Alex Schymyck: Vulnerable Detainees in Prison Illustrate the Need for Consistency as a Ground of Review

In R (MR (Pakistan)) v Secretary of State for Justice & Others, the High Court rejected a claim that the inequality in procedural protections available to vulnerable immigration detainees, which depend significantly on the venue of detention, is irrational. The nature of the decision, which fails to properly evaluate the reasons advanced for the difference, highlights two problems caused by the Supreme Court’s refusal to accept consistency as a ground of review in R (Gallaher Group Ltd) v The Competition and Markets Authority. Firstly, the lack of a clear framework for how irrationality should be applied creates a risk that judges accept tangential or irrelevant justifications for inconsistency. Secondly, by keeping consistency within the irrationality framework without any articulation of how separation of powers concerns fluctuate in different contexts, there is a risk of overly deferential decisions. In MR (Pakistan) both of these risks materialised with seriously deleterious consequences for immigration detainees held in prisons.

Detention centres v prisons

Immigration detainees may be detained in Immigration Removal Centres (IRCs) or prisons. There is no difference in the primary legislation empowering the Secretary of State for the Home Department to detain according to venue. The venue of detention is an arbitrary decision and in practice is often influenced by the relative proximity of the nearest IRC and prison. At present, most detainees in prison have committed crimes but many have not and there is no legal requirement to allocate detainees in this way.

Vulnerable detainees

Section 59 of the Immigration Act 2016 imposes a duty on the Secretary of State for the Home Department to identify, firstly, the characteristics that make someone particularly vulnerable in detention and, secondly, the circumstances in which it is permissible to detainee such persons. On the face of the primary legislation, one would expect all vulnerable detainees to be able to access the protection of the statutory guidance regardless of the venue of detention.

However, there is a significant difference in the mechanisms for reporting vulnerabilities to Home Office officials in charge of detention. In IRCs, Rule 35 of the Detention Centre Rules 2001 requires medical practitioners to report to the Home Office if any detainee is likely to be injured by detention, displays suicidal ideations or appears to be a victim of torture. The Prison Rules 1999 do not contain any requirement to report such information to the Home Office, with the result that a vulnerable detainee may languish in prison while the official who has ordered their detention is simply unaware of their condition.

High Court decision

The claimants challenged the Prison Rules on the ground of consistency and cited Gallagher. Supperstone J identified a contingent difference between the two cohorts of detainees (most detainees in prison will have previously been imprisoned) without analysing whether it was rationally connected to the difference in the two regimes or evaluating whether the difference in detention venue is sufficient to justify that difference. At Paragraph 91, he says:

The claim, based on the applicability of Rules 34 and 35 to IRCs alone, Mr Tam submits, and I agree, 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. In the main, detainees who enter IRCs enter detention from liberty. That being so there may well not be available to the SSHD up-to-date healthcare information about the individual. Rules 34 and 35 ensure that there is a process on induction to an IRC for ascertaining whether there are matters about which the SSHD should be aware relevant to the question of whether the detainee is fit to be detained in an IRC. Such information needs to be obtained speedily. By contrast, detainees who are in prison at the time they become immigration detainees are likely to have been serving a custodial sentence. Not only will a prisoner have undertaken an NHS health screening on entry to prison as a result of which relevant medical information will be recorded, but prior to the expiration of a custodial sentence in order for a decision to be taken as to whether an individual should be detained under immigration powers at the completion of their sentence, application of the Guidance will involve consideration of medical evidence. If there is no up-to-date medical evidence available, it should be requested from the prison health care services.

It is true that, generally, detainees enter IRCs from liberty and enter detention in prison from custody in prison but is this sufficient to justify the difference in reporting duties? Firstly, since the Prison Rules in question do not contain any duty to report vulnerabilities to the Home Office the previous period of incarceration is irrelevant; there is no reason to expect that information about vulnerabilities will have been communicated to the Home Office during that period. Secondly, Rule 35 imposes an on-going requirement to report vulnerabilities for the obvious reason that vulnerabilities may only develop or be discovered long after the initial decision to detain. For example, a detainee may enter detention with sound mental health but develop suicidal ideation as a result of prolonged detention awaiting deportation. There is no possible justification for requiring IRC medical practitioners to report such information but not imposing a similar requirement on prison doctors. Finally, Supperstone J says that if no up-to-date medical information exists then it should be requested. But the problem is that Home Office officials have no way of knowing whether the information they have is out of date and irrelevant because a detainee has developed a vulnerability. Effectively, the judge is recommending that officials make routine and regular requests for medical updates in every single case, which would submerge prison doctors and staff in administrative duties, in order to avoid concluding that the absence of a reporting requirement in the Prison Rules is an irrational mistake incapable of justification.

A deeper problem

The fact that such a senior administrative law judge has struggled to apply the general rationality criterion in this case suggests a deeper problem with how the values of equal treatment and consistency are employed in administrative law. Of course, claims relying on equal treatment and consistency will often put judges in an uncomfortable position and raise concerns about the separation of powers. Judges should be wary of stepping on the executive’s toes and should display appropriate deference. Nonetheless, by acknowledging these problems and developing rules to deal with them, the correct way forward would become clearer.

A structured approach focused on consistency would be better. Courts should first identify the effect of the difference in treatment, secondly consider whether the justification advanced really relates to the issue and finally examine whether the matter is one of such administrative complexity that a high level of deference is appropriate would be better. This structure would introduce some realism into decision-making. In this case, all the claimants wanted was for prison doctors to be obliged to send a brief letter or e-mail making the official in charge of their detention aware that they were suffering, as is already done in IRCs. The claimants were seeking a small but significant change in procedure, rather than a substantial change in policy about the detention of vulnerable people. There was no need for the court to display extreme deference to the executive by accepting a tangential and weak justification.

The problems with this approach to inconsistent treatment can be contrasted with the Supreme Court’s application of Article 14 ECHR in recent cases concerning the bedroom tax. In R (Carmichael) v Secretary of State for Work and Pensions the Supreme Court applied a structured approach to analysing the difference in treatment and carefully evaluated the appropriate level of deference to apply before identifying that in one of the cases before it there was a difference in treatment which was not justified. In the present case, Supperstone J rejected the claimants arguments under Article 14 ECHR in a single sentence, adopting the same reasons used to reject the irrationality challenge.

The decision is under appeal and it should be hoped that the Court of Appeal will adopt a more rigorous approach.

Alex Schymyck teaches Public Law at Queen Mary University of London.

(Suggested citation: A. Schymyck, ‘Vulnerable Detainees in Prison Illustrate the Need for Consistency as a Ground of Review’, U.K. Const. L. Blog (24th Feb 2020) (available at