The detention of immigration detainees on the prison estate is not inherently unfair or unlawful, according to Mr Justice Supperstone in R (MR (Pakistan)) v Justice Secretary  4 W.L.R. 39.
The two Claimants (‘AO’ and ‘MR’) were foreign nationals who had been convicted of criminal offences in the UK and sentenced to terms of imprisonment. After serving their terms, they were detained in prison but under immigration powers.
They brought a judicial review claim challenging the lawfulness of their detention on the prison estate and the underlying scheme which governed it, primarily on the basis that the Prison Rules 1999 did not contain equivalent protections to the Detention Centre Rules 2001, which apply in Immigration Removal Centres (‘IRCs’) .
The Claimants argued that despite reporting signs of torture to prison healthcare, they failed to pass this information to the Home Office so that their detention would be reviewed in a timely manner. They claimed that the system of immigration detention in prison was systemically unlawful and discriminated against those detainees held in prison as opposed to IRCs.
The 2001 Rules provide for an initial medical check within 24 hours of entering into detention at an IRC and for medical reports to be made on persons who may be adversely affected by detention or who may be victims of torture (rules 34 and 35, respectively). While these rules are far from perfect in their application at IRCs, the closest provision in the Prison Rules 1999 did not create a systematic means of identifying possible victims of torture and reviewing the effect of their continued detention.
The High Court judgment
The Court rejected the Claimant’s challenge. Its key reasons were:
- Detainees in both prisons and IRCs had access to the same levels of healthcare services delivered via NHS England;
- The Defendants were justified in treating the two categories of detainee differently. Persons detained in IRCs mostly come in after being at liberty. The Home Office may have very little information about their healthcare needs at that point. By contrast, those persons detained in prison following custodial sentences should already have prison healthcare records for the Home Office to consider. They are also more likely to present a risk of absconding / re-offending upon release (§§ 94 to 95);
- The Court applied the established test for showing that an administrative system was inherently unfair and unlawful, as discussed in R (Detention Action) v First Tier Tribunal (Immigration and Asylum Chamber) and others  1 WLR 5341 at § 27. Here, the evidence did not cover the full run of cases in the system under challenge and the Home Office was sufficiently aware of the Claimants’ medical information during their periods of detention (§ 99);
- There was nothing inherently unfair or unlawful about the prison regime as it applied to immigration detainees, even if it required some improvements. There was therefore no breach of the common law duty of fairness, the prohibition on discrimination in Article 14 of the ECHR and/or breaches of the Equality Act 2010. The Claimants were not comparing like with like given the different circumstances as between the two categories of immigration detainee (§§ 102 to 104);
- The Court rejected further claims by the Claimants that their periods of detention had become unlawful by reference to the common law principles as set out by Woolf J, as he was, at §§ 7 to 8 in R v Governor of Durham Prison, ex p. Hardial Singh  1 WLR 704.
Mounting a systemic challenge to a government policy or administrative scheme is not without its difficulties for claimants. This case highlights the importance of gathering sufficient evidence to make good the assertion that a scheme is inherently unlawful (and therefore incapable of being operated lawfully). It is also an example of the High Court’s reluctance to compare dissimilar categories of cases in claims that are based on unlawful discrimination, whether under human rights or equality law.
The Claimants were represented by Hugh Southey QC and Raza Halim instructed by Duncan Lewis.