The missing Rule 35 mechanism for immigration detention in prison
27 April 2021
The Court of Appeal in MR (Pakistan) and Another v Secretary of State for the Home Department  EWCA Civ 541 recently dealt with appeals regarding the absence of a process to assess the vulnerability of a person detained under immigration powers at Her Majesty’s Prisons (“HMPs”). This absence remains despite such a process existing for those detained under the same immigration powers in Immigration Removal Centres (“IRCs”) by virtue of Rules 34 and 35 of the Detention Centre Rules. These provisions enable a medical report to be prepared which is then considered by the SSHD when deciding on the management of the individual under relevant policy guidance.
The Court upheld the claim in part, holding that whilst this discrepancy did not give rise to systemic unfairness, in the individual two cases there was an irrational failure to obtain a Rule 35 report or equivalent. Despite this, however, it was held that these failures were not relevant to the decisions to detain the individuals in the particular cases.
The SSHD is under a statutory duty to issue guidance regarding the detention of the ‘particularly vulnerable’, including whether they would be particularly vulnerable to harm if they are detained and whether they should continue to be detained. This duty applies in respect of detention in both HMPs and IRCs.
Risks such as medical conditions and traumatic events (e.g. past torture) that would be likely to render the individual particularly vulnerable to harm if they remain detained can establish an individual as an Adult at Risk under this policy.
In particular, the Guidance on adults at risk in immigration detention provides three levels of evidencing an Adult at Risk. Level 1 is met by the self-reporting of potential risks, such as a history of torture, and is to be afforded limited weight. Level 2 is afforded “greater weight” – it involves professional assessments or official documentary evidence indicating that risk exists. Level 3 evidence is afforded significant weight – it requires professional evidence confirming “the individual is at risk and that a period of detention would be likely to cause harm” [emphasis added]. Detention could cause harm by, for example, increasing the severity of symptoms.
MR and AO were considered to be Level 2 Adults at Risk during their detention periods – MR due to depression and AO due to psychotic illness. The accounts of past torture first appear to have been disclosed by MR and AO four months after and six months before being assessed as Level 2 Adults at Risk respectively.
In both cases, detention reviews took place following their assessments as Level 2 Adults at Risk, with even occasional mention of the absence of a Rule 35 report. It was repeatedly assessed that despite the Level 2 evidence, immigration controls required their detention.
The Detention Centre Rules are applicable to IRCs. These relevantly provide as follows:
Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner …) within 24 hours of his admission to the detention centre.
(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
The SSHD policy document Adults at risk in immigration detention states that a Rule 35 report “will normally amount to level 3 evidence” (pg 21) and that Level 3 evidence “should normally be accepted and any detention reviewed in light of the accepted evidence” (pg 13).
HMPs, however, are governed by the Prison Rules. Rule 21(1) provides that:
The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations.
Issues at appeal
The appeals were concerned with the different processes at HMPs and IRCs for identifying vulnerabilities. The six issues appealed were whether the judge:
- Was wrong in finding that there was not a systemic unfairness in the regime in HMPs for immigration detention because there was no equivalent of Rule 35 of the Detention Centre Rules;
- Should have found that it was irrational in the case of MR and AO not to have discovered through an equivalent of Rule 35 of the Detention Centre Rules that they were victims of past torture;
- Should have found that AO and MR were entitled to damages for false imprisonment;
- Was wrong to reject the claim for an infringement of article 14 of the ECHR;
- Was wrong to dismiss the claim for indirect discrimination against AO and MR;
- Was wrong to find that there was no breach of the public sector equality duty (PSED).
This article will start with issue 2, on which the Court granted the appeal, before turning to the unsuccessful grounds.
Issue 2 – irrational not to obtain medical concerns about past torture
It was argued that the judge should have found it irrational that the SSHD did not have a Rule 34/35 type mechanism to obtain information on vulnerabilities, given that it adopted a policy requiring the provision of such matters when considering the management of detainees.
Dingemans LJ (with whom the other two judges agreed), in allowing this ground of appeal, emphasised that “Parliament has required the SSHD to issue guidance about the immigration detention of the particularly vulnerable”, and that the SSHD adopted a policy to limit the detention of vulnerable immigrants . He agreed that it was irrational – thus unlawful – not to have made any effort to ensure that information, such as medical concerns of previous torture, could be obtained at the start of an immigration detention period, through a Rule 35 report or similar, where the SSHD was required by their policy to know about such vulnerabilities. Instead, the SSHD relied on detainees to volunteer their torture history without providing space for detainees to report it . This was insufficient.
Issue 1 – systematic unfairness
The Appellants claimed that it was systematically unfair/unreasonable for the SSHD to fail to have a mechanism equivalent to Rules 34/35 in HMPs, which would require healthcare providers to inquire whether a detainee was a torture victim and to provide the SSHD with details of that person’s vulnerability.
