AH, R (on the application of) v Secretary of State for the Home Department

MRS JUSTICE JEFFORD: Introduction

1. These cases are joined claims for judicial review arising out of the detention of each of the claimants at Brook House IRC. AH was detained between 2 December 2023 and 11 March 2024 and IS was detained between 28 July 2023 and 12 January 2024. The relevant period of detention is, therefore, in total from the end of July 2023 to March 2024.

2. In summary both claimants had previously been in immigration detention during which they had exhibited serious mental health issues. They were released following judicial review proceedings, with payment of compensation, but subsequently detained again. It is the claimants’ case that during these further periods of detention, they variously self-harmed, had suicidal thoughts and were subject to constant supervision. Neither was, however, the subject of a report under Rule 35(1) or 35(2) of the Detention Centre Rules 2001 and neither had his detention reviewed. IS was not released until further judicial review proceedings were commenced. AH’s grounds

3. AH’s grounds as amended are: (i) Ground 1: the detention is outside the powers of paragraph 2(3) of schedule 3 to the Immigration Act 1971 and/or amounts to a breach of Article 5 of the ECHR. (ii) Ground 2: the detention is vitiated by the SSHD’s failure to comply with her own policy relating to the detention of vulnerable people, namely Rule 35 of the Detention Centre Rules 2001 (“the DCRs”) and the Adults at Risk in Immigration Detention Policy (“the AAR Policy”). (iii) Ground 3: in breach of the policy in Rule 40 of the DCRs, the defendant’s agents unlawfully removed AH from association when (a) the decision to do so was not authorised by a person empowered to do so; (b) it was not, on any reasonable assessment, necessary for security and safety to do so; and (c) it was effected in breach of policy. (iv) Ground 4: in breach of Rule 41 of the DCRs, the defendant’s agents unlawfully used force against AH where (a) one of the defendant’s agents who used force was not empowered to do so and (b) it was not reasonably necessary to do so. (v) Ground 5: In breach of policy contained in DSO 04/2017, the defendant’s agents unlawfully recorded a strip search of AH. (vi) Ground 6: the defendant’s unlawful conduct identified in grounds 2, 3, 4 and 5 is reflective of systemic failures which mean that AH was detained in conditions which constituted a breach at the time of detention, and show an ongoing breach, of the SSHD’s Article 3 ECHR “systems duty”.

4. The SSHD contests each of these grounds. IS's grounds

5. IS’s grounds were as follows: (i) Ground 1: on Hardial Singh principles, IS’s detention was unlawful from the outset. IS’s case was, in part, that the defendant had started from the wrong presumption, namely that IS should be detained. Further, the defendant knew of IS’s mental health history; IS was at risk level 3 on the AAR scale; and there was, therefore, on the contrary, a presumption against detention. There was no imminent prospect of removing IS who had a pending appeal at an early stage. Concerns arising from IS’s risk of offending or absconding were not an “overriding” consideration and did not justify detention. Alternatively, IS’s detention became unlawful. It soon became obvious that detention was causing harm to IS but his detention was not reviewed and the Rule 35 process was not triggered. Further or alternatively, that ought to have been obvious by 20 October 2023 at the latest. By that time, a Rule 35(3) report had been made but the defendant continued to decline to order release from detention. (ii) Ground 2: The detention of IS failed to comply with the 2001 DCRs and the SSHD’s own policies. (iii) Ground 3: as it is put in the Statement of Facts and Grounds: “The system which is maintained by the Defendant to safeguard adults in immigration detention with mental health problems giving rise to risks of self-harm and suicide is inadequate and fails to comply with the systems duty under Article 2 or Article 3 ECHR. Further, and in the alternative, the system failed to provide safeguards sufficient to ensure that the interferences with the Claimant’s Article 8(1) rights as a result of detention are in accordance with the law.” The detail of this ground was subsequently amended to align with AH’s ground 6. (iv) Ground 4: for the same reasons that IS’s detention was unlawful, it also violated his Article 5(1) and Article 8 rights.

6. In IS’s case, the SSHD has conceded all the grounds apart from the systems ground and a consent order was made accordingly. Key rules and policies Detention Centre Rules 2001

7. Rule 3 sets out that the purpose of detention centres is to provide secure but humane accommodation for detained persons. Sub-paragraph (2) requires due recognition to be given to the need for awareness of the particular anxieties to which detained persons may be subject.

8. Rule 33 provides that every detention centre shall have a medical practitioner who shall be trained as a GP.

9. Rule 34(1) provides: “Every detained person shall be given a physical and mental examination by a medical practitioner … within 24 hours of his admission to the detention centre.”

10. Rule 35 which is very much the focus of the claimants’ case on the systems ground is (in so far as relevant) as follows: “(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) and (3) to the Secretary of State without delay. …” Adults at Risk in Immigration Detention

11. The AAR Policy recognises that there is an existing presumption in immigration policy that a person will not be detained. The purpose of the AAR Policy is expressly to strengthen the presumption against detention of those who are particularly vulnerable to harm in detention, whilst recognising that detention may still be appropriate in an individual case when “immigration control considerations outweigh the presumption of release, even for a person considered to be at risk”. The policy therefore requires an assessment before any decision to detain and, as below, ongoing assessment. “In all cases in which an individual is being considered for immigration detention in order to facilitate their removal, an assessment must first be made of whether the individual is an “adult at risk” in the terms of this policy and, if so, the level of evidence (based on the available evidence, which may be limited to the individual’s account) indicating the level of the policy into which they fall. If the individual is considered to be at risk, a further assessment will be made of whether the immigration considerations outweigh any risk identified. Only when they do will the individual be detained.”

12. Under the heading “Who is regarded as an adult at risk”, in summary, an individual is regarded as an adult at risk if (i) they declare that they are suffering from a condition, or have experienced a traumatic event, including torture, that would be likely to render them particularly vulnerable to harm if placed in detention or if they remain in detention; (ii) those considering or reviewing detention are aware of medical or other professional evidence that leads to such a conclusion; and (iii) observations of members of staff lead to a belief that the adult is at risk in the absence of self-declaration or other evidence.

13. The AAR Policy then states: “The nature and severity of a condition, as well as the available evidence of a condition or traumatic event, can change over time. Therefore, decision makers should use the most up-to-date information each time a decision is made about placing someone into detention or continuing that detention.”

14. The AAR Policy sets out levels of evidence: (i) Level 2 states that evidence which is professional evidence (for example from a social worker, medical practitioner or NGO) or official documentary evidence, which indicates that the individual is (or may be) an adult at risk should be afforded greater weight than self-declaration. It should normally be accepted and consideration given to how this may be impacted by detention. (ii) Level 3 evidence is professional evidence (for example from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm, for example, by increasing the severity of the symptoms or condition that has led to the individual being regarded as at risk. Such evidence should be afforded significant weight and should normally be accepted and any detention reviewed in the light of the accepted evidence.

15. The AAR Policy includes guidance expressed to be to assist decision makers in weighing evidence and balancing any identified risks to the individual against the immigration considerations. An individual will be assessed as Level 2 if there is evidence indicating that an adult is at risk but no indication that detention is likely to lead to a significant risk of harm if detained for the period identified as necessary to effect removal. They should then only be considered for detention if the date of removal is fixed or they present a level of public protection concerns that justify detention or there are negative indicators of non-compliance that suggest the individual is highly likely not to be removable unless detained. Level 3 is in the following terms: “Where on the basis of professional and/or official documentary evidence, detention is likely to lead to a risk of harm to the individual if detained for the period identified as necessary to effect removal, they should be considered for detention only if one of the following applies: • removal has been set for a date in the immediate future, there are no barriers to removal, …. • The individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence, or there is a serious relevant national security issue or the individual presents a current public protection concern. It is very unlikely that compliance issues, on their own, would warrant detention of individuals falling into this category. Non-compliance should only be taken into account if there are also public protection issues or if the individual can be removed quickly.”

16. Assessment of risk should be ongoing: “Following the detention of any individual (including those regarded as being at risk) there should be an ongoing assessment of risk made by a caseworker throughout the period of detention which will facilitate the identification of any emerging risk, or changes to known risk factors. If any new risk factors emerge, or any existing risk factors change, there should be a formal review of the case, with a fresh consideration of the balance of risk factors against the immigration factors….” Detention Services Order 09/2016 Detention Centre Rule 35

17. Under the heading “Preparing and submitting Rule 35 reports” this DSO states: “Where an immigration removal centre (IRC) doctor considers that one or more of the criteria in rule 35 of the Detention Centre Rules 2001 (DC) …. are met they must complete a clear and legible report using the relevant template … There are separate templates for each of the reporting categories concerned. The templates guide doctors through the information that is required in a completed report. In any case where a detainee falls into more than one of the reporting categories, a separate report must be made in respect of individual categories concerned. …” Detention: General Instructions (Version 3.0)

18. The Detention: General Instructions provide that, once it has been decided that a person is to be detained, consideration must be given to the person’s level of risk, if any, in detention. Form IS.91RA Risk Assessment is to be completed and forwarded to the detainee escorting and population management unit (DEPMU) and: “Risk assessment is an ongoing process. Should further information become available to the immigration completion and enforcement (ICE) team or caseworker, which impacts upon potential risk (either increasing or decreasing risk) during an individual’s detention, that information must be forwarded to DEPMU using form IS91RA part C. On receipt of this form (which can also be completed by other Home Office or removal centre management, or medical staff) DEPMU will reassess risk and reallocate detention location as appropriate. Any alteration in their assessment of risk will require a new IS91 to be issued on which up-to-date risk factors will be identified. ….” The Assessment Care in Detention and Teamwork (ACDT) and DSO 01/2022

19. The ACDT procedure is adopted from the ACCT procedure in the prison system. Mr Armstrong KC raised an issue as to the legality of the use of this procedure without adaptation from the ACCT form on the basis that a person in prison is in lawful custody for the duration of their sentence, whereas a person in immigration detention is detained on an administrative basis subject to review. Illegality was not a ground for challenge and is not a matter to be decided. As I will come to, the more significant point was that the nature of the process produced “disconnects” within the system that went to the systems ground.

20. The ACDT form provides a flow chart which indicates that the procedure is for use where “A resident has self-harmed or is at risk of self-harm or suicide”.

21. The steps in the form/ associated forms are as follows: (i) Section 2: Concern Form which includes setting of immediate observation levels and recording of any immediate factors added to the section for Risks, Triggers and Protective Factors (ii) Section 3: Immediate Action Plan (iii) Section 4: ACDT Assessment. At this stage Risks, Triggers and Protective Factors are completed (iv) Section 5: Case Reviews (v) Section 6: Ongoing Record (vi) The ACDT is not to be closed until all issues in the form under Support Actions are resolved. (vii) Section 7: Post-Closure provides for monitoring for a minimum of 7 days after closure and for a Post-Closure review.

22. DSO 01/2022 provides additional detail as to this process and these steps. It was accurately described by Mr Armstrong as highly structured and it can be inferred that the process is intended to be carefully followed in this structured way rather than regarded as a form filling exercise.

23. Under “Risks and Triggers”, the DSO states that an individual’s risk of self-harm and/or suicide may increase in certain circumstances and includes a non-exhaustive list which includes mental illness, previous incidents of self-harm, segregation and experience of torture, inhumane treatment, and trauma including violence.

24. An ACDT can be opened by a member of the Home Office, supplier or healthcare staff - and is not limited to being opened by healthcare staff – if they receive information or observe behaviour which indicates a risk of self-harm or suicide. Where concerns are identified, an ACDT plan must be initiated immediately by completing the Concern Form and submitting it to the manager or duty manager.

25. Paragraph 36 provides “Responsibilities of Duty Operations/ Residential Manager”. Amongst other things, it provides that within an hour the duty operation manager/ residential manager must meet with the individual and complete an immediate action plan. The manager must also ensure that the individual is offered, where available and appropriate, the opportunity to talk to a healthcare practitioner, the DET on-site team and the welfare team. The reference to a Healthcare Practitioner cross-refers to paragraph 39 and Rule 35 Reports.

26. Paragraphs 39 and 40 include the following: “39. Healthcare staff should note the opening of the ACDT plan in the clinical record and provide any relevant information which will contribute to the assessment and subsequent risk management of the detained individual. Consideration must be made as to whether the information is appropriate to trigger a Rule 35 … report. However, given that an individual may be subject to ACDT for a number of reasons, being subject to an ACDT does not equate automatically to a need to raise a rule 35(2) report.

40. DSO 09/2016 (Detention Centre Rule 35 ….) states a medical practitioner (the centre’s GP) must issue a rule 35(2) report when they have concerns about suicidal intent…..”

27. Paragraphs 45 to 50 deal with the ACDT Assessment. Paragraph 50 requires the ACDT Assessor to record the findings and outcome of the assessment interview and any actions discussed to be fed into the Care Plan. It continues: “….All background information checked as part of the assessment must also be recorded on the ACDT Assessment Key Information form. Any risk identified that may impact the detained individual’s suitability for being detained … must be communicated as soon as possible to supplier staff, DEPMU and both the local compliance team and DET by completing and IS91 RA Part C. The DET team will then forward the IS91 RA Part C by email to the relevant dedicated casework generic inbox.”

28. The paragraphs that follow address the Case Reviews. Paragraph 60 includes: “… At every review meeting the team must discuss risk information, including the level of risk (frequency, method and details of any attempted or actual self-harm which occurred since the last review), what events/signs will be monitored and which ones will trigger further action or an immediate ACDT case review. Any support actions that have been put in place and the effectiveness of these as well as if anything else may be required or could be provided to support the individual. The case review team should discuss with the detained individual the reasons for any acts of self-harm and options for alternative coping strategies. All decisions and reasoning behind then must be fully documented using the ACDT document. All actions must have an action owner and be timebound. …”

29. Paragraphs 89 to 118 are concerned with detained individuals under constant supervision. Paragraph 89 states that: “Constant supervision in the detention setting is defined as a period of one-to-one observation of a detained individual, who has been identified to be at serious risk of carrying out acts of self-harm or other behaviours which could lead to that detained individual accidentally or intentionally killing themselves , and which has been implemented in order to reduce this risk and intervene in the case of an emergency. Staff conducting and supporting constant supervision must maintain accurate records of events during the period of supervision in order to accurately record progress and inform care planning. This means ensuring the following pages on the ACDT are completed.” (Emphasis added) The system: introduction

30. The claimants’ cases, both in respect of individual grounds and the systems ground, is that the intent of the system is that the AAR Policy should act to protect those who are vulnerable from detention. There is a strong link between the AAR Policy and Rule 35 and between Rule 35 and the ACDT process. Rule 35 reports are mandatory in the circumstances set out in the rule and both inform the evidence of risk and are the direct route for reference of those at risk of harm in detention to be referred to the Home Office for review. It does not follow that someone placed on an ACDT should necessarily be the subject of a Rule 35(1) or (2) report but it is the main driver for identifying those in respect of which such reports should be prepared. The link is expressly made in paragraph 39 of DSO 01/2022. In the cases of AH and IS, the ACDT processes were not operated properly and nothing that should have triggered a Rule 35 report did. A recurrent issue, if not the sole issue, was that there was no consideration of the detail or even the outline of the detained person’s history - in AH’s case, no consideration of two reports that had been prepared on him that expressly identified the risk posed by further detention and in IS’s case no consideration of his mental health as identified in his previous successful claim for judicial review.

31. The defendant submits, at least in the case of AH, that his experiences showed the system operating properly. A particular emphasis is placed on the assessments that were made at any given point as to the risk of self-harm or suicide. It is submitted that these were proper assessments that are not open to challenge and that they were properly forward looking assessments. The defendant says that AH’s case overplays the significance, if any, of minor incidents of self-harm and historic reports on his mental health. AH’s immigration history

32. In 2009 AH left Egypt for France where he lived with his brother. In January 2015, he arrived in the UK. That entry was illegal and AH proceeded to work illegally. In short, and prior to the period of detention in issue, he has since been imprisoned for immigration offences on two separate occasions and detained under immigration powers for three separate periods. Between December 2020 and July 2023 he lived in France. The defendant argues that the context for AH’s detention which is in issue in this case is his very poor immigration history.

