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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MR (Pakistan) & Anor v Secretary of State for Justice & Orse  EWCA Civ 541 (14 April 2021)
Cite as:  WLR(D) 197,  EWCA Civ 541,  4 WLR 79
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE SUPPERSTONE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWIS
LADY JUSTICE ELISABETH LAING
| MR (PAKISTAN)
|- and -
|(1) SECRETARY OF STATE FOR JUSTICE
(2) SECRETARY OF STATE FOR THE HOME DEPARTMENT
(3) NATIONAL PROBATION SERVICE
Robin Tam QC and Julie Anderson (instructed by GLD) for the Respondents
Hearing dates : 9 and 10 March 2021
Crown Copyright ©
Lord Justice Dingemans:
The issues on the appeal
Immigration detention and false imprisonment
Immigration detention of the "particularly vulnerable"
Rules 34 and 35 of the Detention Centre Rules and Rule 21 of the Prison Rules
Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner ) within 24 hours of his admission to the detention centre.
(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay
(1) A registered medical practitioner working within the prison shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations.
Other relevant policies
Some reports on the absence of Rule 35 reports for those held in immigration detention at HMP's
Evidence from the SSHD and SSJ about the system governing immigration detainees in HMP's
Evidence adduced on behalf of MR and AO showing that there was systemic unfairness or irrationality in the cases of MR and AO
Procedural issues - fresh evidence
Procedural issues the Respondents' Notice
The relevant factual background for MR
The relevant factual background for AO
The judgment below
No systemic unfairness issue one
". (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is suficient flexibility in the system to avoid unfairness); and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts."
Irrational not to obtain medical concerns about past torture of MR and AO issue two
No unlawful detention issue three
No unlawful discrimination under article 14 of the ECHR issue four
No indirect discrimination issue five
No breach of the public sector equality duty issue six
Lord Justice Lewis:
Lady Justice Elisabeth Laing