Home Office followed unfair process in investigating allegations of mistreatment at immigration detention centres

The Home Office’s processes for investigating complaints of alleged incidents of staff and contractor misconduct towards immigration detainees has been held to be unlawful by the High Court, because of a failure to disclose the evidence relied on. The case is R (AK) v Secretary of State for the Home Department [2025] EWHC 1651 (Admin).

Background

The claimant was detained under immigration powers from 22 January 2023 to 6 July 2023. He has been diagnosed with serious psychiatric disorders, including severe post-traumatic stress disorder, and has been recognised a potential victim of trafficking.

In June 2023 complaints were submitted on behalf of the claimant alleging unlawful use of force at both Brook House IRC and Harmondsworth IRC. This included one incident on 5 May 2023 where he “was removed by force to the Care and Segregation Unit (CSU) by a team in full riot gear and shields, which he found intimidating and frightening”. The complaints were submitted to the Professional Standards Unit which is responsible for investigating very serious complaints in particular “serious misconduct complaints and serious incidents concerning Home Office staff and contractors”.

The process was summarised at [21] as follows: 

In conducting its investigations, the PSU follows a defined process. This includes interviewing involved parties and witnesses and securing evidence such as CCTV footage where possible. An acknowledgement letter is typically sent to the complainant, requesting any further relevant evidence within seven days. The PSU aims to provide a substantive response within 12 weeks of allocation. Records of complaints are maintained in a log or database. Where criminal allegations are made, these are referred to the police. PSU investigating officers are expected to adhere to the principles within the relevant guidance in investigating misconduct complaints. The Defendant’s relevant published policies on the PSU are: (i) the Detention Services Order 03/2015, Handling of Complaints, dated April 2023 (“DSO 03/15”) and (ii) the Detention Services Order 02/2020, Commissioning reviews of serious incidents occurring in the immigration detention estate and during escort (“DSO 02/2020”).

The usual procedure does not provide for all evidence to be disclosed to a complainant, for example CCTV footage. The subject of the complaint is entitled to see all evidence, subject to redaction where required. Once the investigation has concluded, the unit submits a full report to the Detention Services Head of Operations.

A decision letter is usually issued to the complainant, including the right of appeal to the Prisons and Probation Ombudsman in detention cases. At the time of the claimant’s decision, a copy of the full report was not disclosed to complainants.

On 12 June 2023 the Professional Standards Unit wrote to the claimant’s solicitors stating that they would not be disclosing evidence but the claimant would be given the opportunity to respond to the officers’ version of events. The solicitors replied asking for disclosure of the “usual procedures” document and arguing that non-disclosure of evidence would disadvantage the claimant. The Professional Standards Unit continued to refuse to disclose the evidence, the reasons being summarised as:

i) Because it was not the “usual procedure.”

ii) Because the Claimant did not require the footage as he was “present during each incident.”

iii) Because the PSU could not disclose evidence that belonged to the private contractors, even if it believed it to be appropriate.

Four separate decisions were issued to the claimant in August and September 2023, one for each of the incidents. The allegations were dismissed in full for three of the complaints and the fourth, relating to the incident on 5 May 2023, was partially upheld on the grounds of the number of staff present which was deemed to potentially amount to inhuman and degrading treatment. The decisions repeatedly referred to and relied on the evidence that the unit had refused to disclose.

The judicial review

The claimant sought to challenge these decisions but also the underlying process, including raising concerns about the independence of the Professional Standards Unit from immigration enforcement. The grounds of challenge to the policy/process were that the following had been breached:

Ground 1: Common law principles of legality, fairness and natural justice and Article 6 ECHR read alone and/or with Article 14 ECHR.

Ground 2: Section 20 and s 29 of the Equality Act 2010 in failing to make reasonable adjustments to the process for the Claimant taking into account the disability arising from significant mental illness.

Ground 3: The Defendant’s investigative duties under Article 3 ECHR to an independent, speedy, fair, and effective investigation into a credible allegation of mistreatment read alone and/or with Article 14 ECHR.

The Home Secretary initially tried to argue that there was no policy or practice, but instead just a “usual procedure”. The court said this “strikes me as a way of avoiding the conclusion that a general policy issue is involved, and that the invariable application of a “usual procedure” constitutes a practice”. Instead, the court found that:

Drawing the threads together, the evidence indicates that the PSU applied a consistent approach to disclosure in the Claimant’s case, characterised by the withholding of underlying evidence such as video footage and witness accounts. This approach was described by the Defendant as a “usual procedure”, but as the Claimant argues, its application was not based on the specific facts and needs of his case, but rather a standard practice of non-disclosure. The very description of it as “usual procedure” or even “established practice” suggests a level of consistency that goes beyond individual discretion. On the material before me, I find that the PSU’s handling of disclosure in the Claimant’s case was conducted pursuant to a discernible policy or practice of generally withholding underlying evidence from complainants, rather than a flexible, case-by-case approach.

Once this point had been established, the court went on to conclude that the failure to provide the claimant with the underlying evidence, so that he could understand, comment, correct or contradict as needed, had deprived the claimant of “a fair opportunity to participate effectively in the investigation”. The court said that this was a breach of his right to procedural fairness under common law. 

The other two grounds were dismissed.

Conclusion

This case was heard in July 2024 and Detention services order 03/2015 about handling complaints in immigration centres has been updated twice since then. Presumably in response to this or similar challenges, it now provides for a full copy of the report to be sent to complainants along with the substantive response. I can’t see that there has been anything published relating to disclosure of evidence, so there may be more to come on this point.