QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
(on the application of FOUAD IDIRA)
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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Mathew Gullick (instructed by Treasury Solicitor) for the Defendant
Hearing date: 9th December 2014
Crown Copyright ©
MR JUSTICE JAY:
Defendant's Policy Regarding the Place of Detention of Immigration Detainees
(1) Rule 3 of the Detention Centre Rules 2001 provides:-
"(1) 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 right to individual expression.
(2) Due recognition will be given at Detention Centres to the need for awareness of the particular anxieties to which detained persons may be subject and the sensitivities that this will require, especially when handling issues of cultural diversity."
(2) Section 10.1 of Chapter 55.10 of the Defendant's Enforcement Instructions and Guidance ("EIG"), promulgated on 26th October 2010, provided (I use the past tense because it has been revised):-
"Immigration detainees should only be held in prison establishments when they present risk factors that indicate they pose a serious risk to the stability of Immigration Removal Centres or to the safety of others being held there.
Detainees moving from the Prison Estate into the IRC Estate will undergo an individual risk assessment. The existence of any of the following risk factors indicates that the detainee should be held in prison accommodation rather than an IRC but the list is not exhaustive national security criminality (serious offences) behaviour during custody security control health grounds."
(3) Clause 12.4 of the Service Level Agreement ("SLA") between the National Offender Management Service ("NOMS") (part of the Ministry of Justice) and what at that time was known as the United Kingdom Border Agency ("UKBA") (part of the Home Office), 2011-15, promulgated on 15th June 2011 provides:-
"Immigration detainees should generally only be held in a prison when they present specific risk factors that indicate they pose a serious risk of harm to the public or for the good order of an Immigration Removal Centre, including the safety of staff and other detainees, which cannot be managed within the regime applied in IRCs. This regime derives from Detention Centre Rules and provides greater freedom of movement and less supervision than prisons, as well as access to the Internet and mobile telephones."
(4) Paragraph 2.68 of Prison Service Instruction ("PSI") 52/201, issued on 4th November 2011, was in like effect to (3).
"Unconvicted prisoners have not been tried and are presumed to be innocent; the Prison Service's sole function is to hold them in readiness for their next appearance at Court. Their imprisonment should not deprive them of any of their normal rights and freedoms as citizens, except where this is an inevitable consequence of imprisonment, or the Court's reason for ordering their detention and to ensure the good order of the prison. Instructions or practices that limit their activities must provide only for the minimum restriction necessary in the interests of security, efficient administration, good order and discipline and for the welfare and safety of all prisoners." [emphasis as in the original]
Looking at the definition of "unconvicted prisoners" in Annex A of PSO/4600, it is clear that those held under immigration powers form part of a much wider category of persons who are not subject to formal terms of imprisonment. This category includes individuals held on remand awaiting trial. Remand prisoners are not held in specially designated institutions, but to my knowledge no one has sought to argue that Article 5 issues arise in their context.
"43[ ] prisons, which are either penal establishments answering specific purposes related to the very notion of penalty, or remand centres, are not to be confused with the specialised detention centres provided for by the Directive. A person is held in prison in two cases only, either before being tried or in order for them to serve a criminal penalty, each of those cases being part of a procedure attaching to a serious criminal offence."
"(1) Migrant workers and members of their families who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity.
(3) Any migrant worker or member of their family who is detained shall be held, insofar as practicable, separately from convicted persons or persons detained pending trial."
"Detainees shall be accommodated in centres specially designed for the purpose of immigration detention and not in prisons (paragraph 9.2.2).
The material conditions shall be appropriate to the individual's legal and factual situation (paragraph 9.2.5)
The detention regime must be appropriate to the individual's legal and factual situation (paragraph 9.2.6)"
"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 suitable qualified personnel. Obviously, such centres should provide accommodation which is adequately-furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible the impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them." [emphasis as in the original]
"NOMS and the Home Office have a Service Level Agreement governing the provision of bed spaces within prisons. Under that agreement, NOMS make a number of bed spaces available for use by the Home Office to hold immigration detainees. It is for the Home Office to determine how those bed spaces are used and the type of detainees who are held in them.
