Immigration guidance ruled unlawful

Aspects of the defendant Secretary of State’s Adults at Risk in Immigration Detention guidance on the definition of torture were unlawful. The Administrative Court held that it had conflicted with section 59 of the Immigration Act 2016 and had lacked a rational or evidence base. The United Nations Convention against Torture definition would require medical practitioners to reach conclusions on political issues, which they could not rationally be asked to reach.

Background

The individual claimants issued judicial review proceedings, seeking damages for unlawful immigration detention. The principal issue in the proceedings was their contention that the defendant Secretary of State had issued unlawful statutory guidance and policies arising from the way in which victims of torture were defined, through the adoption of the definition of ‘torture’ in the United Nations Convention against Torture (UNCAT). The claimants contended that had the effect of excluding those who were victims of torture by non-state actors from those whose circumstances indicated vulnerability to harm in detention.

Application allowed.

Issues and decisions

(1) Whether the difference between UNCAT torture and torture as defined in R (on the application of EO) v Secretary of State for the Home Department ([2013] All ER (D) 248 (May)) meant that the Adults at Risk in Immigration Detention guidance (the guidance) had purported, unlawfully, to alter the meaning of torture in the Detention Centre Rules 2001, SI 2001/238 rule 35.

EO concluded that ‘torture’ in the Rules and policy documents had a broader meaning than the UNCAT definition. It was not confined to acts by state agents, or in which they were complicit or acquiesced.

The decision in EO had been about the meaning of torture in rule 35(3), as well as in policy documents. That decision had not been appealed and the Rules had not been amended. Therefore, their meaning had been authoritatively decided by the court. It was not open to the Secretary of State, by having issued policy statements, to alter the meaning of a statutory instrument, whether expressly or by necessary implication. Therefore, torture in rule 35 continued to mean what EO had found it to mean.

It followed that Detention Service Order 9/2016 (the DSO) was unlawful in its advice to medical practitioners that no rule 35(3) report was required where their concerns were of treatment which did not meet the UNCAT definition of torture, with a specific terrorist group extension. Two template letters and a template report were also unlawful for the same reason. To the extent that the DSO definition had applied to the way in which the Home Office staff had considered the rule 35(3) report and had decided what action to take upon it, it had been unlawful and their actions upon it had too been unlawful.

Further, in theory, the definition of torture in rule 35(3) could be the EO definition, while other definitions of torture could be used for other purposes in the guidance or the Enforcement Instructions and Guidance (the EIG), so a rule 35(3) report could be prepared and assessed under the EO torture definition. However, that was not the basis upon which the guidance, EIG and DSO had been drafted. They had been drafted to be consistent and coherent as a whole. As the Secretary of State had thought that the Rules’ definition had been changed so that all had adopted the same UNCAT torture definition, plus the terrorist group extension, so that the same definition had been applied across all the documents, the guidance had been promulgated without consideration of a material consideration, namely, that the definition of torture for the purposes of rule 35 remained the EO definition and the Rules remained unchanged (see [126]-[129] of the judgment).

R (on the application of EO) v Secretary of State for the Home Department [2013] All ER (D) 248 (May) applied.

(2) Whether the guidance contained an exclusive list of indicators of particular vulnerability, such that some instances of vulnerability which fell outside UNCAT torture, but within EO torture, were excluded from the indicators of vulnerability.

The inclusion of the UNCAT definition, plus terrorist groups, with no specific reference to other circumstances in which torture might be inflicted within the EO definition led firmly to the conclusion that the UNCAT definition, plus the terrorist groups, had to have been intended as the exclusive definition of torture.

The Secretary of State had intended that the list of indicators should not be exhaustive and that intention was reflected in the language of Ch 55b of the EIG. However, that result had not been achieved in the guidance to which Ch 55b of the EIG had to relate (see [135], [142] of the judgment).

(3) Whether the guidance was unlawful, either because, in order to satisfy section 59 of the Immigration Act 2016, more general provision for unspecified indicators of particular vulnerability to harm in detention had been necessary or because the use of the UNCAT definition of torture had perpetrated a distinction between UNCAT torture and EO torture.

On the basis of that interpretation of the guidance, it was unlawful in the way in which the torture indicator had been limited to the UNCAT definition of torture, plus terrorist groups holding territory and the limited additional category of unforeseen cases. That unlawfulness could be expressed in a variety of ways.

First, the guidance as formulated fell short of meeting the statutory purpose which it was required to meet on the basis that there were some people, excluded from the scope of UNCAT torture who did not fall within another indicator, but were particularly vulnerable to harm in detention. It was, to that extent, beyond the powers of section 59 and unlawful on that basis. That was the primary way in which the guidance had been unlawful.

Second, the guidance drew a distinction between its variant of UNCAT torture and EO torture, which affected the assessment of particular vulnerability to harm in detention. The evidence was that such a distinction did not relate to the relevant vulnerability. The correct interpretation of the guidance, limiting the specific indicator of torture to the UNCAT definition, with no comprehensive coverage by other specific indicators or some more general provision, had no rational or evidence base.

Third, the judgment about whether somebody was particularly vulnerable to harm in detention as a result of the infliction of severe pain and suffering was likely to be made by a medical practitioner. The UNCAT definition of torture, with or without the terrorist group variant, required investigation and judgements to be made about political issues by medical practitioners who were very unlikely to have the knowledge and expertise to make them. It was irrational for the issue and its investigation to be left to the medical practitioner, if that definition was to be used, without further provision in the guidance dealing with how the non-medical issues raised by the UNCAT definition of torture were to be covered (see [147], [152], [153], [162] of the judgment).

(4) Whether the public sector equality duty in section 149 of the Equality Act 2010 had been complied with.

It was not possible for the Secretary of State to have reached a lawful view on the equality duty without having understood the true meaning of her policies in the first place. It inevitably followed that her consideration of the equality impacts and duties would have been undertaken on a false basis. The fact that, on the correct interpretation of the guidance, there might be a breach of the public sector equality duty, did not add anything to the contention that it needed to be amended (see [188] of the judgment).

Stephanie Harrison QC and Shu Shin Luh (instructed by Bhatt Murphy Ltd) for the first to third claimants.

Christopher Buttler and Ayesha Christie (instructed by Duncan Lewis Solicitors Ltd) for the fourth to eighth claimants.

James Strachan QC and  Rory Dunlop (instructed by the Government Legal Department) for the Secretary of State.

Nathalie Lieven QC and Sarah Hannett (instructed by the solicitor to the Equality and Human Rights Commission) for the Equality and Human Rights Commission, as intervener.

Karina Weller - Solicitor (NSW) (non-practising)