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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> SPM & Anor, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 2007 (Admin) (28 July 2022) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2022/2007.html Cite as: [2022] ACD 125, [2022] 4 WLR 92, [2022] WLR(D) 338, [2022] EWHC 2007 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of SPM |
CO/606/2022 Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
CO/606/2022 Defendant |
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And Between |
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THE QUEEN on the application of WOMEN FOR REFUGEE WOMEN |
CO/609/2022 Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
CO/609/2022 Defendant |
____________________
Thomas Roe QC and Simon P G Murray (instructed by the Government Legal Department) for the Defendant
Hearing dates: 28 & 29 June 2022,
followed by written submissions dated 7 & 8 July 2022
____________________
Crown Copyright ©
Mrs Justice Lang :
Grounds of challenge
Ground 1
Ground 2
Ground 3
Ground 4
Ground 5
Facts
SPM
"47.9 It is the Appellant's evidence Samuel stabbed her with a knife in 2014 and she was admitted to hospital for two months. She claims to have provided medical evidence and says she is unable to provide anything else. At the hearing, the Appellant produced a photograph of the scar which she says she has been left with as a result of this injury. The medical evidence provided …. appears to relate to a gunshot injury in 2015 and therefore does not assist me in relation to the alleged incident in 2014. No evidence from a health care professional in the UK has been provided regarding the existence of any scar which the Appellant has or its likely cause."
Derwentside IRC
Brook House: DDAS visits: 4. Other legal visits: 112.
Colnbrook: DDAS visits: 0. Other legal visits: 80.
Derwentside: DDAS visits: 0. Other legal visits: 5 (or 6, according to one written answer).
Dungavel: DDAS visits: N/A. Other legal visits: 3.
Harmondsworth: DDAS visits: 0. Other legal visits: 145.
Tinsley House: DDS visits: 0. Other legal visits: 0.
Yarl's Wood: DDAS visits: 17. Other legal visits: 64.
The Claimants' evidence on provision of legal services at Derwentside
Legal aid provision in IRCs
"1. Lord Chancellor's functions
(1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part.
(2) In this Part "legal aid" means—
(a) civil legal services required to be made available under section 9 … (civil legal aid) …
……
(4) The Lord Chancellor may do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor's functions under this Part."
"27 Choice of provider of services etc.
(1) The Lord Chancellor's duty under section 1(1) does not include a duty to secure that, where services are made available to an individual under this Part, they are made available by the means selected by the individual.
(2) The Lord Chancellor may discharge that duty, in particular, by arranging for services to be provided by telephone or by other electronic means.
……."
"8. Civil legal services
(1) In this Part "legal services" means the following type of services –
(a) providing advice as to how the law applies in particular circumstances,
(b) providing advice and assistance in relation to legal proceedings,
……"
"9. General cases
(1) Civil legal services are to be available to an individual under this Part if—
(a) they are civil legal services described in Part 1 of Schedule 1, and
(b) the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination)."
"8.117 You may provide a maximum of 30 minutes advice to a Client at a Detained Duty Advice Surgery without reference to the Client's financial eligibility.
8.118 The purpose of the advice session is to ascertain the basic facts of the Matter and to make a decision as to whether the Matter requires further investigation or whether further action can be taken.
…..
8.120 On the conclusion of the Client's 30 minute advice session you must make a determination as to whether the Client qualifies for civil legal services … to ascertain whether you are able to continue to advise the Client under Controlled Work…
8.121 You must record the time spent with each Client at a Detained Duty Advice Surgery on the Contract Report Form specified by us.
8.122 You must ensure the client is given adequate information in a written format at the end of the Detained Duty Advice Surgery whether or not the matter requires further investigation. This information should sufficiently address the outcome of the Detained Duty Advice Surgery with details of the name of the Caseworker who has advised the client."
Ground 1
Submissions
Conclusions
"26. Outside contacts
(2) A detained person shall be entitled to establish and maintain, as far as are possible, such relations with persons and agencies outside the detention centre as he may wish, save to the extent that such relations prejudice interests of security or safety."
"30. Legal advisers and representatives
The legal adviser or representative of any detained person in any legal proceedings shall be afforded reasonable facilities for interviewing him in confidence, save that any such interview may be in the sight of an officer."
"(1) Persons may be detained under paragraph 16 above in such places as the Secretary of State may direct (when not detained in accordance with paragraph 16 on board a ship or aircraft)."
"The Lord Chancellor may do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor's functions under this Part."
"27 Choice of provider of services etc.
(1) The Lord Chancellor's duty under section 1(1) does not include a duty to secure that, where services are made available to an individual under this Part, they are made available by the means selected by the individual.