"The normal expectation is that the prison beds made available by NOMS will be used to hold TSFNOs before any consideration is given to transferring such individuals to the IRC estate. This position will apply if there are free spaces among the beds provided by NOMS and even if the criteria or risk factors outlined below are not presented by the FNOs concerned. More generally, decisions to allocate specific detainees, whether TSFNOs or otherwise, to prison accommodation will be based on the presence of one or more of the risk factors or criteria below. "
[the risk factors are the same as before: see paragraph 10(2) above]
"(note: the existence of any of the above risk factors indicates that a detainee should be held in prison accommodation rather than an IRC but the list is not exhaustive and DEPMU staff should also satisfy themselves that no other risks exist which would make it inappropriate for the detainees to be held in an IRC, rather than a prison.)
"The normal expectation is that any remaining prison bed spaces made available under the agreement with NOMS after allocation of prison beds to individuals, presenting one or more of the criteria or risk factors above, will be filled by TSFNOs not falling into the above categories. Subject to risk assessment, such individuals will be placed on a waiting list, operated by DEPMU, for transfer to an IRC but will remain in prison accommodation pending that transfer.
"The transfer of such individuals to IRCs will take place only where the prison beds they are occupying are required either by individuals (FNO or otherwise) falling into one or more of the categories above or by more recently detained TSFNOs (that is, FNOs detained under immigration powers on completion of or released from custodial sentence). In the absence of the criteria or risk factors set out above, the length of time that an FNO has been held in a prison bed solely as an immigration detainee will be the main factor in deciding when to transfer to an IRC. In other words, priority for transfer to an IRC will be given to those FNOs who have been held in prison beds the longest.
"Separately from the use of the prison beds made available to the Home Office under the agreement with NOMS, and in the interests of maintaining security and control in the Home Office Detention Estate as a whole, a cap is placed on the total number of TSFNOs who may be held in the Detention Estate at any one time. The cap may also be used as part of the day to day management of the Home Office Detention Estate in order to meet changing operational priorities for the use of IRC beds, which will have a consequence for the number of beds that will be available for allocation to TSFNOs at any one time where the current level of the cap is reached, TSFNOs will continue to be held in prison accommodation, even in the event that the prison bed spaces made specifically available to the Home Office by NOMS are full: the expectation in such circumstances is that additional bed spaces would be sought from NOMS.
"If transfer to an IRC is agreed, it should be effected as soon as reasonably practicable. Reasons for deciding not to transfer an individual must be recorded, as must the reasons for any delay in affecting agreed transfers.
Any individual may request a transfer from prison accommodation to an IRC. Prompt and evidence based consideration must be given to such a request and, if rejected by DEPMU, the individual concerned will be given written reasons for this decision "
"13.1 Section 12 above sets out the circumstances in which immigration detainees will be held in prisons and this SLA recognises that the number of detainees actually held there is subject to variability. The structure for payments will reflect this by setting a payment per place for an agreed minimum number of places to be provided across the year and a higher payment for places beyond this.
"For the financial year 2011/12, NOMS will make available 600 places in prisons for holding immigration detainees at £x per place per year.
"Payment for places beyond this will be at an annual rate of £x supplied monthly and based on the average number of immigration detainees in prison that month (as recorded by national operations group from establishments' annex 1 returns).
"13.11 Any agreement to extend these arrangements to future years (and, in doing so, any agreement to vary the number of places being made available or applicable payments) must be recorded in writing."
"UKBA email dated 9th May 2011
This is why chapter 55 will need to be changed so that it reads the same as the SLA ... we don't want to put specific numbers in because these can and do frequently change it's not a case of making the SLA match Chapter 55 it's the other way round we have been holding TSFNOs in prison for purely immigration reasons for years while they are either protocol cases or awaiting a place in the IRCs "
"Email 9th May 2011, probably UKBA
[The SLA] doesn't make it clear that the 600 beds would not be used for "ordinary" immigration detainees (i.e. not FNOs or those whose behaviour is such that they can't be safely accommodated in IRCs). I understand that Ministers gave a commitment in 2002 to end the routine use of prison detention for immigration purposes. Any change to this position would require us to go back to Ministers for approval (notwithstanding this was a commitment given under the previous administration), so we ought to make clear in the SLA that we are not backtracking on that position "
"UKBA email dated 11th May 2011
we will be trying to keep the numbers of TSFNOs in the prison estate as close to the 600 as we can the process will be that as the FNO finishes their sentence they will be risk assessed by DEPMU for suitability to come into our estate and those that are risk assessed as suitable will be put on a list and brought across into our estate in as close to list order as we can, given their geographical location and transport limitations etc.
