This article is about the High Court and Court of Appeal decisions in the leading (and so far only) case on segregation in immigration detention. They are R (Muasa) v Secretary of State for the Home Department [2017] EWHC 2267 (Admin) and R (TM (Kenya)) v Secretary of State for the Home Department [2019] EWCA Civ 784, the second of which was handed down on 3 May 2019.

Segregation, or “removal from association” in detention centre jargon, is when a detainee is separated from the other detainees and placed in a room on their own i.e. in solitary confinement. The decisions in this case explain and develop the legal regime on segregation within immigration detention.

Segregation only allowed where necessary

Detention Centre Rule 40 allows the detention centre manager to segregate a detainee from others:

where it appears necessary in the interests of security or safety that a detained person should not associate with other detained persons.

The Rules also provide conditions for the exercise of that power. In particular, segregation for more than 24 hours must be authorised by the Secretary of State; written reasons must be given to the detainee within two hours; and segregation cannot last for more than 14 days.

Article 8 is engaged

The High Court ruled that Article 8 of the European Convention on Human Rights is engaged by segregation in immigration detention. Therefore, any breach of the requirements of Rule 40 will also be a violation of Article 8 and potentially result in damages.

In this instance Mr Justice Holman decided that the Home Office was not liable to pay damages because the unlawful period of segregation only lasted for four hours and was a result of failure to correctly authorise segregation after the initial 24 hours. Although the decision not to award damages is frustrating, the fact that the High Court has found that Article 8 is engaged opens the door for further claims for damages and also challenging segregation decisions for being a disproportionate interference with Article 8 rights.

The Home Office did not appeal the decision, thereby accepting it as an accurate statement of the law.

Home Office guidance

There was a dispute in this case about whether the Home Office was required by law to produce guidance on how it would apply Rule 40 (and a related power to segregate detainees in Rule 42). In response to the claim the Home Office did issue a Detention Services Order (02/2017), but both the High Court and Court of Appeal decided that the Home Office had not been required by law to do so because the terms of Rule 40 are clear and easy to apply.

The order clarifies a number of important issues on segregation. First, it confirms that the power should only be used as a last resort and be based on evidence:

It follows from Rules 40 and 42 that they must be used only as a last resort, when all other options have been exhausted or are assessed as likely to fail or to be insufficient as an effective means to address the risk considered to be presented by the detainee. The decision to use Rule 40 must be based on a clear and rational basis. If the risk is assessed on the basis of intelligence or other indications of risk, they must be verifiable sources of information.

Detention Services Order 02/2017, paragraph 19

Second, the guidance states that segregation should not be used as a normal means of managing detainees with mental health problems and emphasises that vulnerable detainees should only be subject to segregation:

– in exceptional circumstances,

– for the shortest time possible;

– as a last resort where all other options for managing the behaviour have been considered and exhausted, or considered to be inappropriate

Third, it says that all representations made by a detainee or their legal representatives must be taken into account when considering whether to continue segregation.

Court of Appeal misapplies the necessity test

Although the Home Office did not appeal from the High Court’s decision, TM did. She is a female asylum seeker who was subject to pre-planned segregation ahead of an attempt to remove her to Kenya. During a previous removal attempt which did not go ahead because she claimed asylum, she was accused of being uncooperative because when immigration officers came to collect her she had just come out of the shower and was covered in body lotion. They still tried to remove her without giving her time to get dressed, but found it difficult to hold her body because of the body lotion.

No civilised person could conclude that such an incident made it necessary to segregate her ahead of the next removal attempt. Nonetheless, the Home Office decided it was appropriate and placed TM in segregation.

On appeal, TM tried to build on the limited relief granted by the High Court. But the Court of Appeal sided with the Home Office.

Lord Justice Holyroyde, having confidently stated that the necessity test in Rule 40 is simple and straightforward to apply, then failed to apply it properly. He decided that it was not even arguably irrational that the Home Office was wrong:

I accept Mr Tam’s submission that although RFA [segregation] could not guarantee that the appellant would not resist her removal, it would reduce the risk of her doing so and would make it significantly easier to manage her in a way which reduced the risk to safety and security. In those circumstances, the decision that it was necessary to remove the appellant from association with other detainees well in advance of the removal planned for 3^rd August was not even arguably irrational, and the judge was correct to refuse permission to apply on ground 4, and on ground 5 in relation to the first 24 hours of RFA.

The court wrongly concluded that because segregation reduced the risk to safety and security it was also necessary. Any use of segregation will reduce the risk to safety and security presented by a detainee, even if only by a small amount. But to show that it is necessary the court should have required the Home Office to demonstrate that alternative measures would not be sufficient and balance the reduction in risk against the harm to the detainee caused by segregation.

The Court of Appeal’s decision is inhumane and a misunderstanding of the meaning of necessity. It demonstrates the need for clear guidance on how to apply the necessity test in Rule 40, which has only been partially addressed in the Detention Services Order.

Conclusion

Overall, though, the two decisions in this case amount to a significant step forward in limiting the Home Office’s power to segregate detainees. The procedure for doing so is much more transparent as a result of the Detention Services Order, which should reduce unlawful behaviour by Home Office officials and help lawyers seeking to challenge segregation by judicial review. More cases need to be brought to define the circumstances in which segregation violates Article 8.