Perhaps the first significant issue arising out of the COVID-19 pandemic to come before the Administrative Court has been the question of the continued legality of immigration detention in the face of the risks and practical difficulties arising from the crisis. The pandemic raises two stark issues affecting the legality of immigration detention; on the one hand, that detainees may face an increased risk of infection by reason of the “congregate” setting of detention centres, and on the other that removals in the short term will be impossible and that the prospects of removal are at best uncertain even in the medium term.
The first such claim was brought by the NGO Detention Action, seeking wide-ranging generic interim relief in relation to all current detainees. The application for interim relief (discussed in more detail below) did not succeed, and the Home Office has sought to rely upon certain of the court’s remarks to resist claims by individuals.
The authors of this blog post act in a number of detention claims post-dating the Detention Action decision (some issued, some about to be issued at time of writing). Experience of these subsequent cases suggests that the Home Office’s reliance on the Detention Action judgment is misplaced or at any rate overstated. Of those in which the Court has considered applications for urgency and/or interim relief, we have seen a range of responses. In Mohammed v SSHD, linked here with the judge’s permission), in which Alex Goodman acts, interim relief was granted at a contested hearing. In Zalys v SSHD in which Tim Buley QC acts (reported on Westlaw at  4 WLUK 86) interim relief was refused but permission granted and a very prompt final hearing ordered. In other cases in which Graham Denholm acts, directions have been given for a prompt response by the Secretary of State to a Claimant’s letter before claim before the Court would consider any further order, and a direction for an Acknowledgment of Service within 14 days, to be followed by a very quick decision on permission and further directions if necessary.
The remainder of this blog post considers the Detention Action ruling and the lessons to be learned from the court’s approach to subsequent cases.
In its claim brought on 18 March 2020 the Detention Action (together with an individual detainee, Mr Ravin) challenged the approach of the Secretary of State to maintaining immigration detention in the face of the pandemic, as well as Mr Ravin’s continued detention. The claim alleged three wide-reaching failures by the Secretary of State: a failure to enquire into each detained case to assess whether, in light of the change in circumstances occasioned by the pandemic, continued detention could be justified; a breach of the duty to maintain a safe system of detention at common law and under Articles 2 and 3 ECHR; and a breach of the protection duty under Articles 2 and 3 ECHR as regards detainees with pre-existing health conditions impacting upon the risk they would face in the event they contracted COVID-19 (“relevant comorbidities”). Reliance was placed on expert evidence from Professor Richard Coker, Emeritus Professor of Public Health at The London School of Hygiene and Tropical Medicine, on the nature of the COVID-19 pandemic and its potential impact in immigration detention centres.
The claim as issued sought wide-ranging interim relief including release of detainees with relevant comorbidities in the absence of overriding public protection concerns and a review of the detention of all other detainees within 48 hours. The application for interim relief was heard by the Divisional Court on 26 March 2020. As yet, there is no formal transcript, but a note of the judgment agreed between counsel has been circulated amongst practitioners.
By the time of the hearing, matters had moved on significantly. In its judgment, the Court summarised the steps taken by the Secretary of State to respond to the pandemic:
- First, guidance on hygiene had been issued to detainees, cleaning materials were to be provided, and individual IRCs were to devise plans for isolating individuals at increased risk
- Second, guidance had been given with a view to minimising numbers in detention. Individuals from countries to which removal was not possible were not to be detained unless considered to pose a high risk of public harm
- Third, the Adults at Risk guidance was to be applied to anyone identified as being at heightened risk from COVID-19
- Fourth, for those at heightened risk who were not released steps were being taken to reduce contact with others
- Fifth, the detention of those not in high risk groups was to be reviewed by reference to whether the proposed country of return was accepting removals, applying the Hardial Singh principles, and
- Sixth, guidance had been issued regarding symptomatic individuals in the IRC estate, providing for isolation for seven days and, if necessary, hospitalisation.
The Secretary of State’s evidence was that the detention of all individuals identified as being in increased risk groups was expected to be completed by later on the day of the hearing. It was also noted that, as at the date of the hearing, the number of people in detention had reduced from 1,200 to 736.
In light of those steps, and an indication that Mr Ravin was to be released, the focus of the interim relief application changed, with the claimants seeking, in particular, the release of persons from all countries not accepting return unless they posed a high risk of harm, and the urgent provision of release accommodation.
The Court refused interim relief. In its judgment, it made the following points:
- Regarding the Hardial Singh arguments, even if removal was impossible the Secretary of State was entitled to a period, even if short, to review detention. A process was in place and priorities had been identified. The approach was not arguably unlawful and, even it had been, the balance of convenience did not favour granting an interim order. There was no prospect of a final order being granted in the terms sought.
- Regarding the arguments under Articles 2 and 3 ECHR the Court noted that, in his third report, Professor Coker had accepted that the guidance issued by the Secretary of State would improve chances of reducing the impact of COVID-19, albeit concerns remained. In the Court’s view, the guidance put in place by the Secretary of State was likely to work effectively. The particular problems presented by congregate settings did not fail to meet the standard required by Articles 2 and 3.