At this moment in time we have approximately 900 males (our full capacity) in our estate and approximately 550 in the prison estate and so the additional length of time that detainees will have to wait (given we bring around 110 detainees out of prisons each week) will not be more than a couple of days."
"UKBA email dated 24th May 2011
In essence, what we are seeking to do is to change completely our approach to bed space allocation.
Instead of us saying that all FNOs are eligible for a transfer to an IRC bed unless their personal risk profile dictates that they are not suitable or we have reached our numerical cap, we are saying that all FNOs are liable to remain in a prison bed irrespective of their personal risk profile unless we have filled the quota of beds allocated to us by NOMS (as you say currently set at 600) and their risk profile dictates that they can come across.
It is foreseeable that we will have empty beds in our estate which under current arrangements FNOs might fill, but in the future they will not. These beds will be provided to the rest of the business to use for the removal of failed asylum seekers, overstayers, etc.
I don't think we should be afraid to say what we are doing or why we are doing it indeed we would be criticised severely if we were to be seen to operate some form or clandestine policy or allocation criteria.
As I say, lawyers should look over this carefully before we publish."
"UKBA email dated 14th September 2011
The revised criteria in 55.10.1 for allocation to prison beds now reflect those agreed with NOMS in the SLA. In addition, I've tried to set out the basis on which the 600 beds are expected to be used. The expectation is that, as we are paying for the beds whether used or not, they will be kept as full as possible at all times. This will be achieved in the large part, simply through operation of the allocation criteria for particular individuals, whether FNOs or not. Any remaining beds (on current figures, likely to be in the region of 150-200) will be filled by managing the flow of FNOs from prisons to IRCs, with individuals effectively being held back in prison until the pressure of more recently TSFNOs pushes them across to our estate (subject, of course, to the overall cap on FNOs in our estate)."
"FOR ACTION: Use of Detention Beds
Colleagues (including those in NOMS)
In order to temporarily meet the increasing demand for detention space I am today making a number of decisions.
1. DEMAND: To increase our use of NOMS beds within the terms of the SLA for the remainder of this financial year up to a maximum of 1,000
2. RESOURCES & STRATEGY: ensure that the UKBA Board can make a decision on the possible transfer of NOMS estate to UKBA. This is reasonable pressing [sic] as I know NOMS wants an answer and operational [sic] we could be at demand risk.
3. EFFECTIVENESS: we need to use our existing detention space more effectively, I will ask to write to our enforcement teams to ensure better review of medium and long-term detainee [sic] to really check the likelihood of removal."
"As part of the SLA for detention services provided by NOMS for the Home Office, NOMS are committed to making available 600 places in prisons for holding immigration detainees. Towards the end of 2012 it was agreed, at the request of the Home Office, that NOMS would make available a further 400 places, bringing the total to 1000 places in prisons for holding immigration detainees.
We have since been informed by the Home Office that the number of prison places required for immigration detainees will revert back to 600."
"At the present time, the Home Office is limiting transfers for only those detainees who have removal directions in place as we have not used all the bed spaces available to us in the NOMS estate. It is for this reason that your client will currently remain in the NOMS estate at this time unless there is a significant change to his medical wellbeing."
"In the autumn of 2012, a decision was reached to halt temporarily the transfer of TSFNOs into immigration detention. This agreement was reached to assist with capacity issues within the IRCs. The decision to temporarily halt transfers came at a time when there were around 600 TSFNOs in the prison estate, with around 20 prisoners becoming time expired each week. It was agreed with the NOMS that the transfers would be halted temporarily, until the numbers of TSFNO reached 1,000. TSFNOs continue to be transferred to the detention estate for removals and court appearances, but these are exceptions to the current agreement".
"The additional detainees will be generated by suspending transfers out of prisons into IRCs. UKBA have today instructed their managers to take this action, although transfers for imminent removal from the UK will be maintained as normal. This means that the population in prisons will grow gradually as foreign national prisoners become time-served and are detained under immigration powers. We anticipate that the number of detainees in prisons (552 on Monday 29th October ) will increase by between 30-50 per week until the total number is around 1,000".
This email provides strong support for Mr Denholm's submission that there was a blanket policy operating in practice.
"There have been some individuals who have been moved to an IRC for a short period, for example to ensure that they have been able to attend appeal hearings where the prison timings would prevent this. These individuals will then be moved back to a prison bed following their court hearing."