33. On 24 September 2015, AH was encountered by police driving illegally. He then claimed asylum for the first time, despite the fact that he had made a previous claim in France. He was released on reporting conditions but absconded and his asylum claim was treated as withdrawn.

34. He remained an absconder until, in April 2017, he came to the attention of immigration authorities again. From 27 April 2017 to 11 May 2017, he was detained at Morton Hall IRC. He was released under reporting conditions but absconded again. On arrival at Morton Hall, he was noted to have self-harmed by scratching his wrists.

35. On 13 October 2017, he attempted to enter France with false documents. He was returned to the UK and held on remand at HMP Elmley. He was then convicted of possession of false identity documents with intent and sentenced to 12 months imprisonment. He remained at HMP Elmley until 1 December 2017 and was then moved to HMP Maidstone where he remained until 17 April 2018. His period of imprisonment ended on 14 February 2018 and he then remained detained in prison under immigration powers. While in prison he was served, on 21 November 2017, with a decision to deport. A Deportation order was signed on 9 January 2018 and served on 24 January 2018.

36. While at Elmley, on 21 October 2017, an ACCT was opened. While on the ACCT, AH self-harmed by cutting his left inside wrist with a razor. He denied suicidal thoughts but his risk of further self-harm was assessed as high. On 28 November 2017 he was assessed by a psychiatrist whose impression was that he was suffering from long term anxiety disorder and recent adjustment disorder. While at Maidstone, he reported a male voice telling him to kill himself. On 29 December 2017, he reported witnessing domestic violence and suffering physical abuse as a child.

37. On 18 April 2018, he was transferred to Brook House IRC under immigration powers. He made a formal asylum claim on 22 April 2018. In August 2018, he commenced judicial review proceedings challenging his detention. The claim was settled and he was released on reporting conditions on 7 September 2018.

38. While at Brook House: (i) On 28 June 2018, a Rule 35(3) report on him was produced which suggested that AH may have been the victim of torture and concluded that AH’s scarring was consistent with his account of being attacked in Egypt. As a result, he was assessed as AAR risk level 2 because he might have been the victim of torture. (ii) On 6 July, he self-harmed by cutting his left wrist with a razor blade and was assessed as at high risk of future self-harm.

39. AH was assessed by a psychiatrist, Dr Burman-Roy. In his report dated 7 July 2018, Dr Burman-Roy, diagnosed PTSD and a severe depressive episode. He noted that AH self-harmed, had suicidal thoughts on a regular basis and heard voices encouraging him to harm himself. AH’s reported thoughts of self-harm were intermittent. He considered that AH’s mental health problems were contributed to by experiences in Egypt as a child and his flight to Europe and were worsened by his experience in immigration detention, resulting in psychiatric harm: “… [AH] has reported that his ongoing detention has precipitated his symptoms of PTSD and been a perpetuating factor in the ongoing existence of PTSD and Depressive symptoms. It is therefore my opinion that his immigration detention has worsened his mental health and resulted in psychiatric harm (depression and worsened levels of anxiety with consequent PTSD).” He expressed the opinion that AH could be treated by a sustained period (12-18 months) of psychological therapy in a stable social environment.

40. This report was sent to the defendant and it was following this that his claim was settled and he was released from detention.

41. AH’s asylum claim was refused on 29 April 2019. He appealed to the FTT and that appeal was dismissed on 4 December 2020. He was granted permission to appeal to the Upper Tribunal but the appeal was treated as abandoned because he had left the UK. During this period, there were two recorded incidents of self-harm.

42. On 25 August 2020, AH was assessed by consultant forensic psychiatrist, Dr Nuwan Galappathie, and a report was produced which was relied upon in the FTT. Dr Galappathie diagnosed recurrent depressive disorder, generalised anxiety disorder, and PTSD. The report recorded AH’s description of having suicidal thoughts in prison and in detention occurring when he felt angry and having heard voices together with consequent self-harm. Dr Galappathie expressed the opinion that imprisonment and detention had had a significant adverse impact on AH’s mental state. He considered that AH would gradually improve provided he had stability in terms of accommodation and remaining in the UK but that there was a significant risk that he would relapse particularly if he encountered stress relating to his immigration proceedings or other issues. In relation to the report of Dr Burman-Roy, Dr Galappathie agreed that a period of further detention “was likely to have a significant adverse effect upon his mental state. He presents as an individual with a fragile mental state that is likely to worsen if he is re-detained.”

43. It is apparent from the decision of the FTT that both the reports of Drs Burman-Roy and Galappathie were before the tribunal. It was submitted by Mr Fletcher on behalf of the defendant that Dr Galappathie’s report had been discredited by the tribunal. That was not, on my reading of the decision, the case. The judge regarded AH’s accounts of his prior experiences as inconsistent and did not accept that AH had suffered any mental health difficulties before his detention in 2017. But he did regard both the reports of Dr Burman-Roy and Galappathie as concluding that it was AH’s experiences in the UK that had caused his mental health issues to manifest themselves. That was material to the risks faced by AH if returned to Egypt. The judge accepted the diagnosis of Dr Galappathie but not that AH faced a high risk of suicide if returned to Egypt.

44. It is convenient to observe at this point that the defendant asserted in paragraph 16 of the Amended Detailed Grounds of Defence that Dr Galappathie’s independence as an expert witness and his approach to diagnosis was roundly criticised by the court in the case of CE Cameroon PA/01112/2020. The claimants responded that an investigation that followed was concluded in August 2024 with no further action taken.

45. Following the hearing in the present cases, in February 2025, the claimants’ solicitors wrote to the court to inform the court that they had received a letter from Dr Galappathie dated 30 December 2024 disclosing that he was the subject of two outstanding GMC investigations concerning reports in unrelated cases. Because the letter did not relate to the present cases, the individual solicitors had only become aware of it through the defendant who suggested that it was relevant to the present proceedings. Despite that no further submissions were made and the claimants’ solicitors’ letter remains the full extent of anything before the court.

46. I take the view that any investigation (the outcome of which is not known to the court) is irrelevant to the issues before me. Dr Galappathie was, at the time of his report in August 2020, a fully registered and licensed medical practitioner. Any report that he produced at the relevant time was capable of being level 3 evidence for the purposes of the AAR Policy and ought to have been considered as such. Anything that might have happened afterwards in respect of the clinician would not be relevant to the consideration and weight that should have been given to the evidence at the time. In any event, as the claimants say, in AH’s case it appears that no consideration was given to this evidence at all rather than that it was rationally given lesser weight.

47. On 18 January 2021, AH withdrew his appeal, having gone to France, and in February 2021, the Upper Tribunal confirmed that the appeal was withdrawn.

48. AH returned illegally to the UK in July 2023. He was arrested for immigration and documents offences and held at HMP Elmley and subsequently sentenced to 10 months imprisonment. He told prison staff that he had self-harmed or attempted suicide in the last 12 months and that voices told him to do it but he had no current thoughts. However, and although the medical record is confusing, it appears that an ACCT was soon opened. A note made on 27 July records that while in police custody he had had “quite intense thoughts to end his own life” although he did not now want to end his own life. He had told staff that he had received mental health intervention while in custody before but staff could not find any record.

49. AH was then detained and transferred to Brook House on 5 December 2023.

50. On 13 November 2023, in advance of AH’s detention, the Defendant prepared AH’s IS.91. Despite what was known about him, and even if that was limited to his recent period at HMP Elmley, the only risk factor recorded was “Serious criminal activity” and not “Suicide/ Self-Harm Risk”. The IS.91RA Part A, against “Medical problems/concerns-RULE 35” , recorded the Rule 35(3) report received on 28 June 2018 and it was recorded that AH was assessed as Risk Level 2 within the AAR Policy. Neither document, therefore, made any reference to the reports of Drs Burman-Roy or Galappathie, which the defendant clearly had and both of which predicted a deterioration in AH’s mental state if detained further. There was no evidence of any treatment since the reports. There was no mention of AH’s history of self-harm in the community or in custody or detention.

51. On 2 December 2023, authorisation for detention was sought from the Defendant’s Detention Gatekeeper (‘DGK’). The recommendation to detain reflected the IS.91 in that it noted the assessment as Level 2 risk and made no reference to any other evidence of AH’s mental health. In summary, the DGK concluded that the presumption against detention was outweighed by the assessment that if released there was a high risk that AH would abscond. The recommendation noted a need for an up-to-date medical report but no such report was obtained.

52. In short, AH’s case is that the DGK approved detention on the basis of the deficient information in the recommendation. The defendant acknowledges the past instances of AH’s mental health issues but does not accept that they were relevant to the assessment of AH’s mental health at the point of his detention in 2023. The main thrust of the defendant’s argument is that isolated and/or minor incidents from years earlier had no or no significant bearing on the most up to date information as to AH’s mental health. The defendant’s case on the facts was as follows.

53. The incident of self-harm at Morton Hall was a single superficial incident. At the time, AH had indicated further thoughts of self-harm or suicidal thoughts. He did not attend a doctor’s appointment the following day and at no point during this detention did any medical practitioner raise any concerns.

54. The incidents at HMP Elmley were similarly historic and the self-harm minor and AH was adequately and properly managed: (i) On initial assessment in October 2017, the nurse recorded that AH stated he had no history of self-harm or suicidal thoughts and no current thoughts of that nature. (ii) On 23 October 2017, he was prescribed Mirtazapine for low mood by a doctor and saw a psychiatric nurse. Because of his low mood, he was placed on an ACCT. It was later recorded that he was happy with his treatment and, in an ACCT review, on 30 October 2017, recorded that he had not self-harmed and had no thoughts of doing so. His ACCT was closed on 20 November 2017 because he was considered to no longer pose a risk of self-harm. (iii) AH was assessed by a psychiatrist, Dr Ko, on 28 November 2017. He denied any thoughts of self-harm. He was considered to have “long term anxiety disorder superimposed by recent adjustment reaction from being in the hospital” . He was prescribed sertraline. In short, the defendant submits, AH was properly managed under an ACCT and his long term anxiety was treated with medication and none of this was relevant to his detention years later.

55. In relation to the period of AH’s custody/detention at HMP Maidstone from December 2018 to April 2018 the defendant submits that: (i) At the start of this period, AH denied any thoughts of self-harm. As a result of further presentations, however, he was seen in surgeries and a care plan developed. (ii) On 22 December it was noted that AH did not present with “any evidence of a severe or enduring mental health problem. He also appears to be managing his adjustment issues very well.” No evidence of risk to himself was seen.

56. In relation to the period of AH’s detention at Brook House from April to September 2018, the defendants makes the following points: (i) As a result of the incident of self-harm an ACDT was opened. (ii) Following the report of Dr Burman-Roy, AH was released. (iii) However, the defendant emphasises that, whilst Dr Burman-Roy diagnosed PTSD and a severe depressive episode, he did not express the opinion that these symptoms would persist and he provided suggestions for treatment. His report, therefore, could not be taken as evidence that AH would never be suitable for detention.

57. The defendant points out that, in the period up to 4 December 2020 and the dismissal of AH’s appeal to the FTT, that is a period of over two years, AH relies only on two instances of self-harm and the report of Dr Galappathie. There were no further recorded incidents relating to his mental health until July 2023 (although he had for much of this period been out of the country and/or not within the immigration system).

58. Although Dr Galappathie found AH to suffer from recurrent bouts of moderate depression, generalised anxiety and PTSD, AH’s records showed that in June 2020, when assessed by consultant psychiatrist, Dr Meena Naguib, her opinion had been that AH was not suffering from any mental illness, had been wrongly diagnosed with PTSD and was suffering the effects of drug use.

59. Dr Galappathie’s conclusion was that AH “presents as an individual with a fragile mental state that is likely to worsen if he is re-detained” and the defendant emphasises again that this did not amount to an expression of opinion that AH’s mental health meant that he would never be suitable for detention.

60. While AH was at HMP Elmley from 22 July 2023: (i) On AH’s initial assessment on 22 July 2023, previous episodes of self-harm were noted but AH indicated no current thoughts. (ii) An ACCT was opened. (iii) At a surgery on 2 August 2023, it was noted that AH had no thoughts of deliberate self-harm. (iv) AH was invited to, but did not attend, an Emotional Coping Skills workshop, on 9 October 2023. (v) AH attended an Integrated Psychoeducation workshop on 28 November 2023.

61. At AH’s screening at Brook House on 5 December 2023, AH’s patient record noted he had thoughts of suicide and self-harm often and heard voices telling him to cut himself and had a previous history of self-harm in prison. The assessing medical staff member characterised her concerns about both deliberate and unintentional self-harm as “moderate – definite concerns” and recommended referral to the mental health team. This did not trigger either a Rule 35(1) or 35(2) report. On the same date, AH was placed on an ACDT. The defendant contends that this was an appropriate response and that the ACDT was regularly reviewed.

62. The claimant’s case, however, is that the ACDT procedures were not properly followed and the forms were not properly completed. For example, the Concern Form said that on arrival AH stated that he had been having thoughts of suicide and had been hearing voices when locked in his room. Nonetheless the only “trigger” identified was “takes medication”. The support actions had little or nothing to do with AH’s risk. It was, however, noted that AH heard voices and, in his assessment interview, that he self-harmed to stop the voices and that his “ mental health is triggered by being in prison/IRC. Claims cutting is the only way to help” . None of that triggered at least a Rule 35(1) report.

63. Alongside the ACDT processes, on 6 December he was reviewed by a nurse who recorded that he had no active suicidal thoughts and had good insight into his mental health. He stated that he heard voices telling him to cut himself and would sometimes go to an officer when he did. His ACDT case review on the same day noted that AH still had thoughts of self-harm but was “OK for now”.

64. Also on 6 December, AH was assessed by a psychiatrist, Dr Afzal. Dr Afzal’s entry dated 6 December 2023 recorded AH’s history, including that AH had “self reported being under the care of MHA in Barking and having been admitted to a psychiatric hospital, reported hearing a female voice telling him to cut himself, h/o childhood physical abuse, currently on an ACDT, no signs of mental illness, only symptom was voice.” The doctor noted that AH reported a voice encouraging suicide but denied any current plans or intent.

65. As the claimant points out, Dr Afzal only had by way of background the mental health team’s note from the same day. He did not have any detailed medical history, including that of self-harm and suicidal thoughts, or the consistent diagnoses of Drs Burman-Roy and Galappathie. AH was not put on the centre’s mental health caseload and nothing prompted a Rule 35(1) or (2) report despite past self-harm and reports of the voice. The defendant submits to the contrary that AH’s referral to a psychiatrist on the same day as his ACDT assessment interview shows the system working well and that AH was being reviewed by the mental health team and was properly assessed as not at risk of immediate self-harm.

66. At AH’s next review on 9 December, it was recorded that he had no active thoughts of suicide or self-harm and would come to the office if he did.

67. On 12 December 2023, AH was seen for an ACDT review where he avoided eye contact and reported struggling with his mental health. He reported that he sometimes had thoughts of self-harm but controlled himself. It was said that “Mental health are now adding him to the list” .

68. On 19 December 2023, the ACDT was closed. The review recorded again that he had no thoughts of self-harm and would come to the office if he did. No reasons for the closure were recorded. AH was monitored post-closure and recorded no longer to have any thoughts of suicide. Mr Fletcher submits that the ACDT process could be seen to be working – AH was protected from self-harm and did not relapse. The focus, however, was consistently on a specific incident or confined period of time and the lack of consideration of the whole inhibited assessment of risk and consideration of the requirement for a Rule 35 report.

