England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 December 2007

The Deputy Judge:

Introduction

1. The issue that arises in this case is whether the Immigration Service has acted unlawfully by failing to provide safe accommodation for the Claimant in an Immigration Removal Centre.

Factual background

2. The Claimant is a Jamaican national. On 21 June 2002 he entered the United Kingdom as a visitor and was granted leave to remain for 6 months until 21 December 2002. On 17 December 2002 he submitted an application for leave to remain as a student, which was granted on 24 January 2003. This leave expired on 31 December 2003. No further attempts were made by the Claimant to regularise his stay in the United Kingdom until he claimed asylum on 12 February 2007.
3. In March 2005 the Claimant was charged with the murder of a 21 year old woman and conspiracy to burgle with intent to steal. He was acquitted of murder, but on 1 November 2006 he was convicted of conspiracy to burgle. On 3 November 2006 the Claimant was sentenced to 2 years imprisonment.
4. On 9 November 2006 the Defendant decided to make a Deportation Order against the Claimant. On 28 November 2006 a Deportation Order was signed in relation to the Claimant pursuant to Section 5(1) of the Immigration Act 1971 ("the 1971 Act") on the basis that his presence in the United Kingdom is not conducive to the public good. On 1 December 2006 the Claimant became eligible for release having served much of his sentence on remand. He was served with the Deportation Order on 4 December 2006 and was detailed at HMP Belmarsh pursuant to the powers in the 1971 Act.
5. The Claimant has been a registered police informer for a number of years. He has provided significant information which has resulted in the arrest and conviction of a number of persons for offences relating to drugs and firearms. The fact that he was a police informer became known during his trial.
6. While detained at HMP Belmarsh the Claimant was physically assaulted on two occasions, as well as being verbally threatened. He was detained in the Vulnerable Prisoner Unit ("VPU") as a consequence of the assaults and threats.
7. On 22 March 2007 his representatives wrote to request that he be transferred to an Immigration Removal Centre ("IRC"). On 27 March 2007 he was transferred to Dover IRC.
8. After his arrival at Dover IRC a risk assessment was undertaken which concluded that he could not be detained there due to the risk that other detainees would seriously assault him. He was threatened with assault during his detention at Dover IRC. He informed Mr A. Dunford, Senior Officer, Reception, on 28 March 2007 that "He was afraid to go into a multi-occupancy room as he feared for his life if he was recognised. … [He said] that it was common knowledge among the Jamaican community in London that he was an informer and because of his actions his co-defendant was now serving a Life Sentence." (Bundle, p.61). In a form of the same date dealing with changes to risk factors it is stated that "This detainee has been located in our separation unit for his own protection because he has been identified by other detainees (Ex Prisoners) that he is a police grass. We are unable to put him back on normal location. Several detainees have shown an interest at getting to him. Whilst in prison he was located in the vulnerable prisoners unit. This was to HMP Belmarsh which is where he came from yesterday but was also located in the VP wing at HMP Pentonville. The Duty Manager has requested that he be moved to a different centre ASAP." (Bundle, p.162).
9. On 2 April 2007, as a result of this risk assessment, the Claimant was moved to HMP High Down. He was accommodated from time to time in a shared cell with convicted prisoners. On 27 April 2007 he complained that his cellmate has been smoking cannabis and so exacerbated his asthma. On 30 April 2007 he was attacked by a convicted prisoner with whom he was sharing a cell. Riot equipped officers were required to enter the cell to protect the Claimant. The Claimant's solicitors made repeated requests for him to be returned to an IRC. On 11 July 2007 Ms. Bernice Ouseley, Chief Immigration Officer, confirmed to the Claimant's solicitors that the Claimant was being held in the VPU for his own protection. The letter went on to state that "Although there are at present no VPUs in any of the Immigration Removal Centres, we have reviewed his detention and are transferring him to Colnbrook Removal Centre this week. We will continue to monitor his safety in detention". On the day, 12 July 2007, the Claimant was transferred to Colnbrook IRC.
10. On his arrival at Colnbrook IRC senior management conducted a security assessment in relation to the Claimant's detention and determined that the risk to his safety was too great to allow him to remain there. The assessment dated 13 July 2007 stated that the Claimant "is considered a risk to anyone concerned in his trial. He is at risk from fellow Caribbean nationals who recognise him for what he is and their extreme interest in him whilst at Dover IRC caused his move back to HMP. This Centre has a high Caribbean population and they emanate largely from the London Prisons. It is highly likely that [T] will be recognised and be under the same threat that has caused him so much time on protection previously. This Centre cannot provide for long term protective custody. Currently [T] is on single room occupancy blocking a bed in [Short Term Holding Facility]. He is not allowed to associate with Afro-Caribbeans. This status can only be temporary and I therefore request an Immediate return to a Prison for his own safety" (Bundle, p.202). Following this assessment the Claimant was transferred back to HMP High Down.
11. At HMP High Down the Claimant was, on his return, detained in the VPU. However he became concerned that another person in the Unit was aware that he was a police informant and he consequently became concerned for his safety. At his request he was, on 16 August 2007, temporarily transferred to the Segregation Unit. Thereafter, on 17 September 2007, due to the limited spaces within the Segregation Unit, the Claimant was transferred to HMP Lewes, where he is presently detained.
12. The Claimant's asylum claim was refused on 28 August 2007. He has appealed that decision and I am informed that the appeal is to be heard on 10 January 2008.