The Claimant's First Ground: Public Law Error
"The Claimant's place of detention is linked to the grounds for his detention; he was a TSFNO who was serving a sentence of imprisonment and had immediately upon expiry of the custodial part of that sentence been detained in prison pending his deportation, which was taking place as a consequence of his criminal offending".
Ground 2: Article 5
(i) whether my finding that the Defendant has perpetrated public law error is sufficient to justify a breach of Article 5.
(ii) if not, whether the Claimant's detention in prison, as opposed to an IRC, was "arbitrary" for Article 5 purposes because there is no link between the ground or reason for the Claimant's detention, and its location and conditions.
(iii) if so, whether binding Court of Appeal authority precludes me from finding a breach of Article 5 on that basis (or on the public law basis referred to under (i) above).
(iv) if so, whether in any event the Claimant's incarceration was "unduly harsh" so as to found a breach of Article 5.
Issue 1 Public Law Error and Article 5
"I do not consider that these arguments undermine what I have referred to as the correct and principled approach. As regards Mr Beloff's first point, the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting a decision to detain or not to detain".
"Whether the matter is put on the basis of Article 5 or of domestic public law, in my judgment the consideration of the Claimant's case both on 12th August 2010 and thereafter was flawed. Much of the reasoning of the decision letter of 12th August 2010 is unassailable, but in two respects it is plainly wrong".
Issue 2 No link
"The Court reiterates that in order to comply with Article 5(1), the detention in issue must take place "in accordance with a procedure prescribed by law" and be "lawful". The Convention here refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness" [emphasis supplied].
"The reports show sufficiently clearly that the psychiatric wing could not be regarded as an institution appropriate for persons of unsound mind, the latter not receiving either regular medical attention or a therapeutic environment the proper relationship between the aim of the detention and the conditions it took place was therefore deficient."
" that does not necessarily mean that it was lawful within the meaning of this provision, as the Court's case law requires that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (paragraph 102 of the judgment)".
" these conditions were consequently not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor (paragraph 103)".
"Although this opinion is not binding on me, the views of the CPT are entitled to great respect. Certainly it would be disturbing to most people's sense of fairness that an immigration detainee who has not been convicted of any criminal offence should be confined in a prison save in the most exceptional circumstances".
Issue 3 stare decisis
"Mr Roe accepts that, in accordance with decisions of the Strasbourg Court, detention will not be lawful if it is "arbitrary", which might include detention in bad faith, or not genuinely for the purpose of the relevant exception, or where there is not "some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention" (Saadi v UK  47 EHRR 17, paragraphs 68-74). However, none of the cases relied on supports a claim based solely on an irregularity in the selection of the place of detention, at least in the absence of any evidence that the conditions of detention were unduly harsh."
"The only specific example [Counsel for the Appellant] was able to offer of a finding of illegality under Article 5, depending solely on the place of detention, was Mayeka v Belgium  1 FLR 1726. There, a five year old Congolese girl was detained for two months, alone among strangers, in an adult detention centre. This, as the court found, caused such distress and potential psychological damage as to amount both to inhuman treatment contrary to Article 3, and to a violation, under Article 5, of the principle that the place and conditions of detention must be related to the permitted ground of deprivation of liberty. This was clearly an extreme case, and the contrast with the present case is striking. In my view, it underlines the force of Mr Roe's submission. The judge was correct to reject the claim under this head, in the absence of any specific evidence challenging the conditions of detention".
Fourth issue "unduly harsh"
"Detainees held within the prison estate suffer from multiple, systemic, compounding barriers to accessing justice, with an often devastating effect on their ability to progress their immigration case, seeking independent scrutiny of their ongoing detention from the Courts and Tribunals, and seek release from detention, as well as on their physical and mental wellbeing".
" No automatic access to on-site immigration advice like that provided for detainees in IRCs.
The existence of financial disincentives to legal aid providers who wish to work with detainees in prisons under current legal aid agency contracts.
Immigration detainees routinely held under serving prisoner regimes.
Prison regimes and restrictions that preclude the holding of mobile phones, adequate access to wing telephones during working hours and a slow internal postal system in prisons, which delay and frustrate timely communication with legal advisors, the Courts, and the Home Office.
Lack of internet access in prisons which hinders legal research for unrepresented detainees, and makes cooperation with the Home Office re documentation process very difficult.
Home Office escorting failures resulting in failures to produce detainees at bail hearings.
Time limited video link connections to prisons.
Failure to fit electronic tags within the prescribed two working days resulting in extended detention in prison".