The Court of Appeal says “yes”, it is generally lawful to detain immigration detainees in prisons rather than detention centres. The case is R (On the Application Of Idira) v The Secretary of State for the Home Department [2015] EWCA Civ 1187 and the Court rules that there is no principle that administrative immigration detention in prison generally breaches Article 5(1) of the European Convention on Human Rights, the right to liberty. In giving judgment, though, the Master of the Rolls acknowledges that “detention in an IRC is generally more appropriate for immigrant detainees than detention in prison”.

There is lots of use of the word “generally” here, you may notice. The judgment does potentially leave open the way for challenges in individual cases:

For some vulnerable detainees, detention in prison may be seriously inappropriate and on that account arbitrary. But it must always depend on the vulnerability of the detainee and the nature of the prison conditions. Prison regimes are not uniform. Open prisons are very different from high security prisons. By the same token, the conditions of IRCs are not uniform either. In my view, the question whether a person is being detained in a place and subject to conditions which are seriously inappropriate must be answered by having regard to all relevant circumstances. A prison is not an inappropriate (still less a seriously inappropriate) place in which to detain an able-bodied man who is due to be removed from the country on the ground that his criminality makes his departure conducive to the public good and whom the public interest requires to be detained while that is arranged.

The applicant in this case was in his early thirties at the relevant time, in good health and had no particular vulnerabilities. His case was perhaps not ideal, then, for winning the case on the facts, particularly given there are so many genuinely vulnerable immigration detainees out there. It is another example of high risk approach to strategic litigation and the gamble seems not to have paid off.

There is a note about the case available on the Bhatt Murphy website by Counsel for the claimant, Graham Denholm, which I can recommend.

The judgment will also perhaps be of interest to litigators for the award of costs to the applicant on an indemnity basis for the late respondent’s notice in this case. In his short concurring judgment McCombe LJ draws attention to similarly dilatory conduct in the recent case of R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173, in which concern was expressed about:

a pattern of delays on the part of this particular respondent in complying with the rules as to the time for filing respondents’ notices

The “particular respondent” is the Secretary of State for the Home Department and the Court is signalling a willingness to penalise poor litigation conduct with awards of costs. Will this filter down to the Upper Tribunal? Not so far.