High Court finds safeguarding failures by Home Office at Brook House detention centre

In a stinging judgment, the High Court has found that the Home Secretary failed to comply with an article 3 systems duty in the operation of the rule 35 system in Brook House immigration removal centre, at least between 28 July 2023 and 11 March 2024. The case is AH and IS v Secretary of State for the Home Department [2025] EWHC 3269 (Admin).

The judgment is a further criticism of the operation of the much criticised detention centre, following the Brook House Inquiry, where 33 recommendations were made to ensure that the highly publicised incidents of mistreatment there would not occur again. Unfortunately, it appears that these recommendations do not appear to have been heeded.

The judgment also provides a further finding of an article 3 breach occurring in the immigration detention system following the other cases of R (On The Application Of CSM) v Secretary of State for the Home Department [2021] EWHC 2175 (Admin) (Free Movement write up here), R (AK) v SSHD CO/4703/2022 and R(AJ) v SSHD CO/4709/2022.

Article 3 ECHR systems duty

Article 3 prohibits a state from inflicting inhuman or degrading treatment or punishment. It also imposes certain positive obligations on the state. These include putting in place a legislative and regulatory system for protection (often referred to as the “systems duty”). They also include an obligation to take operational measures to protect specific individuals from a risk of being subjected to treatment contrary to article 3 (often referred to as “the operational duty”). 

Background

The claim was brought by two former detainees at Brook House, AH and IS, who were detained between 2023 and 2024.  This was neither man’s first time in detention or IRC Brook House, as both had been detained previously and evidence existed that their previous detention had caused them serious harm.

The claimants contended that the Home Secretary’s conduct during their detention is reflective of systemic failures, meaning that they were detained in conditions which constituted a breach at the time of detention, and showed an ongoing breach, of the article 3 ECHR “systems duty”.

In particular, IS had previously been detained for 28 months, resulting in a judgment, IS Bangladesh v SSHD [2019] EWHC 2700 (Admin) where Jeremy Johnson QC (as he then was) found that IS had been unlawfully detained for part of the time period and further found that he had his article 8 rights breached when placed under constant observation for a period of 75 days.

AH 

AH was initially detained on 5 December 2023; his second time being detained under immigration powers. It was noted in his introductory healthcare screening that he had suicidal thoughts, heard voices, and had a history of self-harm. He was placed on ACDT (a care plan intended to reduce the distress of those in detention and mitigate the risk of self-harm or suicide) but the concerning clinical picture did not lead to a rule 35(1) or (2) report.

On 20 December 2023, a rule 35(3) report was carried out, wherein the IRC GP noted that AH may have been a victim of torture. However, the GP did not express concerns that detention would be injurious to AH’s mental health and did not provide an ongoing referral for a rule 35(1) or (2) report. The GP was unaware of AH’s history of self-harm and suicidal thoughts as well as the previous two medico-legal reports.

The Home Secretary concluded that AS was a level 2 Adult at Risk and maintained his detention.

As his detention continued, AH’s mental health started to deteriorate, causing him to self-harm in January 2024. Despite AH’s troubling medical history and the violent nature of the self-harm, it appears from the medical records that this was considered to be an isolated incident and again, a further rule 35 assessment was not contemplated.

His mental health further deteriorated in February 2024, and AH self-harmed on multiple occasions and was placed in isolation and under ACDT.

On 9 February 2024, AH was seen by Dr Alsaraf of Medical Justice who expressed serious concerns about his declining health, expressly recommending a rule 35(1) and (2) assessment. No referral was made and no assessment was forthcoming. After the intervention of his solicitors, AH was eventually released from detention on 11 March 2024. AH was detained for 94 days in total.

IS

Some of IS’s previous judgments – from a proper period of detention – have been reported on by Free Movement previously as Mrs Justice Laing provided helpful guidance on immigration detention powers post the Illegal Migration Act 2023.

IS’s facts for this case are dealt with in considerably less detail by the judge, as the Home Secretary had already accepted prior to the hearing that his entire detention had been unlawful.

IS was detained on 28 July 2023. He had an extensive history of self-harm and suicidal thoughts stemming from his previous detention under immigration powers and was therefore known to the Home Secretary as a vulnerable individual. IS also had an asylum appeal pending, with a case management review hearing scheduled a few weeks after he was detained.

In short, during his most recent period of detention, medical practitioners were so concerned about IS’s mental health that they prepared two rule 35(3) reports in October and November 2023 with a GP stating that IS was “at high risk of impulsively attempting to commit suicide” in detention.  