69. On 20 December 2023, Dr Chinatu Akano (the IRC’s GP and medical practitioner) produced a Rule 35(3) report concluding that AH may have been a victim of torture. The report noted that AH was occasionally stressed and depressed, that he self-harmed twice while in prison, but currently denied any thoughts of self-harm or suicide and was on an ACDT. Doctor Akano concluded: “He may be the victim of torture. His scar is consistent with his account. I have no current concerns regarding his current mental or physical health in terms of acute deterioration or severity based on current presentation and available medical records… I believe his healthcare needs can be met in the IRC and there is no current indication/evidence which causes concern regarding the likely impact of ongoing detention”. As above, the defendant had not made available the reports of the two psychiatrists or AH’s history of self-harm and suicidal thoughts.

70. I return to this point in due course but Mr Fletcher submitted that, in not making a Rule 35(1) or (2) report, Dr Akano was exercising a proper professional judgment and that, for the claimant to assert that Dr Akano ought to have made a Rule 35(1) or (2) report, the claimant would have to show that the doctor was wrong in that judgment. The claimant could not do so, it was submitted, because the doctor was properly looking forward and not back at evidence from a previous asylum claim. I cannot accept that submission – the claimant does not need to assert that the decision was wrong on the basis of the information the doctor had before him but rather that it was an uninformed or only partially informed decision. Where mental health is concerned, an approach which looks solely at current presentation without any regard for past history or diagnoses cannot be justified. In particular in AH’s case, what had been reported before was intermittent thoughts of self-harm which was exactly what was still happening.

71. The Rule 35(3) report led to a detention review and, on 22 December 2023, the defendant responded to the Rule 35(3) report maintaining detention and the AAR level 2 risk assessment. The risk of absconding was considered to outweigh his risk.

72. On 10 January 2024, AH self-harmed cutting his neck with a razor blade. Although the defendant says that AH suffered no serious injuries, in his Use of Force Report, DCO Hounslow said that AH was pressing the blade to his neck and shouting that he would kill himself and the officer believed AH was about to seriously hurt himself, if not fatally, and that his actions were a threat to his own life.

73. The claimant submits that this act in itself brought AH within both Rules 35(1) and (2). However, no referral was made for a Rule 35(1) or (2) report. No psychiatric or psychological care was provided. AH was not placed on ACDT. No Part C was provided to the Defendant. The defendant received the Use of Force Report but did not invite the production of a Rule 35 report or query the absence of a report and there was no detention review.

74. AH’s patient record was completed by a paramedic. It records that the officer stated that AH had attempted to cut his neck due to ongoing stress. Minimal force was used to stop it and no injuries were observed.

75. Mr Fletcher then characterised this as an attempt to self-harm (rather than a suicide attempt) which was isolated and dealt with. AH did not raise any ongoing issue and what happened did not trigger a period of suicidal ideation. No medical practitioner considered it necessary to make a Rule 35(1) or (2) report so the attempt should not be overplayed. That submission seems to me to be self-fulfilling. Leaving aside the lack of evidence that any medical practitioner formed any view, the defendant’s position, in effect, is that if no Rule 35(1) or (2) report was prepared that is evidence that there was no reason for one to be prepared. On the facts of AH’s case, he had a history of self-harm, had thoughts of self-harm and, to the extent that these had been managed, that management had now failed. That calls for an explanation as to why no report was prepared rather than the assumption that it was not required in accordance with policy.

76. On 23 January 2024, AH instructed solicitors, Duncan Lewis, as his representatives. On 29 January 2024, Duncan Lewis raised urgent concerns about AH’s mental health and asked if a Rule 35(1) or (2) report would be forthcoming. No response was received.

77. On 27 January 2024, there was a further review of AH’s detention. The review made reference to the Rule 35(3) reports in 2018 and 2023 and the ACDTs opened in 2018 and 2023. There was no reference to the reports and diagnoses of Drs Burman-Roy or Galappathie or even to the incident on 10 January 2024. In the Authorising Officer’s Comments, it was noted that AH was assessed as AAR level 2 risk – “history of self harm currently on an Assessment Care in Detention and Teamwork Plan” – although that had been closed in December and not re-opened. His detention was continued principally because of his risk of absconding.

78. As the claimant submits, the deterioration of AH’s mental health was particularly apparent after this and between 1 and 5 February 2024. A detailed chronology of events in that period is set out in the Amended Statement of Facts and Grounds but a summary is sufficient.

79. On the evening of 1 February 2024, AH was subjected to a strip search which was filmed on body-worn cameras. AH became angry at this degrading treatment. In response, he was subject to further force by officers. He calmed down “and started crying” . One officer recorded that AH “is an Adult at Risk level 2 and I question his ability to understand direct orders or to that matter process them as his behaviour is that of an adolescent” . The UOF documents were reviewed by the Defendant on 2 February.

80. On the morning of 2 February 2024, AH made threats to self-harm with a pen. He was spoken to and calmed down. There was then an incident later that day in which two detainees climbed on to the anti-suicide netting. AH was found to be “erratic, unstable, shouting” and also tried to climb over the safety railings on to the netting. Force was used to prevent this. AH was removed from association under Rule 40 of the DCRs to the Care and Separation Unit (“CSU”) where he became tearful and was shaking. These matters form part of discrete grounds.

81. No ACDT was opened at that point. The defendant received a Part C, which stated only that AH had been placed on Rule 40 after attempting to jump onto the netting and officers had used force to prevent this, and the UOF report and CCTV footage.

82. Shortly after 9.00am on the morning of 3 February 2024, AH was seen in the CSU. He complained that he had not been helped on previous occasions. Later AH was observed crying and had cut his left wrist with a plastic knife, drawing blood. He was then placed on an ACDT and the Concern Form (timed shortly after 10.00am) noted that he was “visibly distressed” and had stated that he was stressed with his current situation. The “Risk” part of the form was completed only by reference to “Bail” and the observation that failure to be granted bail “could trigger”. The Immediate Action Plan included 5 observations an hour and being spoken to throughout the day.

83. The precise sequence of events on 3 February 2024 may not be material, other than to record keeping, and the timings above are consistent with those on the ACDT forms, but AH’s patient records shows that Dr Akano undertook his CSU rounds at 11.57am, AH was seen and no issue was raised. AH was seen by a nurse at 12.14pm and recorded as having no thoughts of self-harm. He was seen again by a nurse at 2.26pm following the incident of self-harm and was tearful and reported hearing voices. Other records show that AH was moved from CSU to E-wing at 11.45am.

84. As the claimant submits, no psychiatric or psychological assessment was carried out and still no consideration was given to the production of a Rule 35(1) or (2) report. A self-harm incident form was completed which stated that AH had “No history of self harm on CMS but had said that he has previously self-harmed”. That form was reviewed by the defendant who noted that there were “no issues to report” .

85. There was an ACDT assessment interview on 4 February which noted that AH was feeling better and had self-harmed because of the stress of his forthcoming bail hearing. The Records of Case Review included a statement that AH had no thought of self-harm and his observations were reduced to three per hour.

86. On the morning of 5 February 2024, AH was refused bail after a remote hearing. In refusing bail, the FTT relied particularly on AH’s history of absconding and ability to obtain false documents. AH was visibly upset and left the bail cell before the hearing had ended. AH returned to his wing “very upset” and sat on his bed “screaming/crying” . He was seen on the floor “shouting and crying and tensing his body” and “looked like he was going to be sick” . It was assumed that AH was “having a panic attack” .

87. There was a further ACDT review which recorded that AH was “making threats of ending it all”. AH was placed on constant supervision which indicates a serious risk of suicide or self-harm. At 14:00, constant supervision was reduced to hourly checks because constant supervision was considered counterproductive to AH’s welfare. At 17:11, he was seen by Daisy Hagan (Systems Support Access Role) who described him as an “active self-harm risk” . On 5 February 2024, Part Cs were sent to the defendant which noted that AH had been “placed on constant supervision after threats of “ending it all” after his bail was refused” and then returned to observations of one per hour and no longer had thoughts of self-harm.

88. There were further reviews on 10 February 2024 and 14 February 2024 at which AH said that the voices telling him to self-harm come and go and that he had no current thoughts of self-harm. The ACDT was closed and no concerns expressed in the post-closure monitoring.

89. Again it is submitted on behalf of the defendant that these events demonstrate the ACDT process working properly with careful consideration of AH’s condition and no evidence of any acute suicidal ideation being observed. What, in my judgment, can be seen, however, is that each incident of self-harm or threat of greater harm was looked at in isolation. If that risk was mitigated for the time being no further action was considered necessary or appropriate. I entirely agree with the claimant’s case that that cannot be the intent of the policy or the proper operation of the policy and its elements. In short, nothing – even constant supervision – caused anyone to seek a Rule 35(1) or (2) report and nothing triggered an ad hoc detention review.

90. On 9 February 2024, AH was assessed at Brook House by Dr Sara Alsaraf of Medical Justice. On the same day she sent a letter to inform Brook House healthcare staff of her “urgent clinical findings” which included: “In my opinion, he is vulnerable and it appears that his mental health has worsened within the immigration detention centre environment. He presents with untreated PTSD, depression and anxiety… Continued detention would put him at a high risk of further self-harm, including suicide.”

91. Dr Alsaraf recommended an appointment for the review of AH’s mental health needs and expressly recommended a rule 35(1) and 35(2) assessment to assess and communicate the risk of detention to the Home Office. On 13 February 2024, Duncan Lewis sent Dr Alsaraf’s letter to the defendant. There was still no report under Rule 35(1) or Rule 35(2). For completeness, on 11 July 2024, after AH’s release from detention on 11 March 2024, Dr Alsaraf provided a formal medico-legal report on AH’s mental health.

92. The defendant says that the letter of Dr Alsaraf should not be given disproportionate weight. The defendant says that the letter was relied on in the context of fitness to fly and therefore had no relevance to any other assessment or policy. It did not assess AH to be at AAR level 3 risk and deferred to further assessment. It was also submitted that it made little difference as it would not have been considered until the detention review at the end of February when release was recommended in any event and on different grounds. To my mind that misses the key relevance of the report which was the view of a medical practitioner that a Rule 35(1) and/or (2) report ought to be produced. That was a view that no medical practitioner appeared to have formed before despite all the indicators that such reports were required under Rule 35.

93. Further, as the claimant submits, the letter was not considered at the next ACDT review on 10 February and the ACDT was closed on 14 February. Had the letter or the ACDT process triggered a Rule 35(1) report that would have led to a detention review. In the event there was no review until 29 February 2024. IS's immigration history

94. The facts of IS’s case were addressed less extensively given that the defendant had conceded IS’s claim on all grounds which relate to his own treatment. They remain relevant to the systems ground and, for reasons related to that ground, the operation of the ACDT process during IS’s detention at Brook House is particularly relevant.

95. IS is a Bangladeshi national who came to the UK lawfully in 2013. As a child he was repeatedly subjected to torture and sexual abuse in Bangladesh. He has suffered from PTSD and other serious mental health problems for many years.

96. He was convicted on a count of sexual assault (intentional touching) in September 2015 and was sentenced to an 18-month Detention and Training Order. In April 2016, the defendant issued a notice of intention to deport him. IS resisted that resulting in a claim before the FTT which resulted in a judgment on 22 August 2024. The judgment sets out the lengthy sequence of events which it is not necessary to repeat. The FTT allowed IS’s asylum appeal and the Home Office sought permission to appeal to the Upper Tribunal.

97. Following the conclusion of the DTO, the defendant detained IS under immigration powers and he remained in detention from 28 July 2016 to 30 November 2018. He spent 11 months in detention at Brook House and was on constant supervision for 75 days. It is submitted, with justification, that this showed IS’s mental ill health to have been very poor for a long period with a high risk of suicide. Despite this, no Rule 35(1) or r35(2) report was ever produced and the only Rule 35 report was a Rule 35(3) report in November 2017.

98. In 2018 IS brought a judicial review claim challenging his then still ongoing immigration detention. By way of a judgment handed down on 15 October 2019 [2019] EWHC 2700 (Admin) Jeremy Johnson QC (then sitting as a deputy High Court judge) found that IS’s detention between June and November 2018 had been unlawful (on the basis that his vulnerability was so high that his further detention could not be justified) and that the 75 days of constant supervision was specifically unlawful.

99. The judge concluded that a Rule 35(2) report ought to have been completed and, although he did not need to decide the point observed that there was a considerable body of evidence that the Rule 35 process did not work properly: “189. In the present case the Claimant argues that it is extraordinary that no r35(2) was ever done. I agree that such a report ought to have been completed. On 9 October 2018 Dr Hiller provided information to the effect that the Claimant was a suicide risk and that a r35(2) report was required. There was evidence at many earlier points that the Claimant was a suicide risk. The medical practitioner could not reasonably have discounted that risk, and there is no evidence that he did so. There was therefore a statutory obligation to complete a report. The reason it was not done was because of confusion. It was thought, wrongly, that a report had already been submitted. This was because it was not apparently appreciated that the earlier report had concerned evidence of torture rather than risk of suicide, and had been submitted under r 35(3) rather than r35(2). ….

190. So, in this case, the r35 process did not work properly. There is a considerable body of evidence that, more generally, the r35 process is not working sufficiently.”

100. The judge then referred firstly to the report of Stephen Shaw in 2016 that noted that only 14 r35(2) had been submitted in the period Q3 2014 - Q1 2015, concluded that r35 was not doing what had been intended and recommended that the Home Office immediately consider an alternative. He referred also to the report of HM Inspector of Prisons of an unannounced inspection of Brook House in May and June 2019. The report was published on the first day of the Inquiry in September 2019. It was reported that in the previous 6 months there had been no Rule 35(2) reports despite 40% of detainees surveyed saying that they had felt suicidal. It recommended that the reports should be submitted on any detainee suspected of suicidal ideation.

101. He the set out the evidence as to numbers of ACDTs and Rule 35(2) reports: “194. The Claimant’s solicitors have complied statistics secured from requests of the Defendant made under the Freedom of Information Act 2000 . These show that in the final quarter of 2017 528 people were on ACDTs. Yet in the whole of 2017 only 10 r35(2) reports were completed. A report of Her Majesty’s Chief Inspector of Prisons shows that in Colnbrook IRC in the final quarter of 2017 there were 154 detainees on constant supervision because of a risk of self-harm/suicide. Only 10 were the subject of r35(2) reports.”

102. The court declined to find that Rule 35 was itself ultra vires or irrational but was patently critical of the apparent operation of Rule 35 and the discrepancy in numbers of ACDTs and r35(2) reports: “203. The Claimant advances a powerful case that the current system is simply not working. The evidence strongly suggests that there are many people in immigration detention who are suspected of having suicidal intentions. It does not necessarily follow from the fact that a detainee is placed on the ACDT regime that a r35(2) report should be sent. A non-medical member of staff may open an ACDT in circumstances where the medical practitioner might be entirely satisfied that there is no question of suicidal intention. So one would not necessarily expect a precise match between the number of ACDT forms and the number of r35(2) reports. However, absent some very clear explanation, one would ordinarily expect a significant proportion of those who are subject to the ACDT regime to also be subject to a r35(2) reports. The discrepancies in the figures are, as Mr Armstrong submits, striking.”

103. In these proceedings, Mr Armstrong made clear that he adopts and accepts paragraph 203 – the court should not conclude simply from the fact that someone is on an ACDT that there should be a Rule 35(2) report but he submits that if someone is on constant supervision that should result in a Rule 35(2) report because of the provision of the DSO as to when someone should be on constant supervision.

104. From 28 January 2022 onwards IS was remanded in custody in connection with a drugs offence for which he was subsequently convicted in June 2023. Within days of arriving in custody IS was placed on the ACCT system for prisoners assessed as being at risk of suicide or self-harm. IS self-harmed frequently while in prison. When IS was due for release on licence, he was again detained under immigration powers at Brook House.

105. In his first 10 days in detention, IS self-harmed or attempted to self-harm three times (on 4 August, 5 August and 8 August 2023) and expressed intentions to self-harm and suicidal ideations.

