COVID-19 and Immigration Detention

30 April 2020 by Suzanne Lambert

At the start of the year, some 1,200 immigrants were being held in immigration detention in the UK. The power to detain immigrants is separate from detention of individuals as part of a criminal sentence. There is a presumption against detention of immigrants and immigration detention, which can only be in accordance with one of the statutory powers (the majority of which are contained in the Immigration Act 1971 and the Immigration and Asylum Act 2002), and is allowed in the interests of maintaining effective immigration control, for example, to effect removal; to establish a person’s identity or the basis of their immigration claim; or where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail.

In order to be lawful, not only must immigration detention be in accordance with one of the statutory powers, but it must also be in accordance with the limitations implied by the domestic common law and Strasbourg case law (ECHR Article 5), as well as with stated Home Office policy. Under the common law and ECHR Article 5, the statutory powers to detain are to be strictly and narrowly construed, i.e. if detention is not for a statutory purpose (or is no longer for that purpose) it will become unlawful. Additionally, the power to detain is impliedly limited to a period that is reasonably necessary for the statutory purpose to be carried out and must be justified in all the circumstances of the individual case, requiring an assessment of individual factors such as the risk of absconding, the likelihood of imminent removal, and the impact on the detainee.

Following news of the first immigration detainee testing positive for COVID-19, there was concern about the risk of COVID-19 deaths in immigration detention and about the legality of continued detention of immigrants. Detention Action Group has sought to challenge the continued detention of immigrants and the steps taken by the Secretary of State to address the position of persons in immigration detention in light of the COVID-19 pandemic.

An application for urgent interim relief was made by the Detention Action Group in March for the release of some 736 immigrants in detention and was advanced, first in relation to those whose removal is not reasonably imminent as a result of the global pandemic and the consequential travel bans and restrictions around the world, and secondly in relation to vulnerable detainees such as those who are suffering from serious medical conditions or who are aged 70 and over.

A separate application for urgent interim relief was made by Samson Bello, a Nigerian deportee, seeking release from detention on the basis that restrictions to travel to Nigeria meant that his continued detention for the purposes of removal was no longer lawful. Both of these cases are discussed in detail below.

Vulnerable adults at risk in immigration detention

The Home Office’s Adults at Risk in immigration detention policy (“AAR policy”) makes clear that there is a presumption against the detention of those adults at risk who are particularly vulnerable to harm in detention except in very exceptional circumstances. 

Adults at risk include those who have serious physical health conditions or illnesses and those aged 70 or over. Age disputes are not uncommon in the immigration context particularly if formal documentation (such as passports and birth certificates) are not available or not accepted as genuine. However, there is even greater scope for dispute in relation to the question of whether someone with health conditions, such as cancer, asthma, diabetes, or a heart condition is considered to have a serious physical health condition severe enough so that they should not be detained.

Given that those with cancer, diabetes and heart conditions are considered to be “extremely vulnerable” in the context of COVID-19 in open conditions within the wider community according to Guidance from Public Health England, it seems to follow that immigrant detainees with those same conditions would also be deemed vulnerable, particularly in conditions where social distancing may be difficult or impractical or where access to appropriate medical care may be more limited.

In support of its judicial review challenge, Detention Action Group commissioned three reports from Professor Richard Coker, a Professor of Public Health, which indicated that prisons and detention centres provide ideal incubation conditions for the rapid spread of the coronavirus,  and it was “credible and plausible that 60% of immigration detainees will soon become infected with COVID-19″. The continued detention of such vulnerable immigrants is therefore subject to challenge on the grounds that it would be in breach of the AAR policy and would give rise to a real risk of article 2 or 3 ill-treatment. A further report by Dr Selina Rajan, a doctor of public health medicine, indicated that without access to healthcare, persons in immigration detention will be at much greater risk of deterioration because of the chance that if they contract COVID-19 they may go on to develop pneumonia which goes untreated for so long as they remain in immigration detention

Detainees with physical conditions or illnesses that place them at high risk if they contract COVID-19 will need to be identified and Rule 35 of the Detention Centre Rules, which requires medical practitioners in detention centres to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention, will need to rigorously applied to ensure that such vulnerable immigrants are released from detention.

Detainees liable to removal to countries with travel restrictions

A separate consideration is the likelihood that removal of those in immigration detention will no longer be reasonably imminent with no realistic prospect of removal or the likelihood of an unreasonable delay in effecting removal to those countries where there is a travel ban in place.