(2) The Lord Chancellor may discharge that duty, in particular, by arranging for services to be provided by telephone or by other electronic means.
……."
"78. Most of the cases so far mentioned were concerned with barriers to the bringing of proceedings. But impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible. More recent authorities make it clear that any hindrance or impediment by the executive requires clear authorisation by Parliament. Examples include Raymond v Honey [1983] 1 AC 1, where prison rules requiring a prison governor to delay forwarding a prisoner's application to the courts, until the matter complained of had been the subject of an internal investigation, were held to be ultra vires; and R v Secretary of State for the Home Department, Ex p Anderson [1984] QB 778, where rules which prevented a prisoner from obtaining legal advice in connection with proceedings that he wished to undertake, until he had raised his complaint internally, were also held to be ultra vires.
79. The court's approach in these cases was to ask itself whether the impediment or hindrance in question had been clearly authorised by primary legislation. In Raymond v Honey, for example, Lord Wilberforce stated at p 13 that the statutory power relied on (a power to make rules for the management of prisons) was "quite insufficient to authorise hindrance or interference with so basic a right" as the right to have unimpeded access to a court. Lord Bridge of Harwich added at p 14 that "a citizen's right to unimpeded access to the courts can only be taken away by express enactment."
80. Even where a statutory power authorises an intrusion upon the right of access to the courts, it is interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question. This principle was developed in a series of cases concerned with prisoners. The first was R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198, which concerned a prison rule under which letters between a prisoner and a solicitor could be read, and stopped if they were of inordinate length or otherwise objectionable. The rule did not apply where the letter related to proceedings already commenced, but the Court of Appeal accepted that it nevertheless created an impediment to the exercise of the right of access to justice in so far as it applied to prisoners who were seeking legal advice in connection with possible future proceedings. The question was whether the rule was authorised by a statutory power to make rules for the regulation of prisons. That depended on whether an objective need for such a rule, in the interests of the regulation of prisons, could be demonstrated. As Steyn LJ, giving the judgment of the court, stated at p 212:
"The question is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability."
The evidence established merely a need to check that the correspondence was bona fide legal correspondence. Steyn LJ concluded:
"By way of summary, we accept that [the statutory provision] by necessary implication authorises some screening of correspondence passing between a prisoner and a solicitor. The authorised intrusion must, however, be the minimum necessary to ensure that the correspondence is in truth bona fide legal correspondence." (p 217)
81. The decision in Leech was endorsed and approved by the House of Lords in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, which arose from a prohibition on visits to serving prisoners by journalists seeking to investigate whether the prisoners had, as they claimed, been wrongly convicted, except on terms which precluded the journalists from making professional use of the material obtained during such visits. The House considered whether the Home Secretary's evidence showed a pressing need for a measure which restricted prisoners' attempts to gain access to justice, and found none.
82. A similar approach was adopted in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, which concerned a policy that prisoners must be absent from their cells when legal correspondence kept there was examined. Lord Bingham of Cornhill, with whose speech the other members of the House agreed, summarised the effect of the earlier authorities concerning prisoners, including Raymond v Honey, Ex p Anderson, and Ex p Leech:
"Among the rights which, in part at least, survive [imprisonment] are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment." (pp 537-538)
After an examination of the evidence, Lord Bingham concluded that "the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners" (para 21). Since that degree of intrusion was not expressly authorised by the relevant statutory provision, it followed that the Secretary of State had no power to lay down the policy."
"87. The Lord Chancellor cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes. It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice. That will be so because section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals. That is indeed accepted by the Lord Chancellor.
…
93. … The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable."
"91. The importance of the rule of law, and the role of access to justice in maintaining the rule of law, was recently considered by Lord Reed JSC (with whom the rest of the Supreme Court agreed) in R (UNISON) v Lord Chancellor [2017] UKSC 51; [2017] 3 WLR 409 at [68]:
"At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade…".
Thus, the right to access to justice is an inevitable consequence of the rule of law: as such, it is a fundamental principle in any democratic society which more general rights of procedural fairness are to a large extent designed to support and protect (see, e.g., R (CPRE Kent) v Dover District Council [2017] UKSC 79: [2018] 1 WLR 108 at [54] per Lord Carnwath of Notting Hill JSC, and R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812; [2018] 4 WLR 123 at [83-[84] per Singh LJ).
92. The right of access to justice means, of course, not merely theoretical but effective access in the real world (UNISON at [85] and [93]): it has thus been said that "the accessibility of a remedy in practice is decisive when assessing its effectiveness" (MSS v Belgium and Greece (2011) 53 EHRR 2 (European Court of Human Rights ("ECtHR") Application No 30696/09) at [318], emphasis added). This means that a person must not only have the right to access the court in the direct sense, but also the right to access legal advice if, without such advice, access to justice would be compromised (R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 at [5] per Lord Bingham of Cornhill; and MSS at [319]). For these rights to be effective, as the common law requires them to be, an individual must be allowed sufficient time to take and act on legal advice.