106. The ACDT was opened on 4 August 2023. The Concern Form stated that it was opened due to risk of self harm and risk of suicide. It was recorded that IS said he was seeking help for his mental health but not getting it. He was worried about being in the detention centre and his mental health. He said he suffered from PTSD and other issues and he was crying while speaking to the officers.

107. The immediate action plan part of the form was completed. Under “other immediate interventions” it was recorded that he had a blade in his mouth. He was initially on one observation every hour.

108. Also on 4 August, a Part C form was completed recording that force had been used to prevent IS from self-harming with a razor blade.

109. In the ACDT form, much of the Care Plan part was left blank in particular the section on Risks, Triggers and Protective Factors. The form for the supervisor daily check was completed on 5 August 2023 and noted that this section needed to be completed but it remained blank. There was an emergency case review on 5 August 2023, following an act of self-harm (superficial cuts to the left wrist) and IS was put on constant supervision. It was also recorded that IS had shown documents relating to his mental health and his suitability for detention. A Part C was again completed noting the self-harm and that IS had been put on constant supervision. This information was, therefore, communicated to the Home Office.

110. Despite the definition of constant supervision in the DSO and the identification of serious risk of self-harm or suicide, no Rule 35(2) report was sought whether by staff at Brook House or at the behest of the Home Office. An Act of Self-Harm Review Form signed by a Home Office representative on 6 August 2023, noted that IS had been removed from constant watch and that no concerns were identified.

111. The ACDT form for the emergency review on 5 August 2023 included a question “Does the multi-disciplinary team think that this person is currently at high risk of suicide or serious self-harm”. If the answer to that question was yes, the multi-disciplinary team was asked whether the case should be escalated by the arrangement of a Rule 35 appointment with the duty GP. On the form itself, the response was: “Due to the act of self harm at present there could be further acts of self-harm and due to his history” The response did not, therefore, engage with or answer the question.

112. Mr Armstrong submits rightly that the test under Rule 35 is not “high risk”, that Rule 35 is expressed in mandatory and not discretionary terms, and that, in any event, it is difficult to see how IS could not be thought to be at high risk of suicide or self-harm if he had been placed under constant supervision.

113. The claimant’s submission also identified that the defendant almost never attended ACDT reviews. On the two occasions when there was attendance, no contribution was recorded. On 5 August 2023 the defendant attended by phone. IS was already on constant supervision but no concern was raised about a Rule 35(2) report.

114. On 6 August 2023, observations were reduced to one observation every three hours and at irregular times. It had been suggested that IS might be “playing a game” geared towards his observations which was why they were made irregular despite the provisions of the DSO that they should always be irregular.

115. IS remained on this number of observations (apart from on 8 August 2023 when he was returned to one every hour) until 24 August 2023. The frequency then reduced until IS was recorded as refusing the observations and on 6 September 2023 the ACDT was closed.

116. On 8 August, IS self-harmed again making superficial cuts on his chest. He told a DOM what he had done leading to an emergency review which was attended by two senior DCOs and a nurse, although the report implies that the nurse’s attendance was to treat the wound. In short, IS said that he was reacting to an adverse comment that suggested he was playing games and not taking his mental health seriously. He cried during the review. The question as to high risk of suicide or self-harm was answered “yes” but the question as to referral to the GP for a Rule 35 report was answered “no”. Having regard to Rule 35, that makes no sense and illustrates the disconnect in the system.

117. On 9 August 2023, there was a further review. Although IS denied this, it was reported and recorded that he had come to the review with a blade in his mouth. IS reported feeling low, hearing voices and wanting to self-harm – it was his coping mechanism and he could not stop it. He discussed previous treatment for his mental health. He asked about a Rule 35 report but “due to having a previous Rule 35 he would not be able to have another one”. The questions for the multi-disciplinary team were answered “no”.

118. The statement that IS could not have another Rule 35 report was plainly wrong and, Mr Armstrong submits, shows a misunderstanding that only Rule 35(3) reports were in play and that there was no consideration or understanding of Rule 35(1) and (2) reports.

119. Thereafter, IS was assessed by Dr Galappathie who wrote to the IRC Healthcare Manager on 22 August 2023 expressing serious concerns and describing IS as at risk of death. His report, in similar vein, was produced on 10 October 2023.

120. On 17 October 2023 a Rule 35(3) report was then obtained. The report stated that IS had not previously disclosed evidence of torture but consented to this information being passed to the Home Office. He gave an account of being tortured as a child. In his assessment, the GP said that IS gave a detailed, consistent account of his experiences, that the incidents appeared to fall within the definition of torture and that he had significant scarring consistent with the mechanism of injury. The doctor noted that IS had evidence of his mental health and physical assessments. Then: “His mental health is NOT stable in this environment. He has previously tried to commit suicide He has previously self-harmed. I DO have concerns in terms of acute deterioration or severity in relation to his mental and physical health on the basis of his available records and current presentation of PTSD ADHD depression and EUPD. I would recommend he be released.”

121. Despite this clear conclusion, the Rule 35(3) report, focussed on previous torture, did not cause the medical practitioner to make at the least a Rule 35(1) report on IS as a person whose health was likely to be injuriously affected by continued detention. This does not follow DSO 09/2016 which, as the claimant submitted is mandatory and states, at the outset, that where an IRC doctor considers that one or more of the criteria in Rule 35 are met they must complete a report using the relevant template and that “In any case where a detainee falls into more than one of the reporting categories a separate report must be made in respect of the individual categories concerned.”

122. The report was passed to the Home Office (Rule 35 Team) and by letter dated 3 November 2023, it was decided that the immigration factors outweighed IS’s vulnerabilities and that he should remain in detention. The letter referred to the Rule 35(3) report on the basis of which it was now said that IS was assessed as level 3 risk within the AAR Policy. No steps were taken to obtain a Rule 35(1) or 35(2) report.

123. The DSO requires the Home Office responsible officer to seek further information if the report does not have sufficient content to understand the medical condition and enable meaningful consideration to be given. Whilst the DSO does not expressly require the Home Office to obtain the relevant report from the IRC doctor if that report is absent, that would at least arguably fall within what is required and certainly would be required to give meaningful consideration.

124. On 14 November 2023 IS issued his judicial review claim and sought an order for release by way of interim relief. Following two contested hearings before Lang J, the court ordered IS’s release by 10 January 2024. Ground 1

125. As AH was a person subject to a deportation order, the defendant justified his detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 as amended. That sub-paragraph is in the following terms: “(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained … shall continue to be detained) unless he is released on immigration bail under Schedule 10 to the Immigration Act 2016 . (3A) A person liable to be detained under sub-paragraph (1), (2) or (3) may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the deportation order to be made, or the removal to be carried out. (3B) Sub-paragraphs (1) to (3) apply regardless of whether there is anything that for the time being prevents the deportation order from being made or the removal from being carried out. … (3D) Sub-paragraph (3E) applies if, while a person is detained under sub-paragraph (1), (2) or (3), the Secretary of State no longer considers that the deportation order will be made or the removal will be carried out within a reasonable period of time. (3E) The person may be detailed under that sub-paragraph for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate.”

126. The intention of these amendments was to overturn the principle in R(A) v SSHD [2007] EWCA Civ 804 that it was for the court to decide, for the purposes of the principles in Hardial Singh whether there was a reasonable prospect of removal within a reasonable time.

127. No authority was cited on the application of these paragraphs but it was not in issue that the defendant’s decision could be challenged on rationality/ Wednesbury grounds. Mr Armstrong argued for a higher level of scrutiny because Article 5 rights were engaged but that was not necessary for this case on ground 1 and I do not address that further.

128. The defendant’s position is that the decision to detain could not be regarded as irrational on the basis of the information available to the Gatekeeper. I deal with this in the context of ground 2. Ground 2

129. Underlying AH’s case on ground 2 is that a failure to comply with a published policy is a public law error which, if relevant to the decision making, renders the decision unlawful ( R(Lumba) v SSHD [2012] 1 AC 245 at [68]; R(Kambadzi) v SSHD [2011] UKSC 23 ).

130. As indicated in the introduction, in this case the material policy is principally the AAR Policy. The AAR Policy expressly requires the defendant, prior to each decision to detain, to consider whether an individual is an adult at risk and whether they should be detained. As part of that assessment, the policy, at the time of AH’s detention, required the defendant to consider “the most up-to-date information”. The policy requires an assessment at each detention review, ongoing assessment and formal review of the case if new factors appear.

131. Mr Armstrong KC, therefore, submits that the AAR Policy has inherent within it a duty of inquiry not least as to the detainee’s material history. R (O) v Secretary of State for the Home Department [2016] UKSC 19 was concerned with the published policy on detention and release which (at paragraph 55.10) stated that those suffering with serious mental illness (which cannot satisfactorily be managed in detention) were normally considered suitable for detention only in very exceptional circumstances. The court held (at [31] – [33]) that that policy mandated a “practical enquiry”. The details of such an inquiry were specific to the particular policy but indicative of a detailed inquiry. The concept is of more general application and where the mental health of a detainee is concerned it cannot be the case that the intention of the policy is to look at a series of snapshots without context and background. As I have already indicated, I accept that submission.

132. So far as the most up to date information is concerned, Mr Armstrong submits that the primary mechanism by which the defendant is made aware of new information is the Rule 35 report. If the reports required under that rule are not obtained, the most up-to-date information stagnates and becomes potentially meaningless if it is, in fact, out-dated information or not the material information.

133. Mr Armstrong submits that the defendant failed repeatedly to comply with the AAR Policy. At the start of the relevant period of detention, the assessment that was undertaken was taken without the benefit of AH’s mental health history and particularly the reports of Dr Burman-Roy and Dr Galappathie. It was submitted that the reports were plainly capable of amounting to level 3 evidence on their own or were capable of triggering a further inquiry that might have led to level 3 evidence. It is not necessary for AH to establish that these reports were right in the sense that they established that detention was injurious to his mental health but rather that the failure to take them into account when they were plainly relevant material was in breach of policy. What is absent from the assessment of AH is any consideration of his previous diagnoses and whether anything has changed. I accept that submission and as I have said above any question mark over Dr Galappathie’s evidence is not to the point.

134. The defendant’s position is, in effect, that “the most up to date information” could be lawfully considered without any regard to past history. However, no proper evaluation could be undertaken without that consideration. The consideration of AH’s detention without that evaluation meant that no proper balancing of risk against other factors could be carried out.

135. The defendant argues that there was no public law error in respect of the IS.91 form (which recorded no mental health issues) or the Detention Gatekeeper’s decision (ground 1). The first key element of this argument is that AH was rightly assessed as an adult at risk level 2. Inherent in the argument is that the only material evidence was the previous Rule 35(3) report and that the balance of AH’s history including the reports of Drs. Burman-Roy and Galappathie were not material. The basis for the latter submission, as I have indicated, is that the history of self-harm was of relatively historic, minor, isolated instances; that the reports did not opine that AH would never be suitable for detention and that they too represented a past position and not any current assessment; and that, in fact, his mental health issues appeared to have been successfully managed.

136. If the only matter was the history of minor self-harm, the defendant’s position would be sustainable but I cannot see that it is in respect of the medical reports. These both identified and diagnosed serious mental health issues. Although they contemplated treatment and did not, as the defendant says, offer the opinion that these issues could never be managed such that AH could never be suitable for detention, they were patently a material part of his history and AAR level 3 evidence. The defendant’s submission amounts to one that because there was no up-to-date report, the earlier reports could simply be discounted. The evidence shows that they were not discounted on rational grounds; they were simply not considered at all; and it cannot be inferred that if they had been considered as part of the overall history that the same conclusion as to detention would have been reached. Although the Detention Gatekeeper ordered an up-to date report that was not with knowledge of or in response to the previous reports.

137. The defendant submits that the decision to detain AH was one made on a lawful and rational assessment of the risks and that the risks of absconding and further offences weighed against the presumption in favour of release but that decision was by definition taken on the basis of incomplete material information and cannot have involved a proper balancing exercise.

138. Mr Armstrong then submits that this public law error had a cascading effect during AH’s detention at Brook House. Not only did the IS.91RA fail to identify any mental health issues or relevant risk but the subsequent assessments of Drs Afzal and Akano were made without knowing anything of AH’s history and were merely snapshots.

139. The defendant’s position is that at AH’s detention, and subsequent reviews, his mental health was considered. On the basis of the documents, that is indeed seen to be the case. Contrary to AH’s argument, the defendant contends that neither the Rule 35 nor the AAR Policy meant that the defendant was required to consider any particular material. The claimant, the defendant argues, places undue weight on the reports of Drs Burman-Roy and Galappathie and, as set out above, argues that these reports were historic, the mental health issues with which AH presented at the time had been managed, and neither report expressed the opinion that AH would never be suitable for detention.

140. The defendant contends that, in fact, the most up-to-date medical evidence was considered in accordance with policy. AH was screened within 24 hours of detention and the subject of detention reviews. He was the subject of a Rule 35(3) report (20 December 2023) which indicated no current concerns. He was the subject of an ACDT which was closed after the review on 27 January. He was seen by two psychiatrists, Dr Akano and Dr Alsaraf. Neither said he was unsuitable for detention or drafted a Rule 35(1) or 35(2) report. AH was not, the defendant therefore says, wrongly categorised as AAR level 2.

141. The difficulty with the defendant’s position is that the failure to take into consideration AH’s mental health history, and in particular the reports of Drs Burman-Roy and Galappathie meant that there was no reasoned decision taken at any time that AH no longer suffered from the diagnosed conditions or that his issues had been managed or that he was now suitable for detention. As I have said already, the defendant relied on the argument that neither Dr Burman-Roy nor Galappathie had said that AH could not be treated and/or would never be fit for detention but any evidence of treatment and any analysis of what had changed that rendered him fit for detention is wholly lacking.

142. The absence of consideration of AH’s mental health history remained even when his condition worsened in January and February 2024 and after the report of Dr Alsaraf. As I have said, nothing that had happened prompted a formal review in accordance with the AAR Policy or triggered a Rule 35(1) or (2) report. Without such action, the most up-to-date information (if the earlier reports and Dr Alsaraf’s letter are discounted) would never include professional opinion that would raise AH to a level 3 risk. If the earlier reports are not discounted, they remained the most up-to-date information beyond the inference that AH’s condition had been “managed” in detention which was not supported by any analysis which took into account his prior history.

143. The defendant argues that there is no part of Rule 35 that requires the defendant to procure a Rule 35 report. But it seems to me that the Claimant must be right that defendant has a duty to seek further information at the least if matters arise or events happen that give rise to grounds to review the propriety of detention. The AAR Policy recognises that the nature and severity of a condition can change over time.

144. Further, the defendant argues that it was sufficient to comply with the published policy that AH’s detention was regularly reviewed and implies that Dr Alsaraf’s opinion was discounted for good reason. For all the reasons I have already indicated, the regular review of AH’s detention was necessarily flawed because relevant information was either not considered or not obtained. That relevant information included the views of Dr Alsaraf.

145. I am, therefore, satisfied that AH’s detention was unlawful on the basis of the defendant’s failure to comply with the AAR Policy and I would make the declarations sought under grounds 1 and 2. Ground 3

146. As AH submits, if his detention was unlawful so was his removal from association. However, ground 3 is also relied on as a free-standing ground on the basis that the removal from association on 2 February 2024 was unlawful.