The question of how long it is reasonable for an immigrant to be detained pending deportation or removal is one that has been given detailed consideration in case-law, most notably in R (ota I v SSHD), and R v Governor of Durham Prison ex parte Hardial Singh[1984] 1 WLR 704. In essence, detainees should only be detained for a period that is reasonable in the circumstances; and if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention (see R (I) v SSHD [2003] INLR 196 (per Dyson LJ), approved in R (Lumba) v SSHD [2012] AC 245, [22] (per Lord Dyson).

The fact that travel restrictions and bans are in place in some 50 countries throughout the world may also be considered to pose an insurmountable obstacle to the removal or deportation to those countries so challenges to detention by those facing removal to such countries are likely if decisions to release are not made following review of detention in those cases. It is not yet clear, however, whether those challenges will succeed, as demonstrated by the recent decision to refuse an interim application for release of a Nigerian detainee in the case of R (Samson Bello) v SSHD [2020] EWHC 950 (Admin), discussed below.

The refusal of Detention Action Group’s application for interim relief

In refusing the application for interim relief on 25 March 2020, Mr Justice Swift considered a number of documents and published guidance produced on behalf of the Secretary of State in response to the application. That evidence included SSHD published guidance titled “COVID-19: prisons and other prescribed places of detention guidance” and further public documents specifically addressing the position of those in immigration detention (“General Principles for Managing COVID-19 in an immigration removal centre (IRC), residential short-term holding facilities (RSHTF) and during escort”, and “Operational Instructions: COVID-19 – Detention Considerations”). The court was also provided with a copy of a letter to managers of detention centres dated 24 March 2020.

The court found that the combined effect of that documentation is six-fold.

• First, it provides guidance and instruction about hygiene practices in detention centres in accordance with Public Health England (“PHE”) guidance. Each detention centre is to devise a plan to enable isolation of persons who are in increased-risk groups, or who are symptomatic. Routine movements in and out of detention centres have been curtailed; social visits have ceased.
• Second, guidance and instructions are given about circumstances in which the Secretary of State will exercise her power to detain. In order to minimise the number of persons held in detention, unless the person concerned is considered to present a high risk of harm to the public, the Secretary of State has decided that she will not exercise her power to bring into detention persons liable to removal from the UK to those countries where there are travel restrictions in place due to COIVD-19 and where removal is not possible.
• Third, steps will be taken reduce the numbers of persons already in immigration detention, specifically by applying the AAR policy to detainees who are in any of the PHE-identified increased-risk group.
• Fourth, in respect of those who fall into any of the increased-risk groups but are not released (e.g. for reasons of public protection or to prevent absconding), steps are to be taken to reduce their contact with others e.g. in single-occupancy accommodation (i.e. shielding) and detention centre managers are to work with healthcare teams in detention centres and Home Office staff to ensure that they are provided with support to self-isolate and are subject to an individual care plan.
• Fifth, those not in any of the increased risk groups should have their detention reviewed, taking account in particular whether the person is due to be removed to a country not presently accepting returns, and whether in those circumstances, their continued detention satisfies the Hardial Singh principles.
• Sixth, any symptomatic detainee is to be placed in protective isolation for 7 days (in accordance with PHE guidance) and those not well enough to remain in detention will be transferred to hospital.

Therefore, the court held that

the combined effect of the second, third, and fifth points is that the Secretary of State is acting to reduce the number of persons in immigration detention, and to date those numbers have been significantly reduced; and the fourth and sixth points show that for those who will remain in detention, whether pending review or for a longer period measures are being put in place to address the specific risks arising for those in closed communities such as detention centres.

As Swift J explained, in deciding whether to grant interim relief, American Cyanamid principles apply, subject to appropriate modification for the public law context, i.e. the claimants had to show a real prospect that at trial they will succeed in obtaining a permanent injunction, taking account of the fact that any decision to grant any such relief would include consideration of the public interest.  If there was a “real prospect”, the issue is then whether or not the balance of convenience favours the grant of relief, with the public interest being a relevant consideration at this stage as well. The public interest in this case is that of the Secretary of State continuing to operate an effective system of immigration control.

Swift J held that the Claimants’ first ground (that once a country has indicated it will not accept returns because of COVID-19, the detention of any person detained pending removal to that country, without more, immediately becomes unlawful except where the Secretary of State assesses a detainee to present a high risk of harm to the public) was not arguable. Swift J made clear that

Even when a country informs the Secretary of State that it will no longer accept removals, the Secretary of State is entitled to a period (albeit short) in which to review the detention of those concerned and decide what steps to take.