93. So, where tribunal rules set a "timetable for the conduct of.. appeals [that was] so tight that it [was] inevitable that a significant number of appellants [would] be denied a fair opportunity to present their cases…", those rules were held to be unlawful (The Lord Chancellor v R (Detention Action) [2015] EWCA Civ 840; [2015] 1 WLR 5341, the quotation being from [38] per Lord Dyson MR).
94. Even closer to this case, in the 2010 Medical Justice case at [43], Silber J said that effective legal advice and assistance requires sufficient time to be given between service of notice of a decision by the Secretary of State which puts the individual at risk of removal (in that case, notice of removal directions) and removal itself:
"… to find and instruct a lawyer who:
(i) is ready to provide legal advice in the limited time available prior to removal, which might also entail ensuring that the provider of the advice would be paid;
(ii) is willing and able to provide legal advice under the seal of professional privilege in the limited time available prior to removal which might also entail being able to find and locate all relevant documents; and
(iii) (if appropriate) would after providing the relevant advice be ready, willing and able in the limited time available prior to removal to challenge the removal directions." (emphasis in the original)
On appeal, upholding Silber J, Sullivan LJ said (the 2010 Medical Justice case (CA) at [19]):
"I refer to 'effective' legal advice and assistance because the mere availability of legal advice and assistance is of no practical value if the time scale for removal is so short that it does not enable a lawyer to take instructions from the person who is to be removed and, if appropriate, to challenge the lawfulness of the removal directions before they take effect."
95. In that case, the challenge to the part of the Secretary of State's policy which allowed for removal less than 72 hours after notification of removal directions was a systemic challenge, i.e. it contended that the risk to the right of access to justice was inherent in the policy itself and it was not dependent upon the claimant showing that particular irregular migrants who fell within the scope of this part of the policy had in fact been denied access to a court. As Sullivan LJ put it (at [21]):
"On the assumption that legal advice would be available Silber J was concerned with the practicalities of obtaining that advice in sufficient time for it to be effective. Would there be a sufficient time between the service of the removal directions and the removal itself to enable a legal adviser to challenge the lawfulness of the removal directions? If the answer to that question was no, time would not be sufficient, then the… policy abrogates the right of access to the courts to challenge the lawfulness of the removal directions.""
"80. …… In UNISON this court held that there is a fundamental right under the common law of access to justice, meaning effective access to courts and tribunals to seek to vindicate legal rights, which means that the executive is under a legal obligation not to introduce legal impediments in the way of such access save on the basis of clear legal authority: see the discussion by Lord Reed in UNISON at paras 66-98. The decision was concerned with the introduction of an order imposing fees to bring claims in an employment tribunal, but the principles stated are of general application. The test applied was whether the making of the order created "a real risk that persons will effectively be prevented from having access to justice" (para 87; see also para 85, where R (Hillingdon Borough Council) v Lord Chancellor [2008] EWHC 2683; [2009] 1 FLR 39 is referred to as authority for such a test). As Lord Reed observed (para 91), it is sufficient if a real risk of prevention of access to justice is demonstrated. This means that, in order to test the lawfulness of a measure on this basis, it is legitimate to have regard to evidence regarding its likely impact and the court has to make an overall evaluative assessment whether this legal standard is met or not (and statistics might have a part to play in making such an assessment). In UNISON, this court held that the fees order was unlawful on this basis.
81. This is also, in effect, the question which the court asked itself in Director of Legal Aid Casework in relation to the application form, when it assessed whether the form created an unacceptable risk of unfairness in the form of preventing access to legal aid (and hence preventing access to the courts) in cases where there was an obligation to provide legal aid. With the benefit of the statement of the relevant principle in UNISON, no doubt the issue would now be formulated with more precision.
82. Similar issues arose in R (Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 1710, in relation to measures (which happened to be set out in a policy document) limiting the time available to an immigrant to obtain legal advice and assistance to challenge removal directions, and in R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244; [2017] 4 WLR 92, in relation to the lawfulness of removal of legal aid from certain categories of legal claims affecting prisoners. In both cases, as in Director of Legal Aid Casework, the court referred to Refugee Legal Centre and framed the question for itself in terms of whether the system was inherently unfair; but in both cases the substance of the analysis was whether there had been an unlawful infringement of the constitutional right of access to a court or tribunal. In our view, the formulation of the test in Refugee Legal Centre is not a helpful way of approaching that issue. In future, the framework of analysis in UNISON should be applied instead.
