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R (on the application of Idira) v Secretary of State for the Home Department [2014] EWHC 4299

DATE: 19 Dec 2014

The High Court today handed down judgment in R (on the application of Idira) v Secretary of State for the Home Department [2014] EWHC 4299. Mr Idira challenged the legality of the Secretary of State’s policy of routinely holding post-sentence immigration detainees in prisons until all prison beds available for her use were full and, in particular, the decision of the Home Office to significantly increase the number of immigration detainees held in prison between November 2012 and Spring 2014.

The effect of the policy was to hold immigration detainees in prisons without individual risk assessment. Mr Justice Jay found the approach of the Secretary of State amounted to a “systemic” error: [56] & [84]. He found that the policy requiring detention in prisons was a blanket policy which permitted no exceptions: [41]. He found that the Secretary of State’s reason for changing the policy was “nothing to do with assessment of risk or the interests of immigration detainees, but everything to do with administrative convenience”: [26]. He declined to make a declaration that the policy was unlawful as the Claimant had been released and the numbers of detainees held in prison had been reduced. The justice of the matter was met by the Claimant knowing the terms of his judgment: [50]. 

Dealing with the position under Article 5 ECHR, the judge said that holding immigration detainees in prisons required: “sound and proper justification within the context of Article 5(1)(f), and the policy matrix which the Defendant has devised and implemented. A policy which either systematically or invariably...has a consequence of holding those in the Claimant’s position in prison, rather than in an IRC, cannot be properly justified. Moreover, the implementation of such a policy severs the requisite link which must exist in cases such as these to justify detention under Article 5…”:[75]. 

The judge concluded that if the matter were free from authority he would have held that the “Defendant’s incarceration of the Claimant [in prison rather than an IRC].... was in breach of his rights under Article 5(1)(f) of the ECHR; and a sufficiently serious breach to sound in damages.” However, the matter was not free from authority. With “considerable reluctance”, he considered himself bound by the Court of Appeal’s decision in Krasniqi v Secretary of State for the Home Department [2011] EWCA Civ 1549 to dismiss the claim. Given the conclusions he would have reached if not so bound, he granted permission to appeal to the Court of Appeal in order that the Article 5 issues might be further considered.

The judgment is available here.

Graham Denholm appeared for Mr Idira, instructed by Jane Ryan of Bhatt Murphy Solicitors.