Factual and Procedural Background
This opinion concerns judicial review claims challenging the lawfulness of statutory Guidance and policies issued by the Secretary of State for the Home Department (SSHD) relating to the detention of vulnerable adults under immigration powers. The central complaint is that the definition of "torture" used in the "Adults at Risk in Immigration Detention" Statutory Guidance (AARSG) and associated policies unlawfully excludes victims of torture inflicted by non-state actors from protection, contrary to earlier broader interpretations.
The statutory Guidance at issue, AARSG, was issued under section 59 of the Immigration Act 2016 and came into force in September 2016. Two related policies are also challenged: Detention Services Order (DSO) 9/2016, which provides instructions on Detention Centre Rules (DCR) medical reporting, and Chapter 55b of the Enforcement Instructions and Guidance (EIG 55b), which provides caseworker guidance aligned with the AARSG.
The claimants raised three main issues: the restrictive definition of torture in the AARSG; inconsistency between EIG 55b and the AARSG; and alleged non-compliance with the public sector equality duty under section 149 of the Equality Act 2010. The SSHD conceded unlawfulness in the detention decisions of the individual lead claimants, but damages and related issues were adjourned.
The background includes the statutory detention framework, prior case law emphasizing transparency and lawful policy in immigration detention, and the existing safeguards under Detention Centre Rules, particularly Rule 35 medical reporting provisions. The policy evolution is traced through earlier broader definitions of torture, including the "EO definition" (a broader, non-state actor inclusive definition) and the adoption of the narrower United Nations Convention Against Torture (UNCAT) definition in recent Home Office policies.
The court also examined detailed evidence from experts and organizations about the impact of detention on torture survivors and the practical implications of the definitions used.
Legal Issues Presented
- Whether the AARSG unlawfully restricts the definition of "torture" compared to the Detention Centre Rules and earlier case law, excluding victims of non-state actor torture from protection.
- Whether the caseworker guidance in EIG 55b is inconsistent with and subordinate to the AARSG.
- Whether the SSHD complied with the public sector equality duty under section 149 of the Equality Act 2010 in issuing and implementing these policies.
- Whether the use of the UNCAT definition in the AARSG and related policies is rationally justified and supported by evidence.
- The lawfulness of the medical reporting procedures under Rule 35 of the Detention Centre Rules as affected by the definition of torture used.
Arguments of the Parties
Claimants' Arguments
- The definition of "torture" in the AARSG unlawfully narrows the scope by adopting the UNCAT definition, thereby excluding victims of torture by non-state actors who remain vulnerable to harm in detention.
- This exclusion conflicts with earlier case law (notably EO and Others v SSHD) which recognized a broader definition of torture including non-state actors ("EO torture").
- The AARSG's list of vulnerability indicators is exhaustive and does not adequately cover those excluded by the UNCAT definition, resulting in unlawful gaps in protection.
- The SSHD failed to comply with the public sector equality duty by not properly assessing the equality impact of the new definition and related policies.
- The requirement for medical practitioners to apply the UNCAT definition involves making political judgments outside their expertise, undermining the medical reporting process and doctor-patient trust.
- There is no rational or evidential basis for distinguishing vulnerability based on the identity of the perpetrator of torture.
SSHD's Arguments
- The statutory Guidance and policies have been misunderstood; the UNCAT definition is appropriate for the purposes of identifying those most vulnerable to harm in detention.
- The AARSG does not purport to alter the meaning of "torture" in the Detention Centre Rules, and different definitions can be used for different purposes.
- The list of indicators in the AARSG is not exhaustive; the policy allows for other unspecified indicators of vulnerability.
- The adoption of the UNCAT definition aims to reduce unmeritorious claims and the burden on medical practitioners and the detention system.
- Medical practitioners are not required to make political judgments; the caseworker assesses political issues.