83. This is indeed what occurred in R (FB (Afghanistan)) v Secretary of State for the Home Department [2020] EWCA Civ 1338; [2021] 2 WLR 839. The case concerned a challenge to the lawfulness of another scheme to limit the time for immigrants to challenge decisions to remove them before they were implemented. The Court of Appeal upheld the challenge on the ground that the scheme created an excessive impediment in the way of immigrants gaining access to a court to challenge the lawfulness of such decisions in their cases, ie by reference to the principle in UNISON: see, in particular, paras 142 (Hickinbottom LJ), 170 (Coulson LJ) and 185 and 196 (Lord Burnett of Maldon CJ). The more general approach in Refugee Legal Centre, Medical Justice, Tabbakh and Detention Action was referred to, but its effect in those cases was explained in terms of the access to justice principle examined in UNISON (see, in particular, paras 120-126, per Hickinbottom LJ, and para 177, per Lord Burnett CJ). In our view, on a proper understanding of the legal principles discussed above, the wider formulation of a test of systemic inherent unfairness in relation to a legal scheme which has been taken to be laid down in the line of cases stemming from Refugee Legal Centre will in most, if not all, circumstances dissolve into the Gillick principle and the UNISON principle, each with its own precise focus."
"[Counsel for the Lord Chancellor] submitted that it was for the Lord Chancellor's discretion to decide what litigation should be supported by tax payers' money and what should not. As regards the expenses of legal representation, I am sure that is right. Payment out of legal aid of lawyer's fees to conduct litigation is a subsidy by the state which is in general well within the power of the executive, subject to the relevant main legislation, to regulate. But the impost of court fees, is, to my mind, subject to wholly different considerations. They are the cost of going to the court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers."
"460. ……There is no fundamental right to choose a legal representative whom the potential client cannot afford to pay, because there is no duty on the lawyer to give his/her services free of charge or at a fee at a level the potential client can afford. Still less is there any general duty on the tax payer to supplement the means of the potential client so that the potential client is able to meet the fees of the legal representative that he/she would wish to choose.
……
468. In our judgment, in so far as the applicants' case on the illegality of the new regime is based on the infringement of a fundamental common law right of those eligible for legal aid, it fails because there is no common law right to choose one's legal representative of the kind which the applicant would have to establish in order for this part of their case to succeed."
"(f) Access to legal advice and representation:
42. Bearing in mind what fairness is likely to require where the issue is factually or legally complex or the consequences for the individual are serious, the common law rules of fairness will generally entitle a person to have access to legal advice and to be able to communicate confidentially with a legal adviser as part of the fundamental right of access to justice and to the courts: see R v Secretary of State for the Home Department, ex p Anderson [1984] QB 778, at 790; R (Daly) v Secretary of State for Home Department [2001] UKHL 26, [2001] 2 AC 532 at [5] and [30] (Lord Bingham and Lord Cooke of Thorndon); and R (Medical Justice) v Ministry of Justice [2010] EWHC 1925 (Admin) at [43] – [45] (Silber J). The importance of legal advice was referred to in R (Gudanaviciene and others) v Director of Legal Aid Casework and Lord Chancellor [2014] EWCA Civ 1622, [2015] 1 WLR 2247 which we consider below. In its discussion of the potential of an inquisitorial approach by the decision-making body to ensure that a person has effective access to justice, the court, in a judgment handed down by Lord Dyson, stated at [185], that "in some circumstances, legal advice to the litigant in person may be more important than legal representation at the hearing for ensuring effective access to justice".
…
(g) Access to legal aid:
44. The decision in R (Gudanaviciene and others) v Director of Legal Aid Casework and Lord Chancellor shows that the factors to which we have referred are also in play in the determination of whether, and, if so when, fairness requires the provision of legal aid. Before considering Gudanaviciene's case, however, we refer to the position under the ECHR.
45. In Airey v Ireland (1979-80) 2 EHRR 305, the ECtHR, dealing with proceedings for judicial separation in the Irish High Court, stated at [24] and [26] that where a person is unable to "present her case properly and satisfactorily" and "effectively conduct" it and cannot afford to pay for a legal representative, the state is under an obligation to provide legal aid for legal representation. The ECtHR emphasised that this is not so in all cases and that "in certain eventualities" the possibility of appearing without a lawyer's assistance will meet the requirements of Article 6 and secure adequate access, even to the High Court. It referred to similar factors to those considered in the decisions of appellate courts in this jurisdiction, such as the complexity of the law, the procedure, or the case, and the ability of the individual to test the evidence, and also to the fact that the requirements of Article 6 can be met by other means, for example the simplification of procedure. This chimes with the statement of Lord Reed in Osborn's case (at [55]) that one of the ways in which the detailed provisions of domestic law guarantee the right to a fair trial under Article 6 ECHR is "the law relating to legal aid", but, as in Airey's case, recognising that this can and is also done in other ways, including the law of evidence and procedure and the principles of administrative law.
