The High Court has refused to extend key safeguards under the Adults at Risk policy to immigration detainees held in prisons. In MR (Pakistan) & Anor v Secretary of State for Justice & Ors [2019] EWHC 3567 (Admin), Mr Justice Supperstone decided that healthcare protections for vulnerable detainees on the UK prison estate need not be equivalent to those in place for detainees in immigration removal centres (IRCs).

Supperstone J found that, even though the system for managing vulnerable detainees (in this case, victims of torture) in prisons “could be improved”, it was not so unfair as to be unlawful. Agreeing with counsel for the defence that IRC detention is fundamentally different to detention in prison, he decided that:

The claim… fails to have regard to a critical distinction between individuals who are entering immigration detention in IRCs and those who are entering immigration detention in prisons.

The judge went on to say:

…the two regimes and the two cohorts are so different that either they are not properly comparable or the differential treatment is justified by the difference between the cohorts.

This judgment will come as a disappointment to practitioners advocating for change to the murky practice of detaining people in prisons at the end of their criminal sentences. Used in cases of serious criminality or where there is a high risk of harm to other detainees, detention in prisons is far more onerous than in IRCs. As any practitioner who has worked with detainees in prison will tell you, communication is extremely difficult and with no legal support available for immigration detainees in most prisons, accessing legal advice can be near impossible.

No Rule 35 system in prisons

Under challenge in this case was the lack of process for identifying vulnerable detainees held in prison similar to that available in IRCs under the Detention Centre Rules 2001 – commonly known as the “Rule 35” process. Rule 35 places a duty on medical practitioners to report any concerns about vulnerable detainees to the Home Office, who must consider the medical findings and review the person’s detention accordingly.

No such process is available to detainees held in prison. The most similar provisions are those for “special illnesses and conditions” under Rule 21 of the Prison Rules 1999. In the claimants’ view, these did not cater for the unique healthcare needs of immigration detainees, such as potentially being a victim of torture.

“Could be improved”, but nothing systemically wrong

In particular, the lack of any requirement under Rule 21 for medical concerns to be reported directly to the detaining authority meant that injurious immigration detention could continue indefinitely without any meaningful consideration by the Home Office of its harmful effects.

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In claimant AO’s case, the absence of an equivalent Rule 35 process meant that the Home Office was only informed of his history of torture after he was transferred to an IRC – two and a half years after he had first communicated his trauma to prison healthcare.

The lack of a requirement for the prison healthcare team to inform the Home Office meant the issue was overlooked, even when there was “evidence of frank psychosis” recorded on the prison healthcare records. Only after receiving AO’s Rule 35 report did the Home Office accept that he was an adult at risk.

This did not sway Supperstone J, who said:

I reject the contention that the absence of equivalent rules to Rules 34 and 35 applying to the prison estate leads to inherent unfairness and unreasonableness, resulting in the scheme governing the detention of immigration detainees held in the prison estate being unlawful… The evidence before this court leads me to the conclusion that there is nothing inherently wrong with the system that applies in the prison estate, even if it could be improved.

This is likely not the end of the issue. In the meantime, practitioners should stay alert to the vulnerabilities of prison detainees. Where vulnerability of a prison detainee is suspected, medical records should be requested and where necessary, independent medical evidence be submitted to the Home Office. This may at the very least force the Home Office to transfer the person to an IRC, where the regime is (a little) less oppressive.

No unreasonable delay in finding bail accommodation

Supperstone J also rejected a second challenge that there had been an unreasonable delay in identifying approved premises for AO to be released on bail. He rejected the argument that Ministry of Justice delays kept AO detained for an unreasonable amount of time, finding that it was justified because of how difficult it was to find bail accommodation for someone with AO’s offending history and risk profile.

Delays in finding approved premises for release are yet another obstacle faced by detainees with a criminal history and can often be the only thing standing in the way of release. While unsuccessful in this case, it is positive to see this issue of probation delays being brought to the attention of the courts. The indomitable Bail for Immigration Detainees has useful self-help materials for detainees on this very issue, and has written a guide on How to apply for bail accommodation here on Free Movement.