147. Rule 40 of the Detention Centre Rules is in the following terms: “(1) Where it appears necessary in the interest of security or safety that a detained person should not associate with other detained person, either generally or for particular purposes, the Secretary of State (in the case of a contracted-our detention centre) or the manager (in the case of a directly managed centre) may arrange for the detailed person’s removal from association accordingly. (2) In cases of urgency, the manager of a contracted out detention centre may assume the responsibility of the Secretary of State under paragraph (1) but shall notify the Secretary of State as soon as possible after making the necessary arrangements. (3) A detained person shall not be removed under this rule for a period of more than 24 hours without the authority of the Secretary of State…”

148. The defendant’s policy regarding removal from association is set out in the Detention Services Order 02/2017 (Removal from Association (Detention Centre Rule 40) and Temporary Confinement (Detention Centre Rule 42) and include the following: “28. Rules 40 and 42 must be used only as a last resort, when all other options have been exhausted or are assessed as likely to fail or to be insufficient as an effective means to address the risk considered to be presented by the detained individual. The decision to use either Rule must have a clear and rational basis. …

29. Neither measure under Rule 40 or Rule 42 can be used as a punishment as stated expressly within the Rules …

31. Rule 40 and 42 should not be used as a normal means to manage detained individuals with serious psychiatric illness or presenting with mental health problems. These Rules should be used in relation to detained individuals with mental health problems only where justified on the basis of the risk presented in accordance with the terms of the relevant Rules. However, special care and caution is needed in relation to decisions to use Rule 40 and 42 for such vulnerable individuals. Specific account must be taken of any adverse effect that use of Rule 40 or 42 may have on the individuals in light of their circumstances and steps taken to mitigate any adverse effects. In all the circumstances applicable to these cases the use of these Rules will be exceptional in practice. Particular case is needed to ensure that the general requirements that use of the Rules is for the shortest time possible and only as a last resort are met in these cases. …

40. In no circumstances must an initial authorisation be given for a period beyond 24 hours .

41. In cases of urgency, and if the circumstances are such that it is impracticable to seek the authority required in paragraph 40 in advance, the centre/duty manager (in a contracted out or HMPPS run centre) can make the emergency authorisation so that the authority is considered to begin at that point. In such circumstances, the DES manager (or the DES on-call manager if out of hours) must be notified immediately. [A footnote to this paragraph gives an example of urgency as “to protect life and/or security of the centre, for example, a fight or an assault on another detained individual or member of staff.” ]

61. The notification for the detained individual of the reason(s) for their being located in Rule 40 …. accommodation must be provided in writing and explained orally …. The individual must be provided with sufficient information about the reason(s), and the evidence relied on, for seeking authority to remove them from normal association to enable them to understand the decisions … Recording point: Reason for relocation to be recorded Annex B boxes 9-22 and notified to the detainee within 2 hours of being relocated. …..”

149. The claimant’s case as to unlawfulness relies on breach of the DCRs and has 4 elements. I address them and the defendant’s responses in the order put forward by the claimant.

150. Firstly, the removal was not authorised by a person empowered to do so. The decision was taken by DOM Carlo Atzeni.

151. The circumstances of this removal are set out above and followed from AH’s attempt to get on to the safety netting. He was restrained and taken away from the netting. Three officers reported that AH was calm and compliant by the time he was walked off the wing.

152. It follows, AH contends, that there was no urgent need to remove him from association and that authorisation could have been sought from the defendant in advance in accordance with DCR Rule 40(1). That is supported by the fact that the Rule 40 form records that Serco were able to notify the defendant’s on-site manager by telephone only 7 minutes after AH was removed from association. The claimant therefore contends that the removal from association was not a matter of urgency such that Rule 40(2) applied and could only be authorised by the defendant under rule 40(1).

153. Mr Armstrong submitted that this point mattered because the Brook House Inquiry identified a trend to routinely use urgency powers without Home Office authorisation even when there was sufficient time to seek it. In this case, however, the court is concerned not with any discernible trend but with the facts of this particular case and I have proceeded on that basis.

154. The defendant’s case is that this fails to recognise the reality of the events that occurred. It is obvious that AH’s actions created a situation in which he potentially put himself at risk and may have encouraged others to do so and that steps had to be taken to prevent this in an instant. That is the reality of the events.

155. On the Rule 40 form the explanation given for removal from association was: “A first response was called in Dove wing at lock-up time as two residents climbed onto the netting on the first floor in protest. Resident [AH] was also trying to climb on it but was stopped by officers and restrained with hand cuffs. [AH] was then placed on DC rule 40 at 11.40 after receiving a level A search.”

156. In the Use of Force Reports, in summary, the officers who restrained AH and escorted him to the CSU, variously described him as becoming calm and becoming more compliant after he was restrained and handcuffed but en route to the CSU becoming upset.

157. AH’s removal from association was the subject of a complaint to the Home Office Professional Standards Unit (“PSU”) which reported on 9 May 2024. I do not propose to quote the PSU report at length but the defendant drew attention to paragraphs 6.3.6, 6.4.3 and 6.4.6 which recorded the reasoning of the officers concerned. Paragraph 6.3.6 stated: “Officer B stated that Rule 40 was the normal outcome if anyone climbed onto the netting. The alternative was to leave residents on the wing and risk them repeatedly climbing on the netting. Climbing on the netting caused disruption be cause other residents had to be removed from the wing or put back in their rooms to prevent others from joining in. Officer B stated Rule 40 was not used as a blanket punishment. Officers weighed the risks of residents climbing on the netting and were mindful of repeated attempts to do so. …” Other officers referred to the disruption, the risk of harm to AH and others, and their impact on their ability to deescalate the situation.

158. The PSU report concluded at paragraph 7.6.2: “However, in consideration of all the available evidence and on the balance of probabilities [AH’s] detention in the CSU was necessary due to the circumstances of him attempting to climb onto the safety netting and then resisting attempts to restrain him.”

159. I have some concern about the reported view of the officer that Rule 40 was the normal response to someone climbing, or in AH’s case attempting to climb, onto the netting which implies no consideration of individual circumstances. However, in this case, AH’s actions were potentially worsening the situation with the risk of harm to himself and others. Urgent steps needed to be taken, removal was necessary and proportionate and it was impracticable to seek authorisation in advance in what was a fast moving situation. The claimant maintains that there was no such urgency when AH was calm and compliant by the time of removal but there must have remained a risk that he would not remain so if the situation was not brought under control and while others remained on the netting.

160. However, even given the urgency, the claimant submitted, in the alternative, that DOM Atzeni was not empowered to authorise the removal because he was not the “manager” of the detention centre and there was no lawful delegation of the manager’s powers. It is not in issue that the DOM was not the manager (as defined in section 148 of the Immigration and Asylum Act 1999 ).

161. Rule 65 of the DCRs provides that: “ The manager of a detention centre may, with the leave of the Secretary of State, delegate any of the powers and duties under these Rules to another officer of that detention centre.” The claimant says, rightly, that there is no evidence of any such delegation and certainly not with the leave of the Secretary of State.

162. The facts are close to those in R(Muasa) v Secretary of State for the Home Department [2017] EWHC 2267 (Admin) at [69] – [71] which concerned authorisation under Rule 40(3) from the Secretary of State to remove from association for more than 24 hours. No document providing signed authorisation was produced and the form that could have been expected to be signed was not. Holman J declined to assume that the authorisation had been given or to regard the absence of the authorisation as merely procedural or technical: “The requirement of authorisation by the Secretary of State independent of the manager or management of the centre is clearly a fundamental safeguard under rule 40.”

163. The defendant says that the version of DSO 02/2017 at the time did not require any written record of delegation to be kept and that delegation of powers was managed by centre managers to appropriate senior and/or experienced staff. That was reflected in the standard operating procedures.

164. The SOP stated: “Home Office on-call Manager: Only in a case of urgency may the Detention Operations Manager assume the role of the secretary of state (DC Rule 40). Verbal or written approval must be received from the Duty Home Office on-call Manager and this should be recorded on the Annex B (sections 16-22) included …” This procedure was followed in that the removal was approved by the DOM and Home Office approval received verbally from T Shave at 11.47am and recorded in Annex B.

165. In my view, the SOP simply reflects the wording of DCR Rule 40(2). It does not have any regard to Rule 65 and it implies, contrary to Rule 65, that all that is required is ex post facto approval of a particular decision. The defendant’s case that this was the procedure followed reinforces the claimant’s case that there was no proper delegation with leave of the Secretary of State. There is further evidence that the relevant authorisation was sought in March 2024 by Steve Hewer, Centre Manager for Gatwick IRCs, for persons with specified job titles to be permitted to have delegated responsibility for him under Rule 40 – there was no evidence of an earlier request.

166. Accordingly, given the absence of the relevant authorisation, I would accept the claimant’s submission that AH’s removal was unlawful.

167. The claimant’s second argument is that AH’s removal did not rationally “appear necessary in the interests of security or safety” (within the meaning of Rule 40(1)). The claimant emphasises that the trigger is necessity (see Muasa at [27]). The claimant argues firstly, that, taking account of the factual background set out above, there was no basis on which the removal could have appeared necessary in the interests of security or safety and the Rule 40 form does not identify any such basis. The evidence is that AH was not the instigator and when removed from the wing was calm and compliant.

168. Further, AH relies on the fact that paragraph 61 requires the individual to be given reasons. The subsequent PSU report accepted that a more comprehensive justification could have been provided but asserted that other alternatives were considered “albeit without sufficient clarification as to why they were not appropriate in this instance.”

169. It does not seem to me that this sub-ground adds to the argument in respect of urgency and the fact that clearer or more comprehensive reasons could have been given does not demonstrate that there was no rational basis for a decision that removal was necessary for security or safety or that it was not in all the circumstances.

170. Thirdly, it is submitted that AH’s removal from association was effected in breach of policy. This additional ground of unlawfulness turns on paragraph 31 of DSO 02/2017. In short, there is no evidence that before the removal was authorised, any attention was given at all to the justification of removal of AH as a person presenting with mental health problems and certainly no special care and caution was exercised. There was no consideration of AH’s mental health despite ample evidence of his mental health issues (even without any Rule 35 report) and no consideration of potential impact on his mental health of his removal.

171. Mr Armstrong submitted that paragraph 31 was intended to secure compliance with the defendant’s duties under the Equality Act 2010 , in that AH’s mental health issues rendered him disabled within the meaning of the Act . In consequence, the use of Rule 40 without consideration of AH’s mental health would amount to unfavourable treatment and it would be incumbent on the defendant to justify that treatment as proportionate in accordance with s. 15(1)(b). That is the underlying purpose of paragraph 31. The failure to comply with paragraph 31 is, therefore, a breach of Article 8 rights.

172. This sub-ground points to a potential tension between Rule 40(2) and paragraph 31. Put simply, it is easy to see how consideration under paragraph 31 could and should be given before a removal from association under Rule 40(1) but less easy to see, in practice, how paragraph 31 can be given effect where the removal is urgent and in the interests of safety and security. It cannot be the case that any person with any history of mental health issues would be “immune”, as the defendant put it, from urgent removal from association. In this case, if anything, AH’s history of mental health issues including self-harm would have made it all the more imperative to manage his risk of harm and remove him from a potentially harmful situation. In other words, even if there was no specific consideration of AH’s mental health, I cannot see that it would have made any difference to the decision taken.

173. Lastly the claimant relies on the failure to provide written reasons. In addition to the complaint about adequacy of reasons, AH contends that reasons were not provided within 2 hours as required under Rule 40(6) and paragraph 61. DOM Atzeni said that they were provided at 1.10pm but the claimant submits that that cannot be right because the form was not opened until 1.30pm. The defendant suggests in response that the reasons could have been given orally at 1.10pm and before the form was opened and, therefore, within the 2 hour window. There is no evidence to that effect and the only proper inference from the available evidence is that there was a breach, albeit a technical one.

174. In summary, therefore, I accept that AH’s removal from association was unlawful because his detention was unlawful. Even if his detention was lawful, there were breaches of policy and the DCRs in respect of his removal in terms of authorisation and reporting but not the necessity of removal. Ground 4

175. Ground 4 concerns a breach of the Detention Centre Rules Rule 41 also on 2 February 2024. That Rule provides: “41. —(1) A detainee custody officer dealing with a detained person shall not use force unnecessarily and, when the application of force to a detained person is necessary, no more force than is necessary shall be used. (2) No officer shall act deliberately in a manner calculated to provoke a detained person. (3) Particulars of every case of use of force shall be recorded by the manager in a manner to be directed by the Secretary of State, and shall be reported to the Secretary of State.”

176. It is again submitted that if the detention was unlawful then so was the use of force on any occasion including on 10 January, 1 February, 2 February, 5 February and 17 February. Similarly, if the removal from association was unlawful, then so was the use of force in that context. But further or in the alternative, the use of excessive and unnecessary force on 2 February was a distinct aspect of unlawfulness. In light of my decision as to the lawfulness of AH’s detention, it follows that the use of force was also unlawful. I deal below with the further or alternative case on this specific ground.

177. AH’s case is that officers used excessive and unnecessary force when taking him to the CSU. His evidence is that, although he was not resisting, officers put his hands on his neck so that he felt as if he could not breathe and then handcuffed him behind his back, which hurt him. There is a conflict of evidence on what happened in so far as in their use of force reports, the officers refer to trying to put AH’s head in the safest position and putting a hand on the front of his shoulder.

178. Section 154(1) Immigration and Asylum Act 1999 requires a detainee custody officer to be certified by the defendant to perform custodial functions. DSO 02/2018 (Detainee Custody Officer and Detainee Custody Officer (Escort) Certification) provides for a certification process for detainee custody officers and that includes a requirement that the person has a DBS certificate. It is expressly provided at paragraph 31 that if the DBS certification (amongst other things) lapses, then so does the DCO certificate and the officer will no longer be authorised to work as a DCO or have detainee contact.

179. Although in written submissions this case was advanced principally in respect of ground 3, part of the defendant’s case was that the claimant had not exhausted alternative remedies. The claim of breach of Rule 40 was referred to the Home Office PSU and, by a decision made on 9 May 2024, found to be unsubstantiated. The claimant complained to the PPO in August 2024 but asked that the complaint be stayed pending an ongoing judicial review in another matter. It seems to me right, therefore, that at the time of the hearing before me, and despite permission having been given, the claimant continued to have an alternative remedy in respect of the use of force.

180. In any case, the thrust of the defendant’s argument seems to me to be that, in the circumstances of the events that were happening, fine distinctions about amounts of force cannot be made and it cannot be said that the particular acts were unlawful. There is merit in AH’s case that, as he became calm and compliant, there was no need for any use of force but the evidence does not extend to how material these steps were in bringing AH to this point or ensuring that he remained in control. I do not see how this court could conclude that the use of this particular force, was in itself unnecessary and excessive and, if this could be relied on as a ground for judicial review, I would not, on this specific basis, find the defendant’s actions to be unlawful.

181. The position is, however, different on the certification issue and the defendant did not, as I understand it, rely, in this respect, on the argument that the claimant had an alternative remedy.

182. The defendant accepts that the officer concerned, DOM Stringer, did not have the relevant DBS certificate, his previous certification having expired in July 2023. The defendant also accepts that the Home Office oversight mechanism had failed.

183. The fact that the officer did not, therefore, have the relevant DCO certification which had lapsed with the DBS certificate necessarily means that the use of force by this officer was unlawful even if it was otherwise necessary and proportionate. However, there were other officers involved and there is no issue that they did have the proper certification. The involvement of one officer whose certification had lapsed made no material difference. Ground 5

184. DSO 04/2017 (Surveillance Camera System) at paragraph 22 prohibits the use of body worn cameras to record the conduct of any type of search of a person. On 1 February 2024, the defendant’s agents/ officers strip-searched AH. He asked them to turn off their body worn cameras and they refused. That was a breach of the DSO and the PSU upheld AH’s complaint.

185. The defendant placed some reliance on the PSU report which, relying on the body worn footage, recorded that an officer tried to explain the search but AH would not listen; that AH was aggressive and non-compliant; that he removed his clothes before being asked to do so; and that he was never filmed naked and no intimate parts of his body could be seen. The defendant then says simply that AH’s complaint would have made no difference to the search.

186. The defendant’s argument on material difference is, in my judgment, misplaced. There is a material difference between a search which is filmed and one that is not and the policy in the DSO is not limited to strip searches. There was a clear breach of the DSO which is sufficient, in my judgment, to render the search unlawful.