46. The ECtHR recognised that the availability and scope of legal aid was a question of social and economic rights and depended in part on the financial situation in the State in question. It considered that this was not a decisive factor against the provision of legal aid because of the need "to safeguard the individual in a real and practical way as regards those areas" with which the ECHR deals. Other Strasbourg cases have had some regard to the fact that limited resources mean that a machinery is needed to select cases that are to be funded: see the authorities referred to by Laws LJ in Director of Legal Aid Casework v IS [2016] EWCA Civ 464, [2016] 1 WLR 4733 at [55] and [61] – [64]. Those authorities, however, also refer to the need for the system of selection to be "reasoned and proportionate" and thus to provide protection from arbitrariness: see Eckardt v Germany (2007) 45 EHRR SE7 cited by Laws LJ at [64]."
(1) The Defendant's decision to open a female-only IRC at Derwentside in place of Yarl's Wood IRC and the proposals for legal aid services in 2021
(2) The interim contingency arrangements from January to June 2022
(3) The permanent arrangements from July 2022 onwards
Grounds 2 and 3
Submissions
EA 2010
"(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion of practice is discriminatory in relation to a relevant protected characteristic of B's if-
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
"A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation."
"(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services for persons of each sex if—
(a) a joint service for persons of both sexes would be less effective, and
(b) the limited provision is a proportionate means of achieving a legitimate aim.
(2) A person does not contravene section 29, so far as relating to sex discrimination, by providing separate services differently for persons of each sex if—
(a) a joint service for persons of both sexes would be less effective,
(b) the extent to which the service is required by one sex makes it not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex, and
(c) the limited provision is a proportionate means of achieving a legitimate aim."
"(1) A public authority must, in the exercise of its functions, have due regard to the need to--
(a) Eliminate discrimination, harassment victimisation and any other conduct that is prohibited by or under this Act;
(b) Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
…
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low."
The relevant protected characteristics include age, disability, race, and sex.
EIA
"1. The impact of opening a new immigration removal centre, Derwentside IRC.
An effective immigration detention system, as part of a fair and humane approach to immigration enforcement, is a Government requirement and an expectation of the public. To achieve this, we must provide a detention estate with enough resilience to ensure that it can absorb fluctuations in demand, such as a change in in-flow of timeserved FNOs and short-term operational pressures, such as contagious illness or disturbance. This has been especially prevalent during the Covid-19 pandemic.
The Home Office currently operates six immigration removal centres (IRCs) throughout the UK (five in England and one in Scotland) and two residential short term holding facilities (RSTHFs) (one in Northern Ireland and one in England), following the closure of Morton Hall IRC in July 2021. Yarl's Wood IRC has historically been run as a dedicated female only facility.
The return of Morton Hall IRC to MoJ removed almost 400 male detention beds (20% of the total male capacity, in an estate already 40% smaller than in 2015) and leaves no male IRCs between Glasgow and Heathrow/Gatwick. This loss of capacity comes at a time where flexibility and resilience in the detention estate are most needed. A response to the loss and an immediate restructure of the existing estate is necessary. Immigration Enforcement (IE) must find alternatives to mitigate the loss of male capacity at Morton Hall. This must happen concurrent to the closure of the IRC, leaving no gap in service. To absorb the loss in male beds at Morton Hall we will:
Re-role Yarl's Wood as, primarily, a male IRC. This change provides 372 new male beds in an IRC that has been historically underutilised as an all-female site (between 25% and 30% occupancy rates pre-covid). This change provides a starting point for the existing estate to be used to its full potential.
Procure a small specialised site (84 bed) to detain women – Derwentside IRC. This site will replicate the conditions that currently exist at Yarl's Wood, focusing on the healthcare, welfare and activities services provided. The detention facility for women will now be in County Durham. The Home Office is committed to designing and operating the new IRC in a way that reflects and responds to the characteristics and needs of the population who will be detained there.
IE are seeking to ensure that the immigration detention estate has the right amount of capacity, is fit for purpose and flexible, and serves the whole of the UK whilst minimising the cost to the public purse where possible and appropriate. Our aim is to implement the change in a way which promotes and enhances equality of opportunity, respects diversity and takes into account the needs of people with protected characteristics. Where there may be a negative impact, we explain how this is justifiable and proportionate in accordance with our obligations under the Equality Act 2010 and explain the mitigating action being taken.