The Legal and Policy Framework

Detention under the Immigration Acts

13. A person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good (Section 3(5)(a) of the 1971 Act). Where such a person is liable to deportation, then the Secretary of State may make a deportation order against him (Section 5(1) of the 1971 Act). Where a deportation order is in force against any person, that person may be detained pending his removal or departure from the United Kingdom (para 2(3) of Schedule 3 to the 1971 Act).
14. Detention may be in police cells (albeit briefly), detention accommodation, local prisons or discrete accommodation provided by the Prison Service (Immigration (Places of Detention) Direction 2004).
15. The Defendant's Operational Enforcement Manual ("OEM") provides at para 38.10.1 ("Criteria for detention in prison") that:

"Immigration detainees should only be held in prison establishments when they present specific risk factors that indicate they are unsuitable for immigration removal centres, for reasons of security or control. Immigration detainees will only normally be held in prison accommodation in the following circumstances:

National security – where there is specific (verified) information that a person is a member of a terrorist group or has been engaged in terrorist activities

Criminality – those detainees who have completed prison sentences of 4 years or more, have been involved in the importation of Class A drugs, committed serious offences involving violence, or committed a serious sexual offence requiring registration on the Sex Offenders Register

Security – where the detainee has escaped or attempted to escape from prison, prison or immigration custody, or planned or assisted others to do so

Control – engagement in serious disorder, arson, violence or damage, or planning or assisting others to so engage

When a detainee meets the above criteria DEPMU will refer them to the Population Management Unit (PMU) of the National Offender Management Service (NOMS) who will consider their allocation to a prison.

…

All cases who have completed a prison sentence will be assessed by DEPMU on an individual basis as to whether they should remain in prison or be transferred to an IS removal centre. Any individual may request a transfer from prison to an IS removal centre and, if rejected by DEPMU, will be given reasons for this decision."

16. Similarly paragraph 5.1 of PSO 4630 ("Immigration and Foreign Nationals in Prison") provides that immigration detainees will only normally be held in prison accommodation when the same four criteria apply as in paragraph 38.10.1 of the OEM, namely national security, criminality, security and control.
17. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) have adopted the CPT standard (Revised 2006). The seventh General Report states that:

"28. On occasion, CPT delegations have found immigration detainees held in Prisons. Even if the actual conditions of detention for these persons in the establishments concerned are adequate – which has not always been the case – the CPT considers such an approach to be fundamentally flawed. A prison is by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offence.