187. AH submits further that, irrespective of the lawfulness of his detention, this was a breach of his Article 8 rights. Given the nature of the unlawful search, I accept that submission. The use of cameras is intrusive and degrading and the defendant’s own policy recognises that. AH Ground 6 and IS Ground 3 – the systems ground The law

188. The starting point for these grounds is that Articles 2 and 3, as well as prohibiting state authorities from subjecting individuals to treatment that violates Articles 2 and 3, also imposes positive duties.

189. In ASY v Home Office [2024] EWCA Civ 373 , the claimants had limited leave to remain subject to a condition of no recourse to public funds. They applied to have that condition lifted on the grounds that they would become destitute if it were not. The policy pursuant to which such an application was made was subsequently found to be unlawful. The case concerned whether the claimants could make a claim for damages for breach of their Article 3 rights.

190. At [44] and following R (Limbuela) v SSHD [2005] UKHL 66 , the court confirmed that there is a duty to act if there is an “imminent prospect” that a person’s Article 3 rights will be breached. The court then summarised the nature and scope of the Article 3 duty as derived from previous decisions at [80]-[81]: “80. The principles governing Article 3, including the positive obligations imposed on public authorities are usefully summarised in X v Bulgaria (2021) 50 BHRC 244 (Application no. 22457/16): “177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals… Children and other vulnerable individuals, in particular, are entitled to effective protection …

178. It emerges from the Court’s case-law as set forth in the ensuing paragraphs that the authorities’ positive obligations under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and, thirdly, an obligation to carry out an effective investigation into arguable claims of infliction of such treatment. Generally speaking, the first two aspects of these positive obligations are classified as “substantive”, while the third aspect corresponds to the State’s positive “procedural” obligation.”

81. Those paragraphs were recently endorsed by this Court in AB v Worcestershire CC [2023] EWCA Civ 529 . Lewis LJ, with whom Dingemans and Baker LJJ agreed, having cited from X v Bulgaria at [13], reiterated at [14]: “[14] Thus, Article 3 prohibits a state from inflicting inhuman or degrading treatment or punishment. It also imposes certain positive obligations on the state. These include putting in place a legislative and regulatory system for protection (often referred to as the “systems duty”). They also include an obligation to take operational measures to protect specific individuals from a risk of being subjected to treatment contrary to Article 3 (often referred to as “the operational duty”). They also include an obligation to carry out an effective investigation into arguable claims that treatment contrary to Article 3 has been inflicted (often referred to as the “investigative duty”).”

191. At [84] the Court of Appeal approved the terminology used by Johnson J in MG (below) and Lewis LJ in AB namely the systems duty, the operational duty and the investigative duty.

192. In R (MG) v SSHD [2023] EWHC 1847 (Admin) the asylum seeker claimant was one of a number stabbed by another resident of a hotel housing asylum seekers. The claimant’s claim was that the Secretary of State was under a lower level systems duty to adopt administrative measures to safeguard against inhuman or degrading treatment and/or an operational duty to take measures to avert a real and immediate risk of such treatment from criminal acts. The claims were dismissed. Johnson J set out a review of the relevant authorities and circumstances in which a lower level systems duty may arise (in a paragraph that was approved by the Court of Appeal in ASY) . This summary of principle included: “6 (9) Where the lower level system obligation arises, the public authority must implement measure to reduce the risk to a reasonable minimum: Stoyanovi v Bulgaria (application No 23980/04) (unreported ) 9 November 2010 at para 61. The content of this duty depends on the particular context and what is required adequately to protect life. It may involve ensuring that competent staff are recruited, that they are appropriately trained, that suitable systems of working are in place, that sufficient resources are available and that high professional standards are maintained. It may also involve regulatory measures to govern the licensing, setting up, operation, security and supervision of the activity in question, together with procedures …. For identifying shortcomings in the processes concerned and any human error. … (10) In interpreting and applying the systems obligation, the court must not impose an impossible or disproportionate burden on public authorities and must have regard to the operational choices made by public authorities in terms of priorities and resources.”

193. The duty was also considered in R (CSM) v SSHD [2021] EWHC 2175 (Admin) where the claimant, a foreign national offender, sought judicial review of his detention. It was thought by counsel that this was the first domestic case in which a claim of breach of the systems duty succeeded. One of the issues was whether there was a systemic flaw in the defendant’s arrangements for detention of individuals with HIV amounting to a breach of the Article 3 duty.

194. At [11] Bourne J defined the duty as follows: “In summary, Article 3 requires the State to put in place appropriate legal and administrative systems for protecting those who are vulnerable to treatment which would contravene it (the “systems duty”).” The court expanded on the nature of that duty at [71] to [73]: “71. The State has a positive duty to put in place a legislative and administrative framework to secure the health and well-being of those in detention so as to avoid harm of a kind which would engage Article 3.

72. An analogous duty under Article 2 requires health authorities to protect the lives of patients in hospitals. In Savage v South Essex NHS Trust [2009] 1 AC 681 , the scope of the duty was described by Lord Rodger at [69]: “In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure o perform these general obligations may result in a violation of article 2.”

73. The context in Savage was different, but the systems duty in relation to protecting immigration detainees from Article 3 ill treatment is of the same broad nature. Deputy Judge Saggerson in Watling v Chief Constable of Suffolk Constabulary [2019] EWHC 2342 (QB) described the Article 3 duty in the context of police custody, at [71]: "This general duty requires that legislative and administrative systems are put in place which will make for effective prevention of the risk to the health and well-being of those under the control of public authorities."

195. In R(SAG) v SSHD was again concerned with the system for deciding to lift an NRPF condition. He found that there was such a systems failure. [2024] EWHC 2984 (Admin) , Johnson J

96. A “low level systems duty” applies to application to remove a NRPFcondition: ASY at [95] per Fraser LJ. This means that there must be suitable systems of work in place, sufficiently resourced, to reduce the risk of inhuman and degrading treatment to a reasonable minimum, without imposing an impossible or disproportionate burden on the Secretary of State, and having regard to the operational choices made by her in terms of priorities and resources … This was pithily expressed by Fraser LJ in ASY at [92]: “The administrative arrangements must be proportionate, but the immediacy of the situation must be taken into account.”

196. There was, in summary, evidence that the average time taken to determine a request to lift the condition was 70 days. Johnson J recognised at [99] that the fact that the average was longer than could be justified in some individual cases did not demonstrate a breach of the systems duty but rather that there was a need for a sufficient system to prioritise cases and expedite cases where necessary. But he found the evidence that waiting times were minimised “where possible” and expedited “where appropriate” too vague:

101. I accept Mr Biggs’ submission that flawed (or delayed) decisions in individual cases do not show a systemic failure. It is the system that is important, for these purposes, and a failure by an individual caseworker to act in accordance with the system does not show that the system is at fault. I would not find against the Secretary of State on this ground of challenge merely because a decision on one or other of the cases that are before the court took too long (and I deliberately make no finding about that). The average figure is representative of the system that is in place rather than a reflection of an individual long-delayed decision. It is entirely fair to evaluate the system by reference to that average figure, together with such evidence as the Secretary of State has chosen to make available as to the mechanisms for prioritisation and expedition.

102. I also accept the submission of Mr Biggs that a court should be cautious before ruling as to the resources that a public body ought to deploy to address any particular issue. It is important not to impose a disproportionate or unrealistic burden on the Home Office. The courts have been careful not to require that decisions be made within any specific inflexible deadline. What is, however, required is a sufficient system that reduces the risk so far as practically and proportionately possible. Simply having a system of case-by-case review and expedition where that is thought necessary does not achieve that end. At the very least, if the average time to determine an application is as long as 70-days, the system needs to ensure that applications are considered, on a triage basis, sufficiently swiftly to enable case-by-case review and expedition to be effective in reducing risk. So far as appears from the evidence that has been adduced by the Secretary of State (who has had every opportunity to deal with this point) the system that is in place does not do that bare minimum. ….

103. Accordingly, the system that is in place does not sufficiently reduce the risk of inhuman and degrading treatment. There is thus a breach of the low-level systems duty.”

197. There is a large measure of common ground as to the principles to be distilled from the authorities: (i) There is a requirement that public bodies ensure that there is a legal and regulatory system in place to reduce risk to a reasonable minimum. (ii) There is an operational duty to take measures to protect specific individuals from the risk of treatment contrary to Article 3. (iii) The court is required to examine the adequacy of the relevant system and/or whether that system is effective where there is an arguable claim. (iv) That examination and analysis is fact and context specific. (v) The court should not impose too high a burden on a public body, having regard to its priorities and resources.

198. The effect of the lower level systems duty is that it is not sufficient for the state to have created a framework or formal system that if operated properly would reduce risk to the reasonable minimum but also that there is a duty to ensure that the system is working. That is not to a standard of perfection but to a sufficient standard of effective implementation or functioning ( R(LW) v Sodexo Ltd. [2019] 1 WLR 5654 at [46]).

199. What is involved in meeting that duty will depend on the context in which the duty arises and is to be discharged. As Mr Armstrong submits, that may include level of risk and the risks faced by those in state detention are recognised as material. It is argued, therefore, that there are compelling grounds for a stringent approach to the systems duty in the context of those with mental issues and in immigration detention. In my judgment that is part of the relevant context rather than a reason to impose a more stringent duty but that may make no practical difference.

200. Mr Armstrong also argued that the principle in sub-paragraph 6(10) in MG does not arise in this case because the court is not concerned with the introduction of a new system and the defendant’s case is not that it is not possible for the existing system to work effectively. Rather the claimants’ case is that the defendant has not ensured that the system is working effectively against the background of public inquiry findings that at Brook House it was not. This submission seems to me to go too far – in principle, it may be the case, even where there is an existing system, that ensuring that it is functioning properly could impose a disproportionate burden, for example, an unrealistic level or cost of training. Further, it does not accord with the decision of Johnson J in SAG v SSHD [2024] EWHC 2984 (Admin) at [96] following ASY . However, I do not consider that any issue of resourcing arises in this case where the issues centre on the understanding and application of the policies.

201. The defendant relied on the requirements set out by the Court of Appeal in R (Detention Action) v FTT [2015] EWCA Civ 840 at [27]. That case concerned a challenge to the FTT’s Fast Track Rules on the grounds of unfairness and unlawfulness. At [27] the court accepted counsel’s summary of the general principles to be derived from the authorities: “(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 sufficient 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. I would enter a note of caution in relation to (iv). I accept that in most contexts the threshold of showing inherent unfairness is a high one. But this should not be taken to dilute the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals.”

202. The claimants submit, rightly, that this a case concerned with common law unfairness which is not the subject matter of this claim and that its application to this claim should be approached with caution. Where it does assist, in my view, is in warning against regarding “aberrant” decisions as indicative of a wholescale failure. I return to the evidence below. The arguments Claimants’ case

203. In their respective cases, the claimants contend that the unlawful treatment they experienced at Brook House was emblematic of systemic failures which amount to a breach of the lower level systems duty. The complaint is not of the “black letter” systems but of their effective operation. The facts, the claimants submit, are sufficiently stark for the court to infer that the systems are not working adequately rather than that the experiences of AH and IS are individual examples of intermittent or occasional errors or failings.

204. Central to that submission is the operation of Rule 35 in turn set again the broader canvas of the implementation of Rule 35. As Mr Armstrong submitted, the Rule 35 system is capable of being operated properly but it is the claimants’ case that it is not being. The system is intended to operate to achieve a position in which the defendant will be notified of any detained person who appears to fall within the Rule 35 categories so that the defendant can make a decision as to whether to detain or release from detention and, if it is decided to detain or continue detention, explain why. Rule 35 sits alongside and feeds into the AAR Policy and the ACDT process similarly is intended to feed into this system and into the making of Rule 35 reports.

205. In the case of AH, I am in no doubt that the system was not properly operated. I have set out AH’s history above and it is clear that nothing caused a Rule 35(1) or (2) report to be produced – not even what was, at the time, regarded as a suicide attempt or placing on constant supervision which is indicative of a serious risk of suicide or self-harm.

206. In the case of IS, the risk of detention was plain from the start given the background of his previous detention and release following judicial review. In the court’s decision on that application, concern had been expressed about the failure to obtain a Rule 35(2) report. History repeated itself and, even when IS was on constant supervision, still no report was produced.

207. These experiences are set against the evidence of repeated failings to operate Rule 35 (and therefore the system as a whole) properly and so as to achieve the reasonable minimum level of risk. The particular background is found in the Brook House Inquiry and the statistics relating to Rule 35 reports.

208. The Inquiry arose from a Panorama report on practices at Brook House between April and August 2017 which had been covertly filmed. They included the use of force by staff on mentally and physically unwell patients. The Inquiry began in November 2019 and the chair, Kate Eves, published her report in September 2023, making 33 separate recommendations.

209. The Inquiry addressed 10 key thematic issues which included safeguards for vulnerable individuals, restrictions on detained persons (Rules 40 and 42) and use of force.

210. It is helpful to set out at some length the Executive Summary of the Inquiry’s findings in respect of safeguards for vulnerable individuals. “31. I also looked in detail at failures in safeguards at Brook House for those individuals who may be vulnerable to suffering harm in detention. Those safeguards are intended to ensure that people are only detained when it is appropriate to do so and that they are not at serious risk of harm by continued detention. Failure to follow safeguarding rules and procedures clearly contribute to an environment in which harm may more easily occur. It was clear from the evidence the Inquiry saw that staff within Brook House, including medical professionals, were failing to apply the safeguards consistently.

32. I found serious failings in the application of Rule 34 and Rule 35 of the Detention Centre Rules 2001. … Many of these concerns have been raised previously by various oversight bodies and non-governmental organisations. Where Rule 35 reports were completed, the quality was generally poor. Dr James Hard, the Inquiry’s medical expert, considered that around 75% of the Rule 35(3) reports he examined were inadequately completed. In particular, he noted that there was either no conclusion regarding the possibility of previous ill treatment being torture, or no conclusion on the impact of ongoing detention.

33. I have been particularly critical of the practice of using incorrect forms [Part Cs] to notify the Home Office of vulnerable detained people. This was wholly inappropriate as it would not prompt review of an individual’s suitability for ongoing detention, and I found no evidence of this practice acting as an effective safeguard.

34. I considered the Homes Office’s Adults at Risk Policy, which gives guidance on the care and management of detained people deemed to be particularly vulnerable or at risk in detention, and the Assessment Care in Detention and Teamwork process, which promotes a holistic approach to self-harm and suicide prevention. I found evidence of a disconnect between these policies and the Rule 35 process. There was no recognition that a holistic view needed to be taken in relation to self-harm and suicide risk, and that the various processes should be complementary. This undoubtedly exposed vulnerable people to a risk of harm and, in some cases, caused actual harm to be suffered.

35. I remain gravely concerned about the dysfunction in the operation of these layers of safeguards,. Based on the evidence I have seen throughout this Inquiry, vulnerable people in detention are not being afforded appropriate protections that these safeguards were designed to provide.”

211. The report was also critical of the operation of Rule 40 which was “routinely misunderstood, misinterpreted and misapplied by both G4S and the Home Office” and the inappropriate use of Rule 40 as punishment, for convenience, and to manage detained persons who were mentally ill. The system was again found in a number of areas to be dysfunctional. The report was similarly critical of the use of force. Mr Armstrong relied on these aspects of the Inquiry’s findings, as he put it, for context only which I took to mean that, although the operation of r35 was the focus of the systems ground, that was to be seen against the background of a system that had been found in other respects in the Inquiry to be dysfunctional.