Two points can be made at this stage. First, in relation to Hardial Singh, the court did not say anything about what the outcome of the promised reviews should be. Its conclusion was essentially confined to process, namely that the Secretary of State must be given time to review detention before she can be said to have breached her duties. That says nothing about whether, once the necessary time has been given, detainees should or should not be released. So the ruling has little if any implications for how Hardial Singh cases should be decided on their individual facts. Second, notwithstanding the rejection of the ECHR arguments, the court said that:
… we accept that the congregate setting places at higher risk.
In addition, the Court stated that in the current “exceptional and severe” circumstances, in which decisions were being taken daily and hourly, the Court would always stand ready to make decisions on urgent cases, but that the requirement to bring cases sensibly and proportionally must be adhered to, and that parties must cooperate before and when bringing cases before the Court.
In light of the Detention Action judgment and our experience of seeking interim relief and expedited substantive hearings in subsequent cases, we would suggest that the following observations may be of assistance when evaluating the cases of clients who remain in detention:
- First, whilst generic arguments mirroring those advanced in the Detention Action challenge are unlikely to find favour, the Court is alive to the gravity of the risks and the potential urgency of challenges to detention in the present context, but also to the significant operational pressures facing the Home Office and to the fast moving nature of events. Meritorious claims which are properly particularised are likely to be recognised as urgent, albeit the timetables imposed by the court are likely to make allowance for the pressures on the Home Office and GLD as well.
- Second, whilst the Divisional Court in Detention Action was clear that the Secretary of State should have time to complete the process of review upon which she had embarked, well over two weeks has now passed, and the force of this point as a basis for allowing additional time has significantly diminished. At least as regards detainees at heightened risk from Covid-19, it seems to us that this point now has no remaining force either in relation to expedition or substance, given that reviews in those cases were expected to be completed the same day.
We understand that the Legal Aid Agency has raised this issue as a possible basis for refusing funding, and may have actually refused in some cases. But in our experience the Legal Aid Agency is willing to grant funding provided that this issue is properly addressed in the funding application.
- Third, the observations in Detention Action about the need for litigants to act proportionately in bringing claims has not been understood, at least by the majority of Administrative Court judges, as meaning that meritorious cases challenging detention in current circumstances should not be pursued on an expedited timetable.
- Fourth, notwithstanding the Court’s rejection of the blanket risk arguments in the Detention Action challenge, the risks to health flowing from the COVID-19 pandemic in the congregate setting of an Immigration Removal Centre (or prison) will be relevant to an assessment of whether removal within a reasonable period remains possible. The weight that attaches to this will depend on the particular circumstances of the case, both in terms of the health profile of the particular claimant (e.g. are there relevant comorbidities or are they of advanced age?) and in terms of evidence of what protective measures and/or treatment are in place or available in the place of detention.
- Fifth, the impact that the pandemic is having on Home Office caseworking and/or the possibility of removals taking place will self-evidently bear on the potential timescale for removal and upon the confidence with which any particular timescale can be predicted. In many cases this uncertainty and delay may mean a breach of the third Hardial Singh principle can readily be demonstrated. Notwithstanding variations in the practices of countries of return, only some of which have formally closed their borders or ports of entry, it is realistic to argue that present Home Office arrangements, and the lack of commercial flights, makes return unrealistic in most cases for the time being, with considerable uncertainty even in the medium term. In practice, to justify detention the Secretary of State is likely to have to demonstrate a high risk of harm, for example from reoffending, and the need for this will be further heightened in cases where an individual is at higher risk from Covid-19 or where for example the AAR policy is engaged for other reasons.
- Sixth, factors ordinarily relevant to the assessment of the legality of detention do not lose their relevance in the pandemic. Lengthy detention to date, outstanding representations, delays in travel documents being granted, etc, remain relevant and potentially critical. It is striking, for example, that the impact of the pandemic played no real part in Fordham J’s decision to order release in the Mohammed.
- Seventh, given the general acceptance that those who do not present a high risk should be released, experience suggests that a critical point of contention will be around the assessment of risk of harm and reoffending. The Secretary of State’s tendency to equate any past offending with a high risk of reoffending and public harm, regardless of how long ago and with no consideration of the particular circumstances, should be challenged where appropriate (see per Elizabeth Laing QC in R (BA) v SSHD  EWHC 2748 (Admin), at . The assessment of such risk is for the court and if the Secretary of State’s assessment is not based on evidence then the court may be willing to take a very different view of such risks.
- Finally, where claims are brought there needs to be a careful assessment of the sort of timescale within which the Secretary of State should be asked to respond and the Court asked to make an order or list a hearing. As above, the Court recognises the pressures that the Home Office is under, and overambitious requests for expedition may backfire. On the other hand experience suggests that the court is willing to grant very significant expedition in appropriate cases – in one case in which Tim Buley QC acts for an high risk individual in Brook House (where there is a confirmed case of Covid-19), the court set down an interim hearing within 7 days including the Easter break.
 The written ruling was provided in the urgent circumstances of the application using a corrected version from voice recognition software and the judge has given permission to refer to it on that basis.