Admittedly, in certain exceptional cases, it might be appropriate to hold an immigration detainee in a prison, because of a known potential for violence. Further an immigration detainee in need of in-patient treatment might have to be accommodated temporarily in a prison health-care facility, in the event of no other secure hospital facility being available. However such detainees should be held quite separately from prisoners, whether on remand or convicted.

29. In the view of the CPT, in those cases where it is deemed necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably-qualified personnel. The committee is pleased to note that such an approach is increasingly being following in Parties to the Convention. …"

18. UN Commission on Human Rights Working Group on Arbitrary Detention, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment regarding the situation of immigrants and asylum seekers (UNDOC. E/CN.4/2000/4/Annex 2 (1999)) agreed a set of principles in order to determine the arbitrary character of the custody of aliens. Principle 9 provides that:

"Custody must be effected in a public establishment specifically intended for this purpose; when, for practical purposes, this is not the case the asylum-seeker or immigrant must be placed in premises separate from those for persons imprisoned under criminal law."

Conditions of Detention in Prison

19. Persons detained only under the Immigration Act must be treated as unconvicted prisoners, with the same status and privileges. (Rule 3.9 of PSO 4630).
20. Unconvicted prisoners "should be kept out of contact with convicted prisoners as far as the governor considers it can reasonably be done" (Regulation 7(2) of the Prison Rules 1999 (S.I. 1999/728)); and see the same requirement in para 1.4 of PSO 4600 ("Unconvicted, Unsentenced and Civil Prisoners").
21. An unconvicted prisoner is entitled to receive as many visits as he or she wishes within such limits as directed by the Secretary of State (either generally or in a specific case) (Rule 35(1) of the Prison Rules 1999).
22. The sharing of activities by unconvicted prisoners with convicted prisoners is acceptable, provided that such activities are supervised (para 1.6 of PSO 4600). Annex B of PSO 4600, which lists the special rights and privileges afforded to unconvicted prisoners, states:

"These special privileges are not absolute and can be tempered by consideration of security, operational need and practical considerations".

Conditions of Detention in an IRC

23. Section 153 of the Immigration and Asylum Act 1999 empowers the Secretary of State to make rules for the regulation and management of IRCs. The Secretary of State has made the Detention Centre Rules 2001 (S.I. 2001/238).
24. Rule 3(1) sets out the stated aim of IRCs, stating:

"The purpose of detention centres shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and the right to individual expression".

25. Rule 26(1) provides:

"In accordance with rules 27, 28 and 57, detained persons shall be entitled to enjoy family life by way of visits from, or communication with, family members living outside the detention centre, save to the extent necessary in the interests of security or safety".

26. Rule 28(1) deals specifically with visits in identical terms as used in rule 25(1) of the Prison Rules 1999:

"Every detained person may receive as many visits as he wishes within such reasonable limit and subject to such reasonable conditions as the Secretary of State may direct, either generally or in a particular case".

Convention Rights

27. Article 2 of the European Convention on Human Rights ("the Convention") provides that everyone's life shall be protected by law. Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard those within its jurisdiction. The State is under an obligation to take particular steps to protect those categories of persons who are vulnerable, such as prisoners: R (Amin) v. Secretary of State for the Home Department [2004] 1 AC 653.
28. Article 3 of the Convention prohibits torture or inhuman or degrading treatment. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case including the duration of the treatment, its physical or mental effects and in some cases, the sex, age and state of health of the victim. Article 3 is in absolute terms but where a positive obligation is implied under Article 3 it will not be absolute but subject to considerations of proportionality: (see, for example, R (Munjaz) v. Mersey Care NHS Trust [2005] UKHL 58 at para 78, Lord Hope).
29. In detaining an individual the State takes on an obligation under Article 3 to maintain a continuous review of detention arrangements to ensure the health and well-being of prisoners (Keenan v. United Kingdom [2001] 33 EHRR 38).
30. Article 5 of the Convention prohibits the deprivation of a person's liberty except in accordance with law and on prescribed grounds. The relevant ground in the present case is "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or as a person against whom action is being taken with a view to deportation or extradition".
31. Article 8 of the Convention guarantees the right to respect for a person's private and family life, his home and correspondence.