212. The Inquiry received evidence as to the application of the framework created by Rule 34 and Rule 35, the AAR Policy and the DSO at Brook House. The Inquiry found that it was abundantly clear that there were a number of deficiencies in the way that Rule 34 was operating. Summarising, in practice, on arrival, a nursing screening was sometimes the only appointment that occurred and that it was treated as a Rule 34 examination when it was not. Even where a Rule 34 appointment did take place with a GP it was often not within 24 hours and lasted only 5 minutes which was not sufficient time to complete a mental and physical health assessment. That was also insufficient time for a Rule 35 report to be completed. There was provision for only one Rule 35 assessment per day. A practice, therefore, arose of holding a second appointment for a Rule 35 report if flagged at the first appointment often resulting in substantial delay. The report highlighted an unacceptable lack of training on Rule 34 and 35.

213. The report on Rule 35 included statistics set out in Chapter D.5 of the Report which gave numbers of Rule 35(1), (2) and (3) reports at Brook House and across the immigration estate from Q1 2017 to Q1 2023. The numbers of Rule 35(1) and (2) reports were vanishingly small compared with the total numbers. The pattern across the whole estate was similar. At paragraph 33, the report stated: “At Brook House in quarters 2 and 3 of 2017 (which cover the relevant period from 1 April 2017 to 31 August 2017), only five Rule 35(1) reports were completed and no Rule 35(2) reports were completed. Only one detained person was released as a result. In the whole of 2017, only eight Rule 35(1) reports were completed. No Rule 35(2) reports were completed in 2017, or indeed in 2018, 2019, 2020 or 2021.”

214. The cases of three detainees were considered to illustrate various deficiencies in the system: (i) The lack of a system for automatic review of a detained person’s health where there was self-harm, a suicide attempt or an apparent deterioration in their mental health. (ii) When a GP was asked to carry out such a review, no systematic approach to using Rule 35(1) or (2) reports to notify the Home Office of these changes in presentation to enable detention to be reviewed. (iii) No mechanism for systematically reviewing whether a person’s condition had changed or detention was having an impact.

215. The chair considered that the issue was not lack of time but that it was likely that there was and remained a failure to recognise the importance of the safeguards, the risks of detention and the responsibilities of the Healthcare staff (paragraph 40). “41. In my view, this was caused, in part, by the complete absence of a consistent mechanism for the routine follow-up of detained people who were considered to be victims of torture of adults at risk. The failure to complete rule 35 reports in appropriate circumstances resulted in the deterioration in the mental health of detained people and an increased risk of self-harm and suicide. It therefore left them more vulnerable to harm. Deterioration was not detected or monitored adequately. More importantly, the person remained in detention and there was the potential for the risk to materialise, causing harm. The Home Office was not informed as it should have been and therefore did not review detention or consider release, as it ought to have done. These were serious systemic failures, indicating a wholesale breakdown in the system of safeguards designed to protect vulnerable detained people.”

216. The Inquiry found (paragraph 48) that an inappropriate practice had developed of Part C forms being completed, primarily by GPs, to inform the Home Office of vulnerabilities or risks rather than rule 35 reports: “49. It was entirely inappropriate to use Part C forms instead of Rule 35 reports to inform the Home Office of concerns about a detained person, thereby bypassing the system of safeguards designed for this purpose. This was particularly the case in circumstances where the form did not achieve the purpose for which it was being used: namely, a review by the Home Office of a vulnerable person’s detention and consideration of their release. The fundamental difference between Part C and Rule 35 is that only Rule 35 requires the Home Office to review a detained person’s detention and consider whether they should be released. Rule 35 thus operates as a safeguard for individuals who are vulnerable to harm caused by detention. The important feature of the safeguard is that it requires a response …..”

217. In relation to the ACDT process, one individual case was used to illustrate the disconnect between the ACDT process and rule 35. Despite multiple indicators of risk and a particular incident of self-harm which was regarded by staff as a suicide attempt, only an ACDT was opened and no rule 35(1) or (2) report was created. It was noted (paragraph 58) that the ACDT process is not a clinical process and does not lead to clinical input or treatment. It was not a mechanism to address the underlying causes of a person’s risk of self-harm or suicide. Then at paragraph 59: “The opening of an ACDT document in relation to a risk of self-harm, including after an act of self-harm or a suicide attempt, did not trigger the consideration of Rule 35. Nor did it trigger the completion of a Rule 35 report to inform the Home Office of the risk that the detained person may suffer harm or was already suffering harm in detention. That risk or suffering of harm was demonstrated by the necessity to manage them using the ACDT process. …”

218. The Inquiry concluded that there was no recognition by GPs or healthcare staff at Brook House that a holistic view needed to be taken in relation to the risk of self-harm and suicide nor was it recognised that the various processes should be complementary (paragraph 63) and at paragraph 64: “In my view, the disconnect between the ACDT process and the other safeguards for vulnerable people is symptomatic of wider and deeply rooted problems. It is indicative of a system that is not fit for purpose.”

219. The Inquiry made 33 recommendations including in relation to Rule 35: (i) Recommendation 8: “ Recommendation 8: Mandatory training on Rule 34 and Rule 35 of the Detention Centre Rules 2001 The Home Office (in collaboration with NHS England as required) must ensure that comprehensive training on Rule 34 and Rule 35 of the Detention Centre Rule 2001 is rolled out urgently across the immigration detention estate. Staff must be subject to refresher training, at least annually. Attendance must be mandatory for all staff working in immigration removal centres and those responsible for managing them, as well as GPs and relevant Home Office staff. Consideration must be given as to whether such training should be subject to an assessment.” (ii) “ Recommendation 9 : Review of the operation of Rule 35 of the Detention Centre Rules The Home Office must, across the immigration detention estate, assure itself that all three limbs of Rule 35 of the Detention Centre Rules …. are being followed, are operating effectively and are adequately resourced, in recognition of the key safeguarding role that the Rule plays. The Home Office must also regularly audit the use of Rule 35 in order to identify trends, any training needs and required improvements.”

220. In making these recommendations, the report noted that the Inquiry had not received evidence of any fundamental changes to the system of safeguards since 2017 including no significant change in relation to the application in practice of Rules 34 and 35. The January 2023 report of the Independent Chief Inspector of Borders and Immigration stated that “the Rule 35 process needs to be called out for what it is – ineffective.” The chair expressed the view that there was “clearly a deeply rooted, systemic problem in relation to the adequacy of the operation of the safeguards under Rule 35.”

221. It is unnecessary to set them out but there were, perhaps unsurprisingly, similar recommendations about clarification, training and auditing relating to Rule 40 and a new DSO about use of force.

222. I have not set out all of the passages to which the court was referred in the course of argument but those set out above paint a clear picture both of the use of Rule 35 in Brook House in the period relevant to the Inquiry and of the views of the Inquiry as to whether anything had changed in the period to the making of the Report.

223. Section 2 of the Inquiries Act 2005 provides: “(1)An inquiry panel is not to rule on, and has no power to determine, any person's civil or criminal liability.” “(2)But an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes.”

224. The claimants, therefore, recognise that the Inquiry could make no findings of breach of Article 3 in the sense of a systems failure but the report comes as close as it could to doing so. In any case, Mr Armstrong emphasised that what was more important to the claimants’ case was the evidence given to the Inquiry, including if not limited to that set out in the report, but submitted that the distinction between evidence and findings was not always an easy one to make.

225. Adegboyega v SSHD [2024] EWHC 2365 (KB) was a claim for damages arising from unlawful detention (and other events) in detention at Brook House between 28 April 2017 and 24 July 2017. The claimant was given permission to rely on the Brook House Inquiry Report and the judge ordered that the weight to be attached to the evidence was subject to the factors in section 4 of the Civil Evidence Act 1995 . In the course of the judgment, the approach was largely to regard the evidence given at trial as corroborated by the Inquiry Report. The decision is of little assistance in the present case. The events were in broadly the same period as covered by the Report and, whether properly characterised as evidence or findings, the Report was corroborative.

226. In my judgment, the relevance of the Report in the present cases is twofold: (i) the pattern of application of the processes involving ACDT, constant supervision and rule 35 and in particular the numbers, as seen in 2017, and (ii) the evidence given to the Inquiry and recited in the report as to whether there had been any change in practices or numbers.

227. In terms of subsequent events and those covering the period relevant to the claimants’ claims, HMCIP’s report of an unannounced inspection of Brook House (30 May 2022 to 16 June 2022) identified as Key Concerns: “7. The identification and management of risk on arrival was not good enough . Not all detainees were offered a private interview on arrival and staff did not always spend enough time enquiring into detainees’ risk.

8. The Rule 35 report process was not being used to its fullest extent to protect detainees who had conditions that might have been worsened by detention. Nearly all reports related to potential victims of torture and very few were prepared for detainees with health problems or suicidal ideation.

9. Assessment, care in detention and teamwork case management for detainees at risk of suicide or self-harm was not good enough. Assessments were sometimes very brief and care maps lacked detail. Health care staff and Home Office attendance at reviews was poor, and interpretation was not consistently used.”

228. It was recorded (paragraph 2.13) that in the six months leading to the inspection, 179 Rule 35 reports had been submitted. Of these 170 concerned claims of torture, 5 were related to health issues and only one referred to suicidal ideation despite 60 detainees, over the same period, being on constant watch because of concerns about self-harm. 117 ACDTs had been opened but most of the documentation did not reflect a good standard of care.

229. It would be misleading to say that there was nothing positive in this report and the defendant relied on such passages but they paled into insignificance against the negatives.

230. The Annual Report of the Independent Monitoring Board at Gatwick Immigration Removal Centre for the reporting year 2023 was published in August 2024. It, therefore, covers most of the period relevant to this claim. Under Main Findings, the IMB found that safety at both Brook House and Tinsley House had deteriorated over the course of 2023. In relation to rule 35, the IMB found: “There has been continued failure to use Detention Centre Rule 35 to its fullest extent and in accordance with its clear words. … The low number of Rule 35(1) and 35(2) reports does not reflect the level of need shown from levels of self-harm and suicidal intention in the centre.”

231. In relation to Rule 35 reports, the IMB said that many of the concerns highlighted in the 2022 report had not been addressed. They set out the numbers of Rule 35(1) and (2) reports and ACDTs opened and felt that, in light of the number of ACDTs opened, it was not credible that the number of Rules 35(1) and (2) assessments reflected the real level of need. The Board continued: “4.5.7 The Board can only concluded that, despite much talk of training by PPG, there had not been a substantial shift in how these processes are understood and dealt with. As highlighted in last year’s report, the fact that only torture is routinely considered as a trigger for Rule 35 support sets the bar very high in terms of safeguarding. The signs are that the clear directions of Rule 35(1) and (2) are not being adhered to. 4.5.8 The Board is concerned that the effectiveness of Rule 35 as a safeguard is further undermined by the very high proportion of cases in which detention is maintained due to the use of the Home Office’s discretion under the Adults at Risk policy prioritising immigration factors. Reports resulted in release only 31% of the time, which is even lower than 2022. Even in the case of Rule 35(1), where the report indicates a likelihood of harm because of continued detention, only 50% of men were released.”

232. His Majesty’s Inspector of Prisons made an unannounced inspection of Brook House on 5 – 22 August 2024 (that is after the period with which this claim is concerned). The Inspector found a decline in safety and respect. The inspection saw several cases where the Home Office had not identified or sufficiently explored significant vulnerabilities before deciding to detain and weaknesses in safeguards were identified: “3.16 Rule 35 reports were not made promptly or when necessary. Most of the 256 reports submitted in the last six months concerned torture and 11 had considered that detention was having an adverse effect on the detainee’s health. While only two had been made because detainees were suspected of having suicidal intentions, 35% of detainees in our survey said they had felt suicidal on the centre, and 43 had been placed on constant supervision in the previous six months because of an imminent self-harm risk.”

233. Drawing the statistics together, for Brook House: (i) In the 2022 calendar year, there were 216 ACDTs opened; 17 Rule 35(1) reports and 10 Rule 35(2) reports. Up to October 2022, there were 104 constant supervisions enacted. (ii) In the 2023 calendar year, there were 239 ACDTs opened, 19 Rule 35(1) reports and 4 Rule 35(2) reports. Data for constant supervision was not available. (iii) From June 2023 to June 2024, there were 260 ACDTs opened, 17 Rule 35(1) report and 3 Rule 35(2) reports. In the same period there were 67 constant supervisions enacted.

234. In other words, there was a remarkably low number of Rule 35(1) or 35(2) reports compared with the number of ACDTs opened and, even more starkly, with the numbers of constant supervisions. In any case, the number of Rule 35 (1) or (2) reports remained at the remarkably low level which was commented on adversely in the Brook House Report.

235. Mr Armstrong submits that one of the contributory factors to this low number of reports is the inadequate ACDT process. So far as the ACDT procedure (DSO 01/2022) is concerned, the claimants point out that paragraphs 39 and 40 are the only references to Rule 35 in the context of ACDT and that they are unduly limited as they address only a healthcare practitioner triggering a Rule 35 report and/or imply that only a healthcare practitioner is responsible for triggering a Rule 35 report, rather than recognising that the system should lead to a person at risk being seen by a medical practitioner for the purposes of a report, if appropriate. The Part C is mandatory under paragraph 50 but with no link to consideration of a Rule 35 report. The Part C is a means of communicating information but does not trigger a detention review. Similarly, the case reviews are to consider level of risk but there is no reference to Rule 35 reports. It is not suggested that this would never result in the triggering of a Rule 35(1) or (2) report other than at the initial opening of the ACDT but rather that the process does not focus those operating the ACDT procedure (including non-healthcare staff) on the application of Rule 35.

236. I accept that the experiences of AH and IS – the manner in which the forms were completed and how they were actioned – demonstrate this disconnect and the direct impact on the production of Rule 35 reports.

237. So far as the statistics are concerned, Mr Armstrong submits further that the present case is a close analogy to SAG . There are not average figures but there are statistics that show both that little or nothing has changed since the Brook House Inquiry Report, that the remarkably low numbers of Rule 35 (1) and (2) and the surprising correlation, or rather lack of correlation, between the number of persons under constant supervision and the numbers of ACDTs opened and the numbers of Rule 35(1) and (2) reports allow this court to infer that the system was not working properly. It is necessarily a matter of inference but the court can infer that the system was not functioning effectively because of the lack of understanding of the obligation on medical practitioners to provide a Rule 35(1) or (2) report, a similar lack of understanding in the Home Office, the inappropriate content of the ACDT form, the “disconnect” between ACDT and Rule 35, and the over reliance on Part Cs (which are not part of the AAR Policy). The experiences of both AH and IS are, as it was put, emblematic of these failings.

238. Drawing the threads together, the claimants submit that the evidence of a breach of the systems duty is so strong that it calls for an answer from the defendant, not least because it is the defendant, as the state, that is in possession of the evidence.

239. Before turning to the defendant’s case, I add for completeness that the claimants also placed some reliance on other individual cases which chimed with that of AH and IS. In particular, the court’s attention was drawn to the Prevention of Future Deaths Report sent by the coroner to the Home Office (25 October 2024) following the inquest into the death in detention of Frank Ospina. The report recorded that, despite a suicide attempt, no rule 35(2) report had been prepared and that there was “a clear mismatch between the healthcare and Home Office expectations and practical application of the R35 provisions.” Two other claims which were settled were also referenced. I do not consider that these matters assist or should properly be taken into account. They may be of a piece with the claimants’ case but they go no further. Defendant’s case

240. The defendant’s high level submission is that this court should not undertake “a mini updated Brook House Inquiry”. That last submission is undoubtedly right but does not reflect, subject to one matter which I address below, the claimants’ case. More particularly, the defendant submits that AH and IS’s evidence is only of their own experiences and cannot be extrapolated from to establish a systems failure. The background evidence of the Brook House Inquiry and subsequent reports are selective, are not evidence to which the defendant has a proper opportunity to respond in these proceedings, and are not a basis on which this court could find a systems failure. On the contrary, the defendant says that the evidence shows the system working properly by identifying and highlighting where improvement is needed to make the system effective.

