The High Court has decided that rule 35(2) of the Detention Centre Rules is not unlawful, despite acknowledging the overwhelming evidence that it has failed to protect the welfare of detainees who are at risk of suicide. In R (IS (Bangladesh)) v Secretary of State for the Home Department [2019] EWHC 2700 (Admin), the rule was challenged by a detainee who had been consistently identified by healthcare staff as presenting a risk of suicide, yet no rule 35(2) report was ever made to report this information to Home Office officials and trigger a detention review.

Rules 35(2) on suicidal immigration detainees

Rule 35(2) places a duty on the detention centre GP to report any concerns they have suicidal detainees to the Home Office. It states that:

The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

Note that this is separate from the duty under rule 35(3) to report concerns that a detainee is a victim of torture.

Once a report is made there will normally be a review of detention under the Home Office Adults at Risk policy. If the report makes clear that detention has created a risk of harm to the detainee, there is a good chance the detainee will be released if the policy is applied correctly.

Therefore, it is imperative that GPs complete a Rule 35(2) report whenever appropriate.

Awful, but lawful

The judgment records that there is overwhelming evidence that Rule 35(2) is simply not working in practice:

The Claimant’s solicitors have compiled statistics secured from requests of the Defendant made under the Freedom of Information Act 2000. These show that in the final quarter of 2017 528 people were on ACDTs [a suicide monitoring process]. Yet in the whole of 2017 only 10 r35(2) reports were completed. A report of Her Majesty’s Chief Inspector of Prisons shows that in Colnbrook IRC in the final quarter of 2017 there were 154 detainees on constant supervision because of a risk of self-harm/suicide. Only 10 were the subject of 35(2) reports.

Jeremy Johnson QC, sitting as a deputy High Court judge, also recorded the concerns about rule 35(2) in Stephen Shaw’s report on immigration detention:

No one that Mr Shaw consulted expressed satisfaction with the arrangements. He concluded that r35 was not doing what had been intended, and he recommended that the Home Office immediately consider an alternative to the current rule (see paragraph 12 of the Executive Summary, and see paragraphs 4.92-4.121 of the report).

The judge accepted that in the case before him, a rule 35(2) should have been made:

In the present case the Claimant argues that it is extraordinary that no r35(2) report was ever done. I agree that such a report ought to have been completed. On 9 October 2018 Dr Hillier provided information to the effect that the Claimant was a suicide risk and that a r35(2) report was required. There was evidence at many earlier points that the Claimant was a suicide risk. The medical practitioner could not reasonably have discounted that risk, and there is no evidence that he did so. There was therefore a statutory obligation to complete a report. The reason it was not done was because of confusion.

The claimant argued that rule 35(2) is irrational because it only places an obligation on the detention centre GP, rather than a wider obligation on all clinicians to report their suspicions of suicide risk to the Home Office. Jeremy Johnson QC disagreed. While he acknowledged that there was evidence of systemic failure in the Rule 35(2) reporting system, he found that this was not a result of the legislative choice to place the reporting obligation on GPs only:

It does not follow that the legislative choices that underpin r35(2) were or are irrational. There may be many reasons for the apparent systemic failings. They might include policy failings (both in relation to the treatment of r35(2) reports, and in relation to the receipt of information outside r35), lack of training, failure to follow the existing policy, failing to follow the requirements of r35 (eg in setting the bar too high – higher than a test of “suspicion”), or a combination of those (and no doubt other) factors.

As a result, he concluded that rule 35(2) itself is not irrational.

Suicide watch a human rights breach

Separately, the judge found that the claimant had been unlawfully detained on Hardial Singh grounds and under the Adults at Risk policy. He also concluded that there was a breach of Article 8 by placing IS under intrusive constant observation because of his suicide risk while he was being unlawfully detained:

Of course, a court will be slow to find that a measure imposed for a person’s safety amounts to a breach of Article 8 ECHR. However, the Claimant should not have been detained during this period in any event. Putting him under constant observations for this period of time amounted to an interference with his right to respect for private life which could not (since the detention itself was unlawful) be justified. It amounted to a discrete breach of the Claimant’s rights under Article 8 ECHR.

The finding that constant observation is a breach of Article 8 where detention itself is unlawful will increase the damages available to people who have been unlawfully detained while at risk of suicide.

Falling through the gaps

The claimant’s failure to establish that rule 35(2) is irrational illustrates a fundamental problem with judicial review. IS successfully demonstrated a systemic failing in the detention system and that he had been a victim of this systemic failure. Nonetheless, he was unable to put his case within any of the traditional grounds of judicial review in order to establish that the Home Office had done something unlawful.

There is a gap in English administrative law for cases where an executive agency has promised Parliament (in this case through the Detention Centre Rules) to do something, but has failed to implement an efficient system and thereby not fulfilled its promise. In this type of case the High Court is failing to enforce the law against the executive. Perhaps a new ground of judicial review, such as systemic administrative failure, is required to hold the government to account.