- The SSHD has considered equality impacts and will address any necessary amendments to comply with the Equality Act duties.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (WL (Congo)) v SSHD [2011] UKSC 12 |
Requirement for transparent policy statements governing detention powers and the right of individuals to know and challenge the criteria applied. |
Reinforced the importance of lawful, clear detention policies; the court emphasized the need for clarity in identifying vulnerable persons in immigration detention. |
| R (Detention Action) v SSHD [2014] EWCA Civ 1634 |
Importance of clarity and sufficient definition in detention policies affecting personal liberty. |
Supported the principle that policies must be sufficiently clear for detainees to understand criteria applied to them. |
| EO and Others v SSHD [2013] EWHC 1236 (Admin) |
Interpretation of "torture" in detention policy and Rule 35 medical reporting; broader definition including non-state actors. |
Determined that "torture" in detention rules had a broader meaning than the UNCAT definition, including acts by non-state actors. |
| R (D and K) v SSHD [2006] EWCA 980 (Admin) |
Role and importance of Rule 35 medical reports as independent evidence of torture affecting detention decisions. |
Confirmed the distinct and important role of Rule 35(3) reports in safeguarding detainees claiming torture. |
| In re Findlay [1985] AC 318 |
Lawfulness of executive policy and right to have cases considered under lawful policy. |
Supported the principle that executive discretion must be exercised lawfully and transparently. |
| R(Staff Side of the Police Negotiating Board) v Secretary of State for Work and Pensions [2011] EWHC 3175 (Admin) |
Public sector equality duty and the role of officials in its fulfillment. |
Referenced in relation to the SSHD's compliance with equality duties. |
| Bracking v Secretary of State for Work and Pensions [2014] EWCA Civ 1345 |
Interpretation of public sector equality duty and ministerial responsibility. |
Considered in the context of the SSHD's obligations under the Equality Act 2010. |
| Hotak v Southwark LBC [2015] UKSC 30 |
Approval of principles regarding public sector equality duty and ministerial responsibility. |
Used to support discussion of the SSHD's duty to have due regard to equality considerations. |
Court's Reasoning and Analysis
The court undertook a detailed analysis of the definitions of "torture" used in the AARSG, the Detention Centre Rules (DCR), and related policies. It found that the AARSG adopts the UNCAT definition of torture, which restricts the scope to acts inflicted by or with the consent or acquiescence of public officials or terrorist groups holding territory. This contrasts with the broader "EO definition" accepted in earlier case law, which includes acts by non-state actors.
The court held that the definition of "torture" in Rule 35(3) of the DCR, as authoritatively interpreted in EO, remains broader and cannot be altered by the AARSG or associated policy. Therefore, the DSO 9/2016 and associated templates, which instruct medical practitioners not to make reports unless the UNCAT definition is met, are unlawful.
The court found that the AARSG’s list of vulnerability indicators, including torture as defined, is effectively exhaustive. This excludes some victims of non-UNCAT torture who do not fall into other indicators, thereby failing to protect all persons particularly vulnerable to harm in detention as required by section 59 of the Immigration Act 2016. This exclusion lacks a rational or evidential basis, rendering the AARSG unlawful to that extent.
The court also addressed the practical difficulties and irrationality of requiring medical practitioners to apply a definition of torture that involves political judgments about state involvement or acquiescence. This undermines the medical reporting process and trust between detainees and doctors.
Evidence from expert witnesses and organizations demonstrated that the identity of the perpetrator is not determinative of vulnerability to harm in detention; the key factor is the experience of powerlessness and the impact of severe pain or suffering, regardless of whether inflicted by state or non-state actors.
The court acknowledged the SSHD’s concerns about the increased number of R35 reports and resource burdens under the broader definition but emphasized that policy must lawfully protect all vulnerable individuals, not only those fitting a narrower definition.
Regarding the public sector equality duty, the court concluded that the SSHD’s assessment was necessarily flawed because it was based on an incorrect interpretation of the policies. Proper compliance requires that the policies be lawful and internally consistent first.
The court declined to resolve some procedural and evidential disputes, noting that the SSHD had undertaken not to reintroduce the original DSO 9/2016 without court approval and amendments to the statutory framework.
Holding and Implications
The court held that aspects of the Adults at Risk in Immigration Detention Statutory Guidance (AARSG) are unlawful due to:
- Ignoring the correct, broader definition of "torture" as established in Rule 35(3) Detention Centre Rules and EO case law;
- Adopting an effectively exhaustive list of vulnerability indicators that excludes some persons particularly vulnerable to harm;
- Lacking a rational or evidential basis for distinguishing vulnerability based on the identity of the perpetrator;
- Imposing unreasonable requirements on medical practitioners to make political judgments;
- Failing to properly consider the public sector equality duty due to these errors.
The direct effect of this decision is that the current AARSG and associated policies (including DSO 9/2016 and EIG 55b) require amendment to comply with the law. The SSHD must revise the policies to ensure consistency with the broader definition of torture and provide appropriate indicators to cover all who are particularly vulnerable to harm in detention.
No new precedent altering the substantive legal principles regarding immigration detention or the interpretation of "torture" beyond EO has been established. The decision primarily enforces compliance with existing law and statutory duties. The SSHD has undertaken not to revert to the unlawful policies without court permission and appropriate statutory amendments.