241. The defendant’s evidence was given by the statement of Frances Hardy, Deputy Director of Detention Services.

242. In her statement, Ms Hardy identified the legal and regulatory regime in place including the Detention Centre Rules 2001 and the Detention Centre Operating Standards. She said that training of staff was provided and Detainee Custody Officers must receive proper training to a satisfactory standard before commencing employment. Following extensive initial training, there is annual refresher training. The Home Office had oversight of IRCs and systems are subject to statutory oversight from Independent Monitoring Boards and HM Chief Inspector of Prisons. All IRCs have dedicated healthcare facilities whose performance is regularly reviewed.

243. Ms Hardy referred to the specific policies relating to vulnerable detained persons: (i) The AAR Policy. (ii) DSO 08/2016 “Management of Adults at risk in immigration detention” which, in particular, provides for changes in a person’s vulnerability to be brought to the attention of the Home Office through the use of IS91RA Part C. (iii) DSO 06/2013 which provides for initial healthcare screening. At the time of the claimants’ detention, a Rule 34 appointment was automatic following healthcare screening. (iv) Rule 35 and DSO 09/2016 Detention Centre Rule 35. She states that a Rule 35 report is triggered by concerns of a medical practitioner and that the defendant cannot require a Rule 35 report. (v) The ACDT regime. (vi) Multi-disciplinary meetings. (vii) DSO 04/2020 Mental Vulnerability and Immigration Detention, providing guidance for non-clinical staff on how to identify those with mental health conditions and refer them. She said that the defendant was currently reviewing this guidance with a view to strengthening it.

244. She gave further evidence about the response to the Brook House Report and action taken to provide an effective system.

245. Ms Hardy’s evidence largely set out what the system was and how it was supposed to work. Her evidence in relation to Rule 35 reports offered no explanation for the low numbers, which was clearly an issue the defendant was aware of not only from these proceedings but from IS’s own case, the Brook House Inquiry, and subsequent reports. Whilst she is right that only a medical practitioner can make the report, she does not offer any explanation for why that has been happening to such a limited extent. Ms Hardy set out the numbers of Rule 35 reports at Brook House to year end June 2024 but without any further comment.

246. Ms Hardy’s evidence further was that following the HMCIP report in 2022, the Home Office had developed a training package for medical practitioners to clarify the Rule 35 process, outline standards expected and key information to include in reports. A training package was delivered to healthcare providers across the immigration removal estate and was now operated as “business as usual as part of an ongoing process to ensure healthcare staff have access to Rule 35 training.” The implication of that statement was that steps had already been taken to address the issues raised in that report but the statistics show no significant change.

247. Mr Fletcher submitted that, contrary to the claimants’ case, the statistics suggest that the systems are working to bring vulnerable adults to the attention of the defendant and that the small number of Rule 35(2) reports does not evidence lack of training or a misunderstanding of the operation of the Rule. The ACDT system is properly linked to the Rule 35 system and it is not the case that an ACDT should trigger or necessitate a Rule 35(2) (or Rule 35(1)) report and, accordingly, no relevance should be attached to any comparison of numbers. Conclusion

248. Since at least the period covered by the Brook House Inquiry there is a clear and persistent picture of a failure of the system intended to protect the Article 3 rights of adults at risk. It is characterised by a failure to apply properly or at all the provisions of Rule 35. As Mr Armstrong submitted, the operation of Rule 35 (and Rule 34) is not simply a medical process but a shared responsibility. IRC staff are responsible for referring detainees to a GP for assessment and the defendant has a duty of inquiry under the AAR Policy.

249. What the Brook House Inquiry highlighted was that detainees were not being assessed by a medical practitioner in circumstances where that ought to have happened and detention reviews that ought to have taken place did not.

250. The statistics as to the numbers of Rule 35(1) and (2) reports speak for themselves particularly when compared with the numbers of ACDTs and constant supervisions. It is inconceivable that if the system were operating effectively, the numbers would be so low. The numbers have remained at this low level despite the issue, and the causes of the issue, being raised in the Inquiry, in IS’s case and in the subsequent reports referred to.

251. The claimants’ case that that has in part been driven by the inappropriate ACDT forms or the inadequate completion of these forms is a matter of inference but it is an inference that is hard to resist.

252. The figures alone called for an answer but there has been no explanation for the figures other than a broad assertion that the system can been seen to be working. Nor has there been any or any satisfactory evidence that, between 2017 (the period covered by the Inquiry) and the period in issue in these cases, any effective steps were taken to address the failure in the system.

253. The experiences of AH and IS are properly regarded as emblematic of this failure and the disconnected system and evidence that during the period with which these claims are concerned nothing had changed.

254. I will, therefore, make the declaration (vi) sought by AH and (6) sought by IS save that the failure is in ensuring the implementation of the system and not in its design. As I have said, it was accepted in the course of the hearing, that the system was capable of working effectively but was not working effectively. The response to the Brook House Inquiry

255. There was a body of evidence before the court as to the defendant’s response to the Brook House Inquiry. Ms Hardy’s evidence was that a cross-government working group was set up in September 2023, under her chairmanship. She said that the working party had considered the report and the recommendations in detail and would continue “to monitor the appropriateness of, and adherence to, policy and operational guidance to ensure those involved in overseeing and running the estate remain cognisant of inquiry recommendations”. The Home Office, DHSC, MoJ and NHS England were part of that working group.

256. Ms Hardy explained that: “The purpose of the Working Group had been to fully consider and accept or reject recommendations and it continues to meet monthly to monitor progress against accepted recommendations and drive forward implementation.” As the claimants highlighted, she did not clarify what recommendations had been accepted or rejected but provided some evidence of steps taken including training and new proposed new DSOs.

257. It is sufficient to say that the claimants were critical of this evidence and made requests for disclosure as to the response seeking clarity as to what recommendations had been accepted and what was being done. The defendant expressed concern that the claimants were on a fishing expedition and one that did not relate to the period to which this claim relates. I have considerable sympathy with that view because the evidential value of what may or may not be being done is at best peripheral to whether there was a breach of the systems duty in the period in issue.

258. Shortly before the hearing, however, the defendant disclosed the minutes of the Brook House Inquiry Working Group. It was apparent from the minutes that the working group had considered recommendation 8 from the Brook House Inquiry specifically in relation to Rules 34 and 35. Although Ms Hardy’s evidence was that the working group was considering further training, the minutes would seem to demonstrate that that was limited to training for GPs. The recommendation to provide training to Home Office staff and all IRC staff was rejected because Rule 34 and 35 were regarded as “medical processes”. The recommendation to provide training to healthcare staff was rejected because they had their own training procedures. The recommendation for training for GPs was accepted but thus far that was “lunch and learn sessions” and any further training was placed on hold pending the AAR review.

259. Mr Armstrong submitted that this is not an effective response and does not evidence the remedying of the systems failure. He relied on the shared responsibility to which I have referred above and submitted that failing to provide training in the operation of the AAR Policy and Rule 35 does nothing to remedy the apparent failure to operate these policies lawfully and perpetuates errors (such as the approach to or overreliance on Part Cs). Further relying on the training of medical staff by their professional bodies, without any steps to ensure that that training is provided, removes the defendant’s responsibility for the proper operation of the Rule 35 procedure.

260. Recommendation 9 from the Inquiry was a review of the operation of Rule 35 to ensure that all three limbs were operating properly. Ms Hardy’s evidence indicated that that review was being undertaken. However, the working group minutes showed that no progress had been made and other work was prioritised.

261. There was an internal thematic review of the operation of the ACDT system which highlighted the poor standard of paperwork; low attendance of healthcare staff and DET at ACDT reviews at Gatwick IRCs; low resident engagement in the ACDT process, including lack of contribution to the “sources of support” and “care plan” elements of ACDT; and the Home Office caseworking system ATLAS not correlating with the detainee’s present situation as recorded in ACDT records. The review, therefore, it was submitted, demonstrated consistent failures in the implementation of the ACDT procedure but also the lack of connection with the Rule 35 procedure.

262. There is merit in the claimants’ submissions on this response but it seems to me that this evidence can only be relevant as some support for the claimants’ case that the system was not functioning properly in the relevant period in 2023-2024 because it is still not, to put it colloquially, fixed. I have reached my conclusion on the breach of the systems duty without regard to this evidence and I make no findings on the adequacy or lawfulness of the response to the BHI Report which is not the issue before me. After the hearing

263. There was a lengthy delay in the giving of judgment in this matter and I emphasise that that was through no fault of any party. One impact, however, was that, in the meantime, Lang J heard and decided the case of R(D1914) v SSHD [2025] EWHC 1853 (Admin) .

264. The claimants properly drew that decision to my attention and made brief submissions by email dated 22 July 2025. It is helpful to set out what was said: “[The decisions] dismissed a claim that the SSHD is/was in breach of the Article 3 investigative duty and the Article 3 systems duty by failing to implement (or fully implement) the Brook House Inquiry recommendations. In fact, whilst we think that her ladyship should be aware of the decision, we submit that it does not assist. D1914 was a much broader claim that that advanced by the present Claimants. It looked at whether all 33 recommendations made by the BHI Inquiry had or had not been met. It was framed as being specifically tied to the investigative duty. And it was not determining post-2017 individual detention experience evidence. Lang J explicitly said that a case like the present one (she had been told about AH &IS) would be different to that before her: see [269].”

265. I received further concise submissions by email from Mr Fletcher on behalf of the defendant and from Mr Hutcheon on behalf of IS. Having considered the judgment, and the submissions, Mr Armstrong’s summary seems to me an accurate submission and a correct submission.

266. In the course of her judgment, Lang J considered the evidence before her as to each of the 33 recommendations made by the Inquiry Report. In short, she concluded that they had either been met or substantially met (any departures being within the defendant’s discretion) or that the defendant was entitled to reject the recommendation. The evidence in relation to recommendation 8 does not appear to have extended beyond the evidence before me but Lang J considered that it showed that the recommendation was in the course of being substantially met and that any departures from it were a reasonable exercise of the defendant’s discretion. In respect of recommendation 9, the evidence was that the Home Office was undertaking a wholesale review of the Adults at Risk policy and Rules 34 and 35 which they aimed to complete by spring 2025. The current AAR Policy (from March 2024) was subject to criticism but the court held that the defendant was entitled, in the exercise of her executive discretion, to adopt the policy.

267. At [266], Lang J recorded that the claimants had rightly conceded that the defendant’s response to the report was a matter for her discretionary judgment but that the claimants now challenged the lawfulness of that response. She continued: “268. The Claimants also make the somewhat startling submission that, pursuant to the duty in Article 3 ECHR, the Court must undertake the task of assessing whether measures taken in response to the recommendations are effective, and whether they meet a minimum standard, and then order the Defendant to undertake a fresh review. I agree with the Defendant that the Administrative Court is not a mechanism which is practically or constitutionally suited to a wide-ranging review of the current state of immigration detention. In its expanded Ground 2, the Claimants are seeking to use the Court as a form of second inquiry, which goes beyond the confines of its supervisory jurisdiction.

269. I accept the Defendant’s submission that if any breaches of Article 3 ECHR are apparent or imminent, the appropriate role for the Court would be to adjudicate upon a claim brought by a victim which set out the individual and/or systemic breaches alleged. Where the evidence is disputed, as in AVY’s case, a trial with witnesses will be ordered. I am informed that such a claim has been issued (R (AH & IS) Secretary of State for the Home Department) and is currently before Jefford J..

270. I also accept the Defendant’s alternative case that, even if the investigative duty did extend to her response, the Defendant has sufficiently addressed, or is in the course of addressing, the BHI’s recommendations, and implementing the measures which she considers appropriate, in the exercise of her discretionary judgment. In the section of my judgment on the recommendations, I have set out where each recommendation has been met or substantially met or rejected, and where I consider that any departure from a recommendation was a reasonable exercise of the Defendant’s executive discretion.

271. I am not persuaded by the Claimants’ submission that the Defendant’s response, or lack of response, has resulted in an ongoing breach of the systems duty in Article 3 ECHR, for the reasons set out in my review of the recommendations. The focus of the BHI was the mistreatment of detainees, but it is important to bear in mind that the Defendant had to have regard to other factors too, namely the requirement of an effective system of immigration control, which may include detention, segregation, use of force, as a last resort, to address the risks of absconding, offending and non-compliance. The BHI report does not grapple in any meaningful way with these factors, presumably because they were considered to be outside its remit. Of course, these factors cannot justify any breach of Article 3 ECHR, but they do serve to explain why the Defendant’s approach differs from that of the Inquiry Chair in some instances.”

268. The position as set out by Lang J is, therefore, that the investigative duty does not extend to examining whether the defendant has complied with the Inquiry’s recommendations not least because the defendant is not obliged to accept them and has an executive discretion both as to whether to accept them and how to implement them.

269. As I read it, there is nothing in the observations about the Inquiry at [271] which precludes my taking account of the Inquiry as part of the background evidence in this case. Mr Fletcher submitted that the effect of [270]-[271] was that the claimants could not sustain their submission that there had been a failure to move the dial, as it had been put, between 2017 and 2024. I do not accept that submission – it is not what Lang J was concerned with or was addressing.

270. Mr Fletcher drew attention to Lang J’s observation at [268] that the claimants in that case were seeking to use judicial review as a form of second inquiry which went beyond the court’s supervisory jurisdiction. Lang J, however, expressly recognised that a breach of the systems duty may be addressed in an individual’s case such as these. As I have said, Mr Fletcher gave that warning in this case but the examination of the individual cases against the broader background evidence and particularly the striking statistics do not amount to a second inquiry. Further, these are not cases that raise as such consideration of the balancing of factors in immigration detention but rather whether the system was working effectively to enable that balancing to be lawfully carried out in these cases and more generally. For the reasons I have given, I am satisfied that, at the time in question, it was not. That may be of some relevance to future arguments but it does not amount, as I have expressly said, to any findings about the response to the Brook House Inquiry or give rise to any conflict with the decision of Lang J.

271. I do, however, note that, in AH’s case only, an order is sought that the defendant carry out an Article 3 compliant investigation and put in place effective systems. That was not the focus of the submissions made to me which was very much the declaratory relief. If such an order were sought, I would not make it. What appears to be sought under that guise is, indeed, a second inquiry and an order which would require examination of what the defendant has done or is doing in response to the Brook House Inquiry. For the reasons given by Lang J that would go well beyond the supervisory powers of this court.

272. Lastly, in September 2025, the claimants provided the court with a copy of a further HMCIP report – an independent review of progress at Brook House – from July 2025. The defendant responded, with justification, that this could have nothing to do with the claimants’ detention and made no further submissions. The only relevance the claimants sought to attach to this report was its continued reference to failures in the practice relating to Rules 35(1) and (2) and of the relevance of the issues raised in these proceedings. I say no more about it. The consequential order

273. Following provision of a draft judgment, the parties have liaised in respect of the terms of the consequential order, for which the court is grateful, and that had resulted in a largely agreed draft Order. Apart from an issue as to an extension of time for any application for permission to appeal, one substantive issue has arisen, namely whether, in light of the decision on the lawfulness of the use of force, AH was entitled in principle to damages for assault. The parties made short submissions on this issue by email to the court. It is convenient to deal with this issue in this judgment.

274. In my view, counsel for AH is right to say that an entitlement to damages for assault follows in principle from my judgment. I have found AH’s detention from the outset to be unlawful. Any use of force in the context of and as a result of that detention must be unlawful, and that is a common assault. The matters relied upon as to the extent of force and the officer’s certification were relied on as further or alternative grounds. The fact that I have found in AH’s favour in respect of the further or alternative ground 4 only on the limited basis of lack of certification is, therefore, not an answer to the claim for damages in principle. It does not follow, as Mr Fletcher has submitted on behalf of the defendant, that no damages could flow from the use of force that was otherwise necessary and proportionate. Both that and the fact that the lack of certification made no material difference to AH’s treatment may well be relevant to quantum but not to the principle of entitlement.