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System for investigating deaths in immigration detention declared unlawful


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In R (Lawal) v Secretary of State for the Home Department (death in detention, SoS’s duties) [2021] UKUT 114 (IAC), the Upper Tribunal has decided that the Home Office’s policies on the death of immigration detainees are contrary to its procedural obligations under Article 2 of the European Convention on Human Rights to secure relevant evidence. An emphatic judgment by Mr Justice Lane and Upper Tribunal Judge Canavan found that the lack of guidance to officials considering the removal of potential witnesses was “legally deficient”. 

It’s pretty safe to say that our current Home Secretary has had a “Priti” rough time so far, not improved by the deluge of media coverage received by this judgment over the past 24 hours. The fact that the Home Office continue to defend cases like this probably doesn’t help.

Background: death in detention

To set the scene, this case arose because of the death of a detainee, Mr Oscar Lucky Okwurime, in Harmondsworth Immigration Removal Centre. Mr Okwurime was only 36 years old when he was found dead in his room at 11:12 am on 12 September 2019. 

The applicant, Mr Lawal, had been good friends with the deceased and was a potential witness to the death. His request that his removal from the UK be deferred to assess whether his evidence was relevant was refused and he was given removal directions for 17 September 2019. On that day, an injunction was issued preventing his removal.

On 21 October 2020, the Area Coroner for West London wrote to the Home Office confirming that Mr Lawal was “an important witness of fact and… the only live witness who can speak to… the presentation of the deceased in the days before his… death”. At an inquest hearing in November 2020, the jury decided that the death was due to neglect attributed to “multiple failures to adhere to the healthcare policy”.

The judicial review challenge

The application for judicial review by Mr Lawal raised the questions of:

  1. Whether Mr Lawal’s proposed removal was lawful;
  2. Whether the Home Office can lawfully remove a potentially material witness to a death in immigration detention where that witness has not yet given evidence and the coroner has not made an assessment of whether their evidence is required at an inquest;
  3. Whether the lack of guidance to officials considering removals on the obligations to investigate witnesses to a death, is lawful

The answer to all three questions was a resounding no. 

The starting point was the procedural duty under Article 2. This requires “an effective, independent investigation into circumstances concerning the loss of life within the territory of the Member State concerned”. In respect of the Home Office, this included an obligation to secure the evidence of potential witnesses and to encourage detention centre staff to be proactive in doing so. 

The deaths in detention policy

The initial policy on deaths on detention was called Detention Services Order 08/14, published in 2012 and updated in 2016. The Upper Tribunal found that this policy gave rise to an “unacceptable risk” that the Home Office would fail to secure relevant evidence, as it only focused on obtaining evidence from detention centre staff and therefore was inadequate to its Article 2 duties. This was manifested in practice as well as in principle: a notice delivered to detainees following the death of Mr Okwurime did not request them to come forward if they had relevant evidence and did not urge staff to be proactive in investigating any potential witnesses. 

A later version of the policy, dated August 2020, was still deficient because it still didn’t impose a duty on the centre staff to be proactive in identifying relevant witnesses. This was important, said Lane J, because the detention centre staff “will inevitably be first on the scene”. 

The role of the coroner

Mr Lawal’s lawyers argued that it should be up to the coroner to decide whose evidence about a death in detention is relevant. Before the coroner has made that decision, no removal of potential witnesses should be allowed. 

The tribunal rejected this argument. The proposal of leaving everything in the hands of the coroner was an “undue fetter on the ability of the respondent to discharge her statutory functions in the immigration field…[and] would be open to abuse”. The coroner does not have the final approval on who can be removed — but the Home Office’s obligations as an “irreducible minimum” are:

  1. To take immediate steps to ascertain whether any detainee has evidence to give about the death;
  2. To record, or facilitate the recording of, a statement of that evidence;
  3. To determine whether the individual is willing to give evidence at the inquest;
  4. To record relevant contact details of the individual, including in the country of proposed removal; and
  5. To consider the practicability of the individual giving evidence at the inquest either (i) by returning to the United Kingdom for that purpose or (ii) by giving evidence by means of video-link.

The fact that officials who were considering removals were not told to have regard to such procedural obligations was legally inadequate. Officials are obliged to consider the likely importance of the detainee’s evidence and their ability to maintain contact if removed from the UK.

A rare but important case

Cases like this don’t come up often, for obvious reasons, but fixing the glaring gaps on the investigation of deaths in detention is welcome in itself. More generally, the case highlights the importance and flexibility of the judicial review process — something which is under severe scrutiny at the moment. As Duncan Lewis Solicitors and Garden Court Chambers, representing Mr Lawal, put it:

but for the intervention of publicly-funded lawyers and last minute judicial review action, necessitated by what is now known to have been unlawful decisions to remove and failures to have in place adequate policy frameworks to ensure that evidence is secured, this important witness to a death in custody would have been removed from the jurisdiction and the coronial investigation weakened. Amongst other things, the case is a vindication of the rule of law and access to justice, guaranteed by judicial review.

Without having a means of challenging his removal, Mr Lawal would probably have been removed and the inquest might not have been able to reach the same conclusion without his evidence — nor to hold the Home Office to account for its failures.

Download the court order in the case.

The official headnote

(1) In considering the Strasbourg caselaw as to the extent of the Article 2 procedural duty to investigate a suspicious death (including a death that occurs whilst in immigration detention in the United Kingdom), it is important to bear in mind that the ECtHR is concerned with the entirety of the process, beginning with the initial steps to secure evidence and ending with the actual investigation or trial. Although the investigation or trial must be conducted with the requisite degree of independence, it by no means follows that the duty to secure evidence cannot involve those such as the Secretary of State for the Home Department and her service providers, who will not be conducting the subsequent independent investigations. On the contrary, given that, in the context of a death in detention, the service providers and the Secretary of State’s relevant officials at the detention centre will inevitably be the first on the scene, they clearly must take the initial steps to secure evidence. This is so, irrespective of the fact that, in order of likely appearance, the police, the Prisons and Probation Ombudsman’s investigators and HM Coroner will also become actively involved.

(2) Furthermore, it is important to acknowledge that the ECtHR has been at pains to state that the steps to be taken are “reasonable” ones. What is reasonable will depend, not only on the circumstances of the death but also the nature and purpose of the detention facility, such as whether it is holding individuals who face removal by the Secretary of State from the United Kingdom, in pursuance of her functions, conferred by Parliament, of enforcing immigration controls.

(3) The irreducible minimum obligations of the Secretary of State in this area are:

(a) to take immediate steps to ascertain whether any detainee has evidence to give regarding the death in detention;

(b) to record, or facilitate the recording of, a statement of such evidence;

(c) to determine whether the individual is willing to give evidence at the inquest;

(d) to record relevant contact details of the individual, including in the country of proposed removal; and

(e) to consider the practicability of the individual giving evidence at the inquest either (i) by returning to the United Kingdom for that purpose or (ii) by giving evidence by means of video-link.

(4) The Detention Services Order 08/2014: Death in Immigration Detention (August 2020) fails adequately to address the vital function of detention centre staff in identifying those detainees who, because of physical proximity to the deceased or other known associations, are likely to have relevant information, whether or not they have chosen to come forward of their own accord. The current policy of the Secretary of State is, therefore, not compliant with Article 2 in its procedural form.

(5) The Secretary of State’s present policy framework is also legally deficient in that there is nothing in her policy concerning removals; namely Judicial Reviews and Injunctions – Version 20.0 (10 October 2019), which guides her immigration officials to act compliantly with Article 2 in its procedural form, when making decisions as to the removal of an individual.

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Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.