Given the “exceptional circumstance” facing the Secretary of State and the need to prioritise consideration and reviews of those who fall into the increased-risk groups, those detainees outside that category will have to wait for a short period. Those already in detention are not in the same position as those immigrants and deportees who are to be removed to countries with travel restrictions and in respect of whom the Secretary of State has decided not to initiate detention. In any event, the balance of convenience was held to be clearly against the Claimants on this ground as the documentation demonstrated that the Secretary of State has acted and is continuing to act, and it is in the public interest that she should have the opportunity to complete the exercise she has commenced.

The second ground (that continuing to detain persons, whether or not they fall into any of the increased-risk groups, gives rise to a breach of the Secretary of State’s obligations arising under ECHR articles 2 and 3) was also rejected. The court was satisfied that the measures put in place to date by the Secretary of State (including reducing the number of detainees; shielding those at increased risk; and transfer to hospital where necessary) address the material points raised in Professor Coker’s reports and Dr Rajan’s report. The measures

are all directed to ensuring that, even in the extreme circumstances that presently prevail, the immigration detention regime will in systemic terms remain compatible with the obligation to provide safe arrangements for detention.

It is of note that the court held that the second claimant, Mikhail Ravin (an Estonian national who is subject to a deportation order who has been in immigration detention since 26 June 2019 and who was diagnosed as suffering from hypertension for which he has, intermittently, been prescribed medication), whose claim had been largely overtaken by events following the Secretary of State’s decision to release him from detention subject to identifying suitable accommodation, was indicative of the Secretary of State’s pragmatic approach.

The court suggested that “there was nothing in the evidence concerning the second claimant’s own circumstances that approached establishing a case that would cross the threshold for a grant of interim relief” and that the same conclusion would probably apply in many other individual cases as the arrangements already put in place by the Secretary of State, which where necessary include the option of transferring detainees to hospital, will be sufficient to address the risks arising in the vast majority of cases.

The refusal of Samson Bello’s application for interim relief

More recently, Samson Bello’s interim application for release from immigration detention was also refused. Mr Bello’s case was somewhat different from Mr Ravin’s in that his claim was focused on the fact that as a Nigerian national he could not be deported to Nigeria, a country which had travel restrictions in place due to COVID-19. There was an additional ground that the Claimant’s mental health and physical health problems (diabetes, asthma and sleep apnoea) meant that he should be released from immigration detention at Brook House Immigration Removal Centre.

Mr Bello had been detained for over three months and directions had been set for his removal on three occasions and cancelled on three occasions. The first two removals were cancelled because of lack of resources but the most recent removal scheduled for 5 April 2020 was cancelled because of COVID-19 travel restrictions in place in Nigeria. Two bail applications had been refused in January and March 2020.

Following receipt of a “shielding letter” on 27 March 2020 that identified him as a being at high risk of severe illness if he caught COVID-19, Mr Bello’s representatives sent a pre-action letter complaining that the measures in place for shielding were inappropriate as smokers congregated outside of his cell and he had to use a shared bathroom as well as collect his meals from communal areas. A detention review on 3 April 2020 concluded that he was not vulnerable under the AAR policy and therefore his detention should be maintained.

A claim for judicial review challenging his continued detention was brought with an interim application for his release on the basis that his continued detention was said to be in breach of Hardial Singh principles as his removal was not imminent and because there was a significant risk to his physical health due to the risk of exposure to COVID-19 and a risk of deterioration in his mental health if he continued to be detained. Additionally, it was claimed that Mr Bello should be released in line with the AAR policy and the risk of inhuman or degrading treatment or loss of life if he contracted COVID-19 in breach of ECHR Articles 2 and 3 if he continued to be detained.

Mr Bello’s application for interim relief was refused. Although Mr Justice Chamberlain considered that there was plainly a serious issue to be tried and that Mr Bello’s claim had a real prospect of success, it could not be said that it was so firmly based that it was overwhelmingly likely to succeed so that he should be released immediately. In addressing the question of where the balance of convenience lies, it was not appropriate for Mr Bello to be released before the matter could be determined substantively at the rolled up hearing in the week commencing 27 April 2020.