2. Summary of the evidence considered in demonstrating due regard to the Public Sector Equality Duty.
Public sector equality duty and detention as part of immigration control
The need for significant long-term capacity with a wider national footprint reflects IE's strategy of modernising and rationalising the immigration removal estate. Five centres have been closed in recent years creating a reduction in operational detention capacity. For financial reasons, the number of Foreign National Offender (FNO) beds used for immigration purposes in the prison estate has substantially decreased. Further reduction would present a risk to future capability to remove those with no legal basis to remain in the UK. This emphasises the importance of repurposing Yarl's Wood to cover the loss of beds at Morton Hall and the procurement of a new site for women.
…..
3A. Consideration of limb 1 of the duty: Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act
Sex
Home Office policy does not exclude individuals from detention by virtue of their gender. Men and women are equally likely to be detained provided that one of the statutory powers of detention apply and their detention would be in line with published Home Office detention policy. However, victims of gender-based violence, who are more likely to be women, fall explicitly within the adults at risk policy: they will be detained only where immigration control considerations outweigh vulnerability considerations.
Direct discrimination
By opening a woman only facility at this location, we have considered the risk that the policy constitutes direct discrimination on the grounds of sex. The gender specific facilities available at Derwentside IRC will not be available to men who are being detained under the same detention powers.
Paragraph 26 of Schedule 3 to the Equality Act 2010 contains an exemption from the prohibition of direct discrimination on the basis of sex:
[text of paragraph 26]
We consider that failing to segregate the sexes would make the detention arrangements considerably less effective for both men and women.
The detention estate has long operated sex-segregated IRCs. This is due to the significant evidence (and widely accepted principle) that female residents have needs that are different to and often more complex than men and so a gender specific approach is required to manage detained environments in a way that meets the needs of its population, particularly around issues of safeguarding and vulnerability.
Security and freedom of movement within IRCs
Different IRCs operate with different levels of security and openness within the centres according to the layouts of centres and the level of risk that the average population within each centre tends to pose.
Security statistics demonstrate that between 2015 and present there were no women who have escaped or attempted to escape from an IRC in comparison to 20 attempts by the men. There are also less high harm female FNOs in prisons and subsequently less FNOs coming into IRCs than men. Thus, the risk posed from women in detention is diminished, and so all women centres have historically operated a more open and less regimented environment.
By opening a women only centre, we will be providing a facility designed and operated for women who historically require lower levels of security. One of the considerations for choosing the Derwentside site was because it had been a Secure Training Centre, rather than a prison or IRC, meaning it could be easily developed to provide an open and relaxed regime through which the needs of detained women could be met. Levels of security will be commensurate to the lower level of risk posed by women in terms of both security (such as escape attempts) and violence, allowing greater freedom of movement within the centre and shorter periods during which residents will be required to remain in their rooms. Making this a suitable site for the detention of women has been and remains a key factor throughout the planning and delivery of the renovations.
The workforce requirements will reflect the lessons learned from detaining women at Yarl's Wood IRC and will include a ratio of female to male custodial staff that is appropriate for the specific needs of women in detention. The training requirements for staff will be equivalent to those for Yarl's Wood IRC. All staff working with women must receive appropriate gender specific training (such as the protocol for entry to bedrooms), in addition to any generic training they receive when they undergo initial training. Appropriate refresher training should be undertaken, to include equality and diversity, human trafficking and modern slavery.
A full range of recreational and healthcare facilities tailored to women will mirror those currently operated at Yarl's Wood and will include a cultural kitchen, hair and beauty salon, the ability to purchase items from a shop, access to a computer suite, education, well-being services, welfare and access to legal services. Multi faith/prayer rooms will also be available to residents.
Visits will be facilitated in line with those in other centres, with visitors to the nearest main train station transported to the centre to support and encourage visiting arrangements.
We therefore consider that failing to segregate by sex would render this IRC less effective in managing the detention of women in a manner commensurate with the risk they pose, and in accordance with the purpose of the centres to operate 'a relaxed regime with as much freedom of movement and association as possible consistent with maintaining a safe and secure environment' (Detention Centre Rules 2001).
We are satisfied that this approach is a proportionate means of achieving the legitimate aim of ensuring that the detention estate is operated as a secure environment so far as is necessary to ensure the safety and security of detained persons and staff, tailored to the circumstances of each centre with no more restrictions than are necessary.
Location
The new IRC will be located in the North East of England, and is not co-located with an airport or within a town or city. The majority of centres are located in the South/South East of England. We have considered whether the fact that the new IRC in the North East will house women, whereas all male centres are more heavily concentrated in the South, will result in direct discrimination on the basis of gender. This is because in practice there may be potential difficulties with receiving visits from family and friends that would disproportionately impact detained women, the majority of whom will likely be detained in the new IRC (as discussed above, there will still be capacity to detain women at other sites in the UK).