Submissions

32. Mr Philip Coppel, for the Secretary of State, accepts that the Claimant, as a detainee, falls within a class of person to whom she has a particular obligation under Articles 2 and 3 to ensure their safety, health and well-being. It is common ground that there is an obligation on the Defendant to take reasonable steps to protect the Claimant.
33. Mr Coppel submits that it is precisely because of these obligations and the Defendant's inability to guarantee the Claimant's safety and security in an IRC that the Claimant is held in prison and not in an IRC. There are no suitable facilities within any of the IRCs to ensure that the Claimant is kept safe and secure whilst being detained there. The detention of the Claimant within an IRC in the absence of such guarantees of safety for the Claimant would itself have the potential to infringe his rights under Article 2 and/or 3, whereas the current detention of the Claimant in prison does not in itself infringe Articles 2 or 3. Neither Article 2 nor Article 3 demands that the State's positive obligation to ensure the Claimant's safety and security must be exercised by detaining him in an IRC rather than a prison.
34. Mr Southey, on behalf of the Claimant, does not suggest that the Defendant's actions have breached Articles 2 or 3. He submits that the duty to protect is not absolute and that it must accommodate other rights such as those protected by Article 8 of the Convention (Osman v. United Kingdom [2000] 29 EHRR 245 at para 116). The need to provide protected cannot justify a failure to comply with other Convention rights. He submits that the fact that there have been a number of assaults on the Claimant whilst he has been in prison suggests there is nothing inherently better about the protection that can be provided in a prison. Mr Southey submits that Article 3 does not merely require the State to protect persons against violence at the hands of others. It also requires the State to ensure that prison conditions do not cause unnecessary suffering. The State must avoid subjecting a detainee to a penal regime that will cause him to suffer when his behaviour has not justified that regime.
35. In my judgment the decisions of the European Court in Kalashnikov v. Russia [2003] 36 EHRR 34 and Iwanczuk v. Poland [2004] 38 EHRR 8, on which Mr Southey relies in support of his Article 3 submission, do not assist him. In Kalashnikov v. Russia the Court held that:

"… the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention …" (para 95).

In that case the applicant's conditions of detention "in particular the severely overcrowded and insanitary environment had its detrimental effect on the applicant's health and well-being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment" (para 101).

36. Iwanczuk v. Poland concerned a Polish national who was detained on remand. He alleged that he was verbally ridiculed and ordered to strip and to undergo a body search in order to be granted permission to use the voting facilities in the prison. The Court held that there had been a violation of Article 3 of the Convention.
37. Mr Coppel submits, and I agree, that neither of these decisions support the conclusion that the detention of an individual in a VPU or other similar secure unit at a prison, for their own protection and on the basis that they are treated as an unconvicted prisoner, could cause such humiliation or suffering at the minimum level of severity required by Article 3; nor do they support the proposition that the State's positive obligation to ensure the Claimant's safety and security must be exercised by detaining him in an IRC subject to increased safeguards on the model of a VPU or otherwise, for example by placing detainees who might be a threat to the Claimant at other removal centres.

Article 5 of the Convention

38. Mr Southey further submits that there is a breach of Article 5(1) of the Convention by detaining the Claimant in a prison. In support of this submission he relies on dicta of the European Court in Aerts v. Belgium [2000] 29 EHRR 50 in which the Court held that there was a violation of Article 5(1) despite there being no violation of Article 3 (paragraphs 50 and 67). The Court said that:

"… there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention." (para 46).

Mr Southey submits that it follows that immigration detainees should be held in immigration detention centres and prisoners should be held in prisons. Further support for this submission is to be found, he says, in the CPT standards (see paragraph 17 above) which are relevant when considering whether there has been compliance with the European Convention on Human Rights (Yakovenko v. Ukraine, Application No. 15825/06 at paragraph 108); and Principle 9 of the UN document (referred to in paragraph 18 above which is also relevant to the interpretation of the European Convention: see The United Kingdom [2000] 30 EHRR 121 at paragraph 73).