In response to the rule 35 reports, the Home Secretary accepted that IS met level 3 of the Adults at Risk policy. Nevertheless, the Home Secretary found that his continued detention was justified on the basis of the risk of absconding, IS’s previous convictions and his subsequent threat to public safety, and the fact that IS could be removed to Bangladesh within four to six weeks if his asylum appeal was to be dismissed by the First-tier Tribunal.

However, this assessment was predicated on a major factual error: the decision maker had mistaken IS’s scheduled case management review hearing for his substantive appeal hearing, thereby believing that his appeal would be heard much sooner. The Home Secretary then failed to correct her mistake, despite being repeatedly informed that she had made an error.

This extraordinary mistake led to serious harm being caused to IS’s mental health, and a concession that his lengthy detention was unlawful throughout. IS was detained for 168 days in total. 

Rule 35 process

Rule 35 is one of the only effective protective measures in immigration detention to safeguard vulnerable detainees, as medical practitioners must report concerns about their mental or physical health to the Home Office, which ought to lead to a review of their detention.

Practitioners who work with immigration detainees will be aware that what should be an important safeguard is often ignored or misused; including seeing delays in providing a rule 35 response (which ought to be provided within 48 hours), incorrectly assessing individuals as level 2 rather than level 3, and failing to identify those eligible for a rule 35 report  despite clear evidence that one is required.

This litigation explored whether the Home Secretary’s historical reticence to use rule 35(1) and (2) reports was lawful, particularly against the backdrop of high levels of mental ill-health amongst detainees. In the year prior to the hearing, at IRC Brook House alone there were 260 ACDT’s opened and 67 constant supervision plans enacted – yet only 17 rule 35(1)’s and 3 rule 35(2)’s were carried out.

This discrepancy was noted by Mrs Justice Jefford in her judgment; she described the number of rule 35 reports as ‘remarkably low’, especially considering the criticisms made in the Brook House Inquiry.

She went on to find that the Home Secretary had provided no convincing answer or evidence as to why such a discrepancy existed, concluding;

The statistics as to the numbers of Rule 35(1) and (2) reports speak for themselves particularly when compared with the numbers of ACDTs and constant supervisions.  It is inconceivable that if the system were operating effectively, the numbers would be so low.  The numbers have remained at this low level despite the issue, and the causes of the issue, being raised in the Inquiry, in IS’s case and in the subsequent reports referred 

The judgment

The judgment can be considered a vindication of the concerns that have been raised by detainees and NGOs, as well as legal professionals, about the operation of the rule 35 system at Brook House for many years. It is a clear example of how the Home Office have attempted to brush over the criticisms raised in the Brook House Inquiry and that the serious issues that were present in 2017 still exist in 2024.

Indeed, IS and AH had both experienced the problems in Brook House on two separate occasions. Mrs Justice Jefford describes their experiences ‘as emblematic of this failure and the disconnected system and evidence that during the period with which these claims are concerned nothing had changed.’

Mr Justice Jefford found that the Adults at Risk policy and ACDT are disconnected and ineffective and there had been a persistent systemic failure in the operation of rule 35 and safeguards at Brook House. The cases of AH and IS were considered to be representative of wider issues rather then aberrations.

The judgment therefore confirms what many knew already, that the systems at Brook House completely fail to protect the most vulnerable of detainees. Interestingly, it was accepted by the claimants that the issues raised in the judgment were ones of implementation rather than structure. The rule 35 system could work if the Home Office made an effort for it to do so.

The conclusion made by the judge speaks for itself:

Since at least the period covered by the Brook House Inquiry there is a clear and persistent picture of a failure of the system intended to protect the Article 3 rights of adults at risk.  It is characterised by a failure to apply properly or at all the provisions of Rule 35.  As Mr Armstrong submitted, the operation of Rule 35 (and Rule 34) is not simply a medical process but a shared responsibility.  IRC staff are responsible for referring detainees to a GP for assessment and the defendant has a duty of inquiry under the AAR Policy. 

What Now

While AH and IS have achieved the declarations they sought (and will be entitled to damages), it is now incumbent on the Home Office to make major changes within Brook House to protect and safeguard vulnerable detainees. A failure to do so will lead to more harm to vulnerable detainees, more unlawful detention cases, and further findings of breaches of the article 3 systems duty with the detention centre.

Lewis Kett, Jamie Bell, Nicholas Hughes and Elleanor Wilkins Bell instructed Nick Armstrong KC, Toby Fisher and Darryl Hutcheon of Matrix Chambers