Immigration removal and an Article 2 inquest

29 April 2021 by Caroline Cross

R (Lawal) v Secretary of State for the Home Department (2021), Upper Tribunal (Immigration and Asylum Chamber), Unreported, JR/626/2020 (V) — read judgment

The death of an immigration detainee, as with all prisoners, is rightly subject to legal scrutiny. This is because detainees are completely under the state’s control. Article 2 ECHR requires that the state carry out an effective investigation into all deaths in detention where there is a reasonable suspicion that the death was unnatural. A coroner is required to hold an inquest into all deaths in custody, and specifically a jury inquest where there is reason to suspect the death is violent or unnatural.

In this case, a two-judge panel of the Upper Tribunal (President of the Upper Tribunal, Mr Justice Lane, and Upper Tribunal Judge Canavan) found that the respondent Home Secretary had breached her Article 2 procedural obligations in respect of deaths in immigration detention. In particular, she had failed to ensure that crucial witness evidence was secured for use at an inquest and had failed to halt the deportation of a relevant witness.

The facts

Mr Oscar Lucky Okwurime (‘OO’) was a Nigerian national. On 12 September 2019 he was found dead in his room at Harmondsworth Immigration Removal Centre, aged 36. The applicant in these proceedings, Ahmed Lawal, was also a Nigerian national and a good friend of the deceased. He was detained on the same wing at the time of the death.

Following the death, Mr Lawal was not identified by the staff as Harmondsworth as being a relevant witness. He was not interviewed by the police or the Prison and Probation Ombudsman. He received notice on 16 September 2019 that he was due to be deported on 17 September. However, interim relief was granted on 17 September preventing his removal: his lawyers successfully argued that he had material evidence in relation to OO’s death.

An inquest was opened on 8 October 2019. On 21 October 2020 the Coroner for West London informed the Home Secretary that she considered Mr Lawal to be an important witness of fact and required his attendance to give live evidence at the inquest. She noted he was “the only live witness who can speak to certain parts of the evidence particularly the presentation of the deceased in the days before his unfortunate death”  [para 19]. The jury inquest was held between 13 November and 7 December 2020. The record of inquest stated that OO had died of a spontaneous subarachnoid haemorrhage at approximately 2300 hours on 11 September 2019, having last been seen alive at 2100 hours on 11 September. The jury’s conclusion as to the death of OO was:-

We find the death to be considered unnatural. Mr Oscar Lucky Okwurime died of a spontaneous subarachnoid haemorrhage which can rupture due to hypertension. His blood pressure reading on 22 August 2019 demonstrated Grade II hypertension. This reading was not repeated due to multiple failures to adhere to healthcare policy. Given the multiple opportunities to repeat this basic medical test on a vulnerable person, neglect contributed to the death.

Judicial review proceedings

The judicial review application raised two main issues:

[…]

(b)  Whether the respondent can lawfully remove a potential material witness to a death  in  custody in circumstances where their evidence has not been secured and a coroner has not made a decision as to whether they are required to give evidence at the final inquest hearing; and

(c)    Whether the respondent’s failure to  have  in  place  a  policy  framework,  which  makes  clear  provision  for  a  proper  investigation  into  witnesses  to  a  death  in custody prior to any enforcement action being taken, is lawful.

[para 22]

The Tribunal referred to a number of European and domestic cases emphasising the importance of a state’s procedural obligations under Article 2, in particular the need to ensure the investigation into a detention death is effective. As such, the authorities must take reasonable steps to secure relevant evidence, including witness evidence [paras 24-35]. It also referred to the jurisdictional limitations on coroners, in that they cannot compel witness attendance if the person is outside England or Wales[1] – difficult in circumstances where a witness has been deported.