39. There must be "some relationship" between the grounds for detention and the facilities in which an individual is held. In the present case that relationship emerges, in my view, from the way the decision to hold the Claimant in a prison rather than in an IRC was made and explained. The Claimant is present detained pending his removal in a single occupancy cell within the First Night Centre in a prison for his own protection. I accept Mr Coppel's submission that the required connection is made out.
40. In Aerts the applicant's detention was as a person of unsound mind for the purpose of administering treatment for his mental condition. In principle, detention as a mental health patient can be lawful only if effected in a hospital, clinic or other appropriate institution. Pending a decision by the Mental Health Board, the applicant was provisionally detained in the psychiatric wing of a prison. The Court had to determine whether "in view of the purpose of the detention order, the continuation of provisional detention for such a lengthy period" was lawful (paragraph 48). The provisional detention had continued for over 7 months during which the applicant was not given adequate treatment and so "the proper relationship between the aim of the detention and the conditions in which it took place was deficient" (paragraphs 48-49).

Detention centre Rules and the OEM

41. Mr Southey refers to rule 3(1) of the Detention Centre Rules and the absence of an equivalent rule in Prison Rules as demonstrating that in practice there are very significant differences between the regime in a prison and the regime in a detention centre. He submits that the terms of Rule 3(1) suggest that the Defendant is acting unlawfully by failing to provide the protection of the Claimant in an IRC. I reject this submission. Rule 3(1) does not provide a right for a person detained under the Immigration Rules to be detained in an IRC. Rule 3(1) describes the conditions that must prevail within an IRC; it does not provide any legally enforceable right to be detained in an IRC rather than a prison.
42. I also reject Mr Southey's submission that the Defendant's policy set out in paragraph 38.10.1 of the OEM makes it unlawful for an immigration detainee to be detained in prison for reasons of their own protection. That paragraph contemplates expressly the detention of immigration detainees in prison when they "present specific risk factors that indicate they are unsuitable for immigration removal centres for reasons of security or control". The Claimant is not held in an IRC as the Defendant would be unable to ensure his safety and security when so detained. The evidence is that there is no suitable placement for the Claimant within an IRC where his safety could be ensured.
43. There are in my judgment the exceptional circumstances contemplated by paragraph 39.10.1 of the OEM. The evidence is that "the Claimant's detention in prison is the only known instance in the last 4 years where it has been considered necessary to accommodate an immigration detainee in a prison for the detainee's own protection" (Bundle. p12l, para 19). Paragraph 38.10-1 states that detainees will only normally be held in prison accommodation if certain criteria apply; these criteria are not stated to be exclusive. The contrast that Mr Southey draws between paragraph 38.10 (persons considered unsuitable for detention) and 38.10.1 (Criteria for detention in prison) does not in my view assist in construing the ambit of paragraph 38.10.1.
44. It appears from the evidence that the Claimant is most at risk specifically from Jamaicans and Afro-Caribbeans living in South East England. However, more generally he is at risk because of his activities as a police informer. The IRCs have permissive regimes that do not cater for persons at threat of serious assault from other detainees. (Bundle, page 121, para 18). In contrast the Prison Service has a number of VPU and other similar secure units which house prisoners at risk of attack from other prisoners. These are capable of providing a reasonable regime in which the vulnerable prisoners can associate with others and spend time out of their cells. The only facilities available for persons at threat of serious assault within IRCs are segregation units, but IRC segregation units are not suitable for long term detention because of the detrimental impact of continued isolation. (See Witness Statement of Mr Hicks, pp.113-129).

