 estimated that up to 4,800 persons receive this punishment every year.

I haven’t seen the full judgment but a summary is available here via Lawtel.

A few points to note:

  • The authorisation of segregation, unless urgent, had to be granted independently of the immigration removal centre and its employees;
  • Alarmingly, the case seems to have turned on a basic error in the paperwork. The first 24 hours of segregation was found to be lawful because a Home Office official had completed and signed the appropriate form.
  • The back of the form where there was space for authorisation beyond 24 hours had not been completed properly and the Judge was not prepared to give the Home Office the benefit of the doubt. The lack of properly evidenced authorisation rendered the further segregation after 24 hours unlawful.
  • Good use was made of the right to private and family life in Article 8 of the European Convention on Human Rights, which the Home Office had breached by segregating the woman without authority.
  • Although at the time of the legal challenge the Home Office lacked any published policy on the use of segregation in immigration detention (unlike the detailed guidance on the use of similar measures in prisons), by the end of the case it had produced and published new procedural guidance, highlighting that the punishment should be a measure of last resort.

The summary does not specify whether the claimant was entitled to compensation or not – that might have been left for another hearing.

This is unlikely to be the last word on the subject given the scale and seriousness of the punishments in use at detention centres and problems with the process of identifying vulnerable detainees. I will try to post an update once the full judgment is available.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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