There is no policy that individuals should be detained in a location as close to family as possible. The DSO 3/2016 "Detainee Placement" sets out that detained persons can request transfers to other IRCs on personal grounds and the Home Office will consider such requests on the basis of available space elsewhere in the detention estate and the reasons provided.
Other sites were considered, including Campsfield House, but were discounted due to the current standard or use of the accommodation. Derwentside was deemed the most appropriate option because it was already government-owned and of the requisite standard, which made it the best option given the short timescales, cost-effectiveness and the standard of accommodation required. By maintaining some detention space for women at Yarl's Wood, Dungavel and Colnbrook and by expanding the geographical footprint of the detention estate we will, however, be better placed to take account of individual circumstances in deciding the most appropriate detention facility on a case by case basis.
We will provide modern communication links for the women at Derwentside with uninhibited access to Internet and Skype during core hours to ensure they can maintain the same level of communications, including with family, as other sites. In addition, all visitors to the nearest main train station will be transported to the centre to support and encourage visiting arrangements.
We also bear in mind that, as mentioned above, detention periods are generally lower for women than for men, which has some mitigating effect on the impact of detention.
It is therefore considered that the proposals are a proportionate means of achieving a legitimate aim: seeking to ensure that the immigration detention estate has the right amount of capacity, is fit for purpose and flexible, and serves the whole of the UK whilst minimising the cost to the public purse where possible.
Staffing and facilities
The IRC will cater to the specific needs of women in detention and staffing will include a ratio of female to male custodial staff that is appropriate for the specifics needs of women in detention. For example, (DSO 09/2012 Searching Policy, paragraph 31) below instructs that where possible the two DCOs carrying out a room search should be female.
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In determining the types of facilities to be provided, we will take account of learning from Yarl's Wood IRC and relevant recommendations from external inspection and scrutiny bodies. We will provide facilities tailored to women, based on those currently available at Yarl's Wood, including a cultural kitchen, appropriately stocked shop, computer suite, dedicated hair salon and nail clinic, and a cafeteria for the women to engage with visitors from the local community including Hibiscus NGO, a charity that works primarily with women.
We have recognised that women in detention have frequently been victims of abuse, sexual trafficking, trauma and are therefore more likely to have severe complex needs in comparison to the male cohort. The NHS provider will be offering gender informed trauma-based practice therapy for women and will be a conducting continual needs analysis for care of the women. We will welcome further engagement with NGOs both nationally and locally in the coming months.
We consider that there is a strong justification for providing these tailored facilities. Equivalent facilities are available at all male IRCs to account for the particular needs of male populations (eg barbers and gym facilities).
Indirect discrimination
We have considered whether this policy position could result in indirect discrimination as the policy of segregating by sex in IRCs means that one gender is always likely to be disproportionately impacted by the characteristics of a particular regime or location of a given centre. If this policy were to result in indirect discrimination, it is considered that the proposals are a proportionate means of achieving a legitimate aim for the same reasons as set out above: seeking to ensure that the immigration detention estate is tailored to the needs of women and men as appropriate, has the right amount of capacity, is fit for purpose and flexible, and serves the whole of the UK whilst minimising the cost to the public purse where possible.
Race
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Direct discrimination
We do not consider that this policy will result in direct discrimination in respect of this protected characteristic"
Indirect discrimination
For individuals who do not have a fluent command of English and are seeking advice regarding their detention and/or removal from UK, the potential loss of access to organisations offering advocacy services who are working with women detained at other IRCs could place such detained persons at a disadvantage, potentially resulting in indirect discrimination. For some people detained it may be easier to receive such advice face-face from a speaker of their first language, rather than over the telephone or internet. The Legal Aid Agency (LAA) will set up a Detained Duty Advice scheme on the same basis as in other IRCs, and the LAA is tendering for a service comparable with that currently available at Yarl's Wood. Residents and legal providers will have access to purpose designed interview suites and high speed wifi.
Where individuals in detention consider they are experiencing discrimination, or other negative treatment as a result of their race, nationality or ethnic origins they will continue to be able to request transfers to another IRC in the estate, in line with arrangements set out in DSO 3/2016 "Detainee Placement". By expanding the detention estate footprint (and by also retaining some detention space for women at Dungavel, Yarl's Wood and Colnbrook), we are providing more flexibility and scope to meet such requests.
We have also recently reviewed the provision of interpretation services across the IRC estate, looking at both equipment and service quality. Following that review we are introducing new equipment, pre-booking interpreters in certain circumstances and ensuring, in particular, improvements to interpretation during induction. In addition, work is underway to develop a DSO on interpretation services.