The applicant argued that, in immigration detention deaths, a pool of material witnesses should be identified. The coroner should then have a role in determining whether a witness is material or not. Until the coroner had made a decision, none of those witnesses could be deported. The Tribunal disagreed: “To insist that the coroner, in effect, approves of the removal of any individual who may have evidence that might fall to be considered at an inquest goes beyond what is reasonable in order to comply with the Article 2 procedural duty, as articulated by the ECtHR and interpreted by the domestic courts.” [para 73]

The Tribunal did, though, find that “the irreducible minimum obligations of the respondent” were:

(a) to take immediate steps to ascertain whether any detainee has evidence to give regarding the death in detention;

(b) to record, or facilitate the recording of, a statement of such evidence;

(c) to determine whether the individual is willing to give evidence at the inquest;

(d) to record relevant contact details of the individual, including in the country of proposed removal; and

(e) to consider the practicability of the individual giving evidence at the inquest either (i) by returning to the United Kingdom for that purpose or (ii) by giving evidence by means of video-link.

It just so happened that the same issues had arisen in an earlier inquest into the death of a detainee at Morten Hall IRC, Carlington Spencer. His inquest was held in 2019 and two detainees gave crucial evidence at his inquest. The Senior Coroner of the County of Lincolnshire wrote a PFD letter to the SSHD on 27 August 2020 that raised similar concerns to this case about the importance of detainees as material witnesses. No witness statements were taken from the detainees at the time of the death and the detainees were on the brink of deportation “where the Home Office either was not aware, or chose to ignore the fact that these detainees were important witnesses required to give evidence at a forthcoming inquest hearing” [para 62].[2]

In response to the PFD letter dated 25 January 2021, the Home Secretary explained that the policy on deaths in detention (Detention Service Order 08/2014, version 2.0) had been updated: it now required that the detainees be informed of their right to speak to the police and/or PPO, and that staff must make available the names of potential witnesses to the police/PPO.  

However, the Tribunal held that the DSO relied upon detainees coming forward of their own accord. As such, the policy was unlawful because “it gives rise to a real risk of an Article 2 procedural breach because it does not direct relevant personnel actively to identify, and to take steps to secure the evidence of, those detainees whom there is reason to believe may have relevant information concerning the death of the person concerned.” [para 84]

The Tribunal therefore made the following declarations at paragraphs 2 to 4 of the Order:

2. The Respondent acted unlawfully in her decision to remove the Applicant on 17 September 2019 in that she had failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime contrary to her Article 2 procedural obligations.

3. The Respondent’s policy, namely DSO 08/2014 Death in immigration detention as issued in August 2020, is unlawful in that it gives rise to a real risk of an Article 2 procedural breach because it does not direct relevant personnel actively to identify, and to take steps to secure the evidence of, those detainees whom there is reason to believe may have relevant information concerning the death of the person concerned.

4. The Respondent’s absence of a policy directed to caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody is unlawful due to a breach of her Article 2 procedural obligations in respect of deaths in immigration detention.

Comment

A few comments of note:

First, the Tribunal does not comment upon whether Mr Lawal’s evidence was actually crucial to the inquest. The judgment refers to his evidence being contradictory [para 20]. However, that is irrelevant: it is the principle that is important. This judgment emphasises that it is critical that the state take reasonable steps to secure relevant evidence as part of its Article 2 investigative duty. This is particularly important where the state exerts complete control over detention centres and detainees.

Second, the Tribunal emphasised that a coroner’s inability to compel witness attendance outside England and Wales does not mean that the investigation is non-Article 2-compliant: “it cannot  properly be suggested that guaranteeing the compellability of each and every potential witness regarding a death in detention is a sine qua non of an Article 2-compliant investigation” [para 75]. It is also notable that, since the pandemic, witness evidence by video link has become much more prevalent in coroner’s courts.

Finally, the Tribunal warned about the division of responsibilities: coroners should not be involved in approving removal decisions. That would be an encroachment on the Home Secretary’s authority, as well as going far beyond the coroner’s remit [para 73].

Caroline Cross is a barrister at 1 Crown Office Row.

Further reading:

• This case is also discussed on the website of Garden Court Chambers here.

[1] Paragraph 1(1)(a) of Schedule 5 to the Criminal Justice Act 2009; R (Shafi) v HM Senior Coroner for East London [2015] EWHC 2106, referring to para 26.

[2] Citation from the PFD letter.