The Court accepted that if there had been a Rule 34/35 style examination of MR and AO at the start of their detention, it would have exposed concerns of torture. There would also have been provisions requiring the reporting of those concerns to the SSHD in a structured way. While the Court acknowledged it was a systemic weakness that HMP immigration detainees are not asked specifically about mental health or torture issues, it was not systematically unfair. The Court relied on the existence of a system whereby Home Office criminal casework teams could obtain relevant information about persons detained. It was through that system that the Appellants were assessed as Level 2 Adults at Risk. Further, in both cases, detention was maintained, despite Level 2 evidence. The Court considered that a Rule 35 report would not have elevated the Appellants into a Level 3 Adult at Risk, and that the decision to maintain immigration detention would have been made nevertheless, as the SSHD had decided to continue to detain them once the allegations of past torture became known. Consequently, there was no individual, let alone systematic, unfairness for either detainee .
The Court clarified that the issue 2 irrationality finding did not result in a finding of systemic unfairness. It also reiterated that when medical concerns about past torture were obtained, it did not lead to the Appellants’ release, suggesting “there was no systemic unfairness affecting immigration detention, regardless of whether the operation of the system in their individual cases was rational” .
Issue 3 – unlawful detention
It was further contended that the Appellants’ detention was unlawful due to a policy breach by the SSHD in failing to obtain information relating to the Appellants being Adults at Risk.
The Respondents posited that there was no breach: Rule 34/35 did not apply to the Appellants. Regardless, sufficient information was obtained, or alternatively, any failure was not relevant to the detention decision, given the Appellants were treated as Level 2 Adults at Risk but the considerations of immigration control factors outweighed these vulnerabilities.
The Court accepted the Respondent’s submission. While the absence of a Rule 35 report or equivalent was relevant, given its mention in the detention reviews, it did not bear upon the detention decision. The Appellants were known Level 2 Adults at Risk before medical concerns about past torture became known; a Rule 35 Report would not have elevated their level of risk assessment, and significant immigration control factors outweighed the presumption that persons at risk should not be detained .
Issue 4 – unlawful discrimination (article 14 ECHR)
The Appellants submitted that the judge should have found unlawful discrimination under article 14 ECHR in conjunction with articles 3 and 5. It was common ground that being detained was another “status” for the purposes of article 14 and that the detention came within the ambits of Articles 3 and 5. But the Respondent’s contention was that the Appellants and those in IRCs were not in similar positions, so there was no unlawful discrimination.
The Court agreed with the Respondent. It was held that although immigration detainees in HMPs and IRCs were detained under the same statutory powers, there was no unlawful discrimination. It was considered that those detained in IRCs very frequently arrived without any relevant background or history, whereas those detained in HMPs will have been inducted into a prison with a functioning medical system, with the possibility to consent to the disclosure of their medical records, thus providing a way for vulnerabilities to be assessed – an opportunity that those arriving at IRCs, often with blank records, do not have. Therefore, the positions in the two situations differed. It was also reiterated that the Appellants were treated as Level 2 Adults at Risk, so the irrational failure to obtain medical concerns did not result in differential treatment in the circumstances .
Issues 5 and 6 – indirect discrimination and breach of PSED
The Appellants argued that the judge was wrong to find that there had not been any indirect discrimination or a breach of the PSED. Dingemans LJ was blunt in criticising the Appellant’s submissions. He stated that they had not identified why the judge below was wrong on indirect discrimination, and reiterated that the SSHD’s failings did not cause the Appellants any particular disadvantage (given the previous findings that a Rule 35 report would not have changed their detention) . As to the PSED, it was determined that the Appellants had failed to identify what function the SSHD was exercising when she allegedly failed to have regard to the relevant equality matters .
The judgment on issue 2 is welcomed, though it is concerning to find the rest of the judgment filled with the recurring theme that Level 3 evidence, such as a Rule 35 report, would have made no difference to the detention of the Appellants, who were already assessed as Level 2 Adults at Risk (for reasons other than relating to their history of torture).
If the risk indicator is a Level 1, the immigration controls will carry great weight in counterbalancing the vulnerability risks. However, as the strength of evidence of risk increases, the likelihood that the same immigration control purposes will prevail necessarily decreases. To suggest otherwise would undermine the purpose of categorising risk levels. It would also undermine the qualitative difference of Level 3 evidence (which requires a judgement that detention is more likely than not to cause harm), from the lower level that merely asserts a risk of vulnerability to harm. The change from possibility of harm to likelihood of harm is significant – dismissing the potential difference in the outcome of the detention review overlooks that. It is acknowledged that not every case with Level 3 evidence will be able to outweigh serious immigration control factors. But the categorical denial that a Rule 35 report would have changed the outcome to the Appellants assessed as Level 2 risk for depression and psychotic illness alone may suggest that the SSHD is not undertaking the balancing exercise that their policy calls for.
The SSHD confirmed that steps are being taken currently to devise a system to provide immigration detainees in HMPs the benefits of the Rule 35 process found in IRCs. It is eagerly awaited.
Alice Kuzmenko is a barrister at 1 Crown Office Row. She tweets at @AliceKuzInLaw