The court noted that Mr Bello had committed very serious sex offences but indicated that there was no evidence that there was a risk of reoffending or public protection concerns. Rather, the concerns related to the risk of Mr Bello absconding, particularly because his family had previously sought to obstruct his deportation. Although Mr Bello had been detained for a considerable period of time, Chamberlain J held that based on current information there was at least some prospect of removal on 25 May 2020, the new date proposed for removal. The fact that this was more than the five-week period suggested as a guide in Chapter 55 of the Enforcement Instructions and Guidance did not make his detention unlawful.

At the time of the hearing, Nigeria’s travel restrictions were due to expire on 23 April 2020 and Chamberlain J suggested that if the proposed date was not feasible then no doubt the Secretary of State would review the continued appropriateness of his detention. Since the hearing, Nigeria’s travel restrictions have been extended further to at least 7 May 2020 so it remains to be seen whether any further reviews will lead to Mr Bello’s release or alternatively whether Mr Bello will succeed in his judicial review challenge to his detention.

The court observed that the Secretary of State accepted in the Detention Action litigation that being detained in an immigration detention centre increases to some degree the risk that a detainee will contract COVID-19. Whilst the court accepted that if this risk eventuates it is more likely to have a serious effect in Mr Bello’s case (given his comorbidities), it also noted that the expert evidence before the Divisional Court in the Detention Action claim, some of which was before Chamberlain J in Mr Bello’s case, did not cause that court to grant interim relief in relation to detainees with comorbidities in general.

Additionally, the court held that the evidence filed by the Secretary of State in this case indicates that measures were put in place to enable those thought to be vulnerable to be housed in an environment that makes social distancing easier. The Secretary of State could not be held responsible for the fact that no detainees (including Mr Bello) accepted the offer of a move to that environment. Furthermore, the court accepted that the fact that one individual (housed in a different wing from Mr Bello) who tested positive for COVID-19 was isolated on 5 April as soon as he became symptomatic, and that there have been no other known cases at Brook House since, provides some basis for believing that the risk is currently controlled. Should the situation change, the court suggested that the Secretary of State would react appropriately by implementing further containment measures or by reviewing the need for continued detention on a cohort or individual basis.

Detention will still have to be reviewed on a case by case basis

Although the Home Office has not been compelled to empty the immigration detention centres, like in other European countries, continued detention will now be reviewed carefully on a case-by-case basis and it is also likely that bail applications, Habeas Corpus applications and individual judicial review claims will be brought where the detainee is deemed vulnerable in accordance with Public Health England guidance or where the detainee is liable to removal to a country where travel restrictions are in place. In this regard, the charity Bail for Immigration Detainees (BID) states that between 20 March and 21 April it has made 34 bail applications for detainees, of which 33 had been granted.

It remains to be seen whether detainees considered at risk or vulnerable on the grounds of COVID-19 will be subject to “shielding” measures in solitary confinement rather than be released, however, as suggested in a leaked G4S letter.

In the unfortunate event that there are deaths in immigration detention as a result of COVID-19, the adequacy of any detention review and the application of Rule 35 (including the role of healthcare professionals) are likely to attract significant attention in the inquiry into the deaths in custody and the decision to continue to detain.

A word of caution for potential claimants

Although Detention Action Group’s application was rejected by the High Court, it was hailed as a success in that the week leading up to the hearing: 350 detainees were released, and the Home Office provided an undertaking to review proactively the detention of all those held under immigration powers in accordance with updated Public Health England guidance.

However, in his reasoned judgment, released more recently, Swift J suggested that the application for interim application once the Secretary of State’s evidence had been considered and he was

not persuaded … that it was necessary to bring this matter to court to achieve what has been identified.  In our view, a sensible co-operation before this case would have led to the same result.  In any event, we would add that there is nothing that suggests that the Secretary of State’s guidance has been reactive in any real sense to this claim.

The Secretary of State was therefore awarded her costs.

The following advice could be considered to be of more general application to potential claims against the government arising from COVID-19 beyond the immigration context:

Present circumstances are exceptional. … the Government response to the pandemic has evolved at pace; decisions are made and reviewed daily or even hourly. This applies not just to immigration control but to all areas of Government responsibility for all persons living in the United Kingdom. The Courts will always stand ready to determine urgent cases, and in particular those touching on matters of public interest. But the golden rules are that representatives who bring claims must prepare those claims cogently and conduct the litigation sensibly and proportionately, and most of all, they must cooperate with each other when preparing cases and bringing them to the Court. These golden rules are particularly relevant now, and must be adhered to.

Suzanne Lambert is a barrister at 1 Crown Office Row.