In light of these mitigations we consider that, in the event that there were to be any disproportionate impact on persons of a particular race, the decision to open this IRC in the North East is justified as a proportionate means of achieving the legitimate aim of developing the detention estate in an appropriate manner across the UK, as set out above."
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Disability
Home Office detention policy does not operate with absolute exclusions in relation to specific groups, such as those with either mental or physical disabilities or impairments. Under this policy an individual considered to be "at risk" will be detained only when the immigration control factors outweigh the evidence of vulnerability presented in their case. Having a serious mental or physical disability, including suffering from post-traumatic stress disorder, are specified as indicators of risk under the policy.
The Adults at Risk (AAR) policy sets out considerations for individuals with a "serious physical disability" whereby it states "where an individual may be suffering from a serious disability it may inhibit their ability to cope within a detention environment and should be factored into any consideration of detention and, indeed, into consideration of their general management through the immigration process". Mental illness is covered in the AAR policy and states that such conditions may inhibit an individual's ability to cope within a detention environment and should be factored into any consideration of detention and, into consideration of their general management through the immigration process.
Detention Services Order 4/2020 "Mental vulnerability and immigration detention- non clinical guidance" provides guidance on provision of support to those with mental vulnerabilities in detention.
Direct discrimination
A person with disabilities may be held at any IRC that can accommodate their needs. There is disabled access across the majority of the estate for those who are able to move independently and are capable of participating in the regime with minor assistance from others. Similar provision will be put in place at the new IRC and we do not consider that opening a women only IRC will pose direct discrimination issues in respect of disability.
Indirect discrimination
Following publication of DSO 08/2016 'Management of adults at risk in the detention estate' a consistent approach is taken by all Home Office, supplier and healthcare staff working with those in detention to identify and record changes to the physical or mental health of a person in detention, or a change in the nature/severity of any previously identified vulnerability, alongside the current IS91RA risk assessment process. Any vulnerability that may impact on the safety and wellbeing of an individual must be addressed and reasonable adjustments be put in place, which must be documented in the care plan.
The Detention Engagement Team in the IRC aim to conduct an induction for all people entering detention within 48 hours of arrival as well as regularly engaging with each individual throughout their detention. Their one-to-one interactions support the wellbeing of people in detention, particularly in identifying any signs of vulnerability and / or signs of deterioration in physical or mental health.
The new IRC will be able to accommodate people with disabilities in line with the rest of the estate with the majority of the rooms on the ground floor with en-suite facilities."
Ground 3
Ground 2
Direct discrimination
Indirect discrimination
Ground 4
Submissions
Conclusions
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"As is now well known, this raises four questions, although these are not rigidly compartmentalised:
(1) Do the circumstances fall within the ambit of one or more of the Convention rights?
(2) Has there been a difference of treatment between two persons who are in an analogous situation?
(3) Is that difference of treatment on the ground of one of the characteristics listed or other status?
(4) Is there an objective justification for that difference in treatment?"
"11. The Claimant's claim is that the lack of an equivalent to the DDAS for immigration detainees like him who are held in prison is in breach of his rights under ECHR article 14 not to suffer discrimination in the enjoyment of Convention rights on grounds of "other status". The Claimant's Statement of Facts and Grounds relied on ECHR articles 2 and 3 (on the basis that access to legal advice affected the ability to advance claims for protection as a refugee or that a person should not be removed from the United Kingdom by reason of a serious risk of treatment contrary to those Convention rights); ECHR articles 5 and 6 (because of the impact on his ability to challenge the legality of his detention, or apply for bail); and ECHR article 8 (because of the adverse impact on his ability to apply for leave to remain in the United Kingdom by reason of interference with rights guaranteed under that article). In his Detailed Grounds of Defence, the Lord Chancellor accepted that the Claimant's complaint about the availability of access to publicly funded legal services falls within the ambit of both EHCR article 5 and article 8. In her Skeleton Argument for this hearing, Miss Dobson conceded that the complaint also fell within the ambit of ECHR articles 2 and 3. Neither party made any detailed submissions on any of these matters. The wide-ranging basis on which the claim is put and defended covers any and all benefit that could accrue from the DDAS (and conversely any disadvantage arising from lack of access to an equivalent provision)."
Ground 5
i) Pursuant to Ground 1, her detention was ultra vires because of the lack of in-person legal advice, and effective access to justice.
ii) Alternatively, on the facts of SPM's case, the lack of arrangements for in-person legal advice materially inhibited her ability to give instructions and obtain legal advice, thus prolonging her detention unnecessarily.
iii) She was unlawfully detained as a victim of trafficking at risk whom the Defendant failed to identify and refer into the National Referral Mechanism.
Final conclusions