Article 8 of the Convention

45. Finally and separately Mr Southey submits, relying on the House of Lords decision in Munjaz v Ashworth Hospital [2006] 2 AC 148 and the European Court of Human Rights in Klamecki v. Poland (No. 2) [2004] 39 EHRR 7 that the imposition of a restrictive regime on a detainee such as the Claimant engages Article 8. That is because such a regime will limit opportunities for association. It will also limit a detainee's privacy. Further Article 8 is likely to be engaged by the imposition of a regime that restricts visits. For example, at Colnbrook IRC visits are permitted 7 days a week between the hours of 2p.m. and 9p.m., whereas visits are permitted at HMP High Down between 2p.m. and 4.25p.m. on weekdays and between 2p.m. and 4p.m. on weekends. A maximum of 3 visits per week are permitted at that prison. Mr Southey submits by reason of these matters that the allocation of the Claimant to Prison Service accommodation rather than Colnbrook IRC amounts to an interference with his rights under Article 8.
46. A comparison of the Prison Rules 1999 and the Detention Centre Rules 2001, not surprisingly, shows that there are differences between the two regimes. Attached to the Witness Statement of Mr. Luqmani, the Claimant's Solicitor, is a schedule of extracts from HM Prisons Inspectorate Reports that illustrate the operational and practical distinctions between these two types of regimes. Mr Southey referred specifically to the greater time that is allowed out of a cell in an IRC, the use of a telephone in a cell that was allowed at Colnbrook IRC and the restrictions on visits in a prison.
47. Mr Southey submits, by reference to Munjaz v Ashworth Hospital, that in principle the conditions in which a person is lawfully detained may engage Art 8. However as was made clear by the European Court of Human Rights in Nowicka v. Poland [2003] 2 FCR 25

"... normal restrictions and limitations consequent on prison life and discipline during lawful detention are not matters which would constitute in principle a violation of Art 8 either because they are considered not to constitute an interference with a detainee's private and family life or because any such interference would be justified" (para 71).

48. In the present case Mr Coppel submits that the allegation that the Claimant is subject to a more restrictive regime in Prison Service accommodation than he would be subject to at Colnbrook IRC cannot be sustained as a matter of fact. He refers to the letter dated 10 May 2007 from Mr Langston, the Deputy Head of Prison Management at HMP High Down, who confirms that the Claimant was treated as an unconvicted prisoner and so does not need to submit a Visiting Order and, subject to availability, can call to book 3 visits a week. The Claimant is subject to the same regime at HMP Lewes. Mr Coppel submits that, in any event, Rule 35(1) of the Prison Rules 1999 gives exactly the same entitlement to prison visits to unconvicted prisoners as does Rule 28(1) of the Detention Centre Rules 2001. There is, Mr Coppel submits, no evidence that the Claimant's communication with his family, either by telephone or through visits, has been adversely affected.
49. I am not satisfied on the evidence that the allocation of the Claimant to Prison Service accommodation does engage Article 8 in the present case. However if I am wrong about that I must consider whether the Defendant has shown that the interference with the Claimant's Article 8 rights is in accordance with the law, necessary in a democratic society and proportionate to whatever legitimate aim is being pursued, as required by Art 8(2) . In my view it is.
50. Mr Southey submits that the Defendant is failing to act in accordance with the law by failing to detain the Claimant in an IRC rather than Prison Service accommodation. In support of this submission he relies on the alleged failure by the Defendant to comply with Rule 3 and/or because the detention of the Claimant is not in accordance with the Defendant's policy (see paras 42-44 above). For the reasons I have already given (see paras 42-45. above) I reject this submission.
51. Further Mr Southey submits that the Immigration Service's treatment of the Claimant is disproportionate. He submits that the IRCs should be organised so that the Claimant is detained in a unit where he will not have contact with those who might wish to harm him. On the evidence this is not a practical option. In my view, having regard to the objective that the Defendant is seeking to achieve, namely to protect the Claimant, detaining him in a prison rather than an IRC is a proportionate response.

Conclusion

52. In my judgment, for the reasons I have explained, this claim must be dismissed. The failure to provide safe accommodation for the Claimant in an IRC is not unlawful.