Home Secretary admits human rights and equality breaches in botched detention centre evacuation

The Home Secretary has conceded the claims of two former immigration detainees relating to a power outage at Harmondsworth immigration removal centre (IRC), a detention centre next to Heathrow airport. The Home Secretary not only paid both claimants substantial amounts in damages for unlawfully detaining them, but also declared that he had in both cases breached their rights under the Equality Act 2010. A further declaration was made in one case that the Home Secretary had breached the claimant’s rights under Article 3 of the European Convention on Human Rights (ECHR).

This was in the linked cases of R(AK) v SSHD CO/4703/2022 and R(AJ) v SSHD CO/4709/2022 which were heard at the High Court before Mr Justice Lavender on 28 November 2023. The cases had been listed for a three day hearing but the Home Secretary conceded the claims on day one.

Coming on the heels of the damning 19 September 2023 report following a statutory public inquiry into events that took place at Brook House IRC in 2017, one of the Gatwick detention centres, the outcome of this case raises questions as to whether the Home Secretary has learned any lessons from those disturbing events.

Power outage and evacuation

Just before midnight on 3 November 2022, there was a catastrophic failure at Harmondsworth IRC that led to a power outage across the whole site. Despite repeated warnings by engineers of the acute risk of key elements of the site’s infrastructure failing, the Home Secretary’s chaotic response, including the bungled evacuation of the 506 detained residents, revealed that there was no robust plan in place for such an emergency.

On the morning of 4 November 2023, the first day of the power outage, detainees were kept locked in their cells until 11am, three hours later than normal. By this point conditions were already deteriorating. There was no longer any running water through the taps, the toilets in the cells would not flush and quickly began to smell and the centre was cold and dark, without much natural light.

Ignoring warnings from more junior staff, managers operated on the belief that the emergency had been resolved. It was not until 2.30pm that they appeared to become aware that the centre remained without power and water. At this point one of the claimants was given a sandwich, crisps and a small bottle of water, which was the first he had been able to eat or drink that day.

At around 4pm, the Home Secretary rejected the possibility of evacuating the centre, despite advice that this would be necessary. Throughout the evening, staff withdrew from the wings, leaving detainees alone, effectively to fend for themselves. One of the claimants had locked himself in his room, fearing for his safety, where he remained until his evacuation more than 24 hours later.

A group of about fifty detainees, including one of the claimants, had been locked out in the yard by staff. As the cold November night swept in, they lit fires to keep warm. They were not allowed back into their cells until around 2am the next morning. Instead of acknowledging the severe conditions they faced, the Immigration Minister, Robert Jenrick, decided instead to blame detainees for causing disruption. The Home Office later confirmed in a Freedom of Information response that there had been no protest or unrest by detainees during the power outage.

At around 9.30am on 5 November 2023, the Home Secretary began making arrangements for an evacuation of the site. The first coach left the centre at 11.30am but both claimants remained in their rooms until the evening. Then, staff in full tactical protection gear rushed into their cells, shouting aggressively that they needed to make their way as quickly as possible to the gym area. One of the claimants was not allowed to take any property from his room, while the other was permitted to gather a few basic items.

Just after 8pm, both claimants were evacuated from the centre on the same coach. They drove about an hour to Tinsley House IRC, one of the detention centres at Gatwick along with Brook House IRC. There, they were both held on the coach in the car park for an extraordinarily long time – one for about 18 hours, the other for more than 27 hours. Both claimants reported that the conditions on the coach were terrible: it had one small toilet between about fifty people, very little by way of food and water, and was cold.

They were both exhausted, afraid, and without their medication. By the time one of the claimants had been taken off the coach, the arthritis in his hands had become so painful that he could not close them properly. The other claimant was forced to miss a day of his HIV medication since he was held on the coach for so long.

Article 3 ECHR breach

One of the claimants had for many years been taking anti-retroviral medication to manage his HIV infection. This medication requires extremely high compliance to be effective; missing more than a day’s medication out of every month is potentially very dangerous. Nonetheless, the Home Secretary caused the claimant to miss more than a week’s medication overall, including seven consecutive days. As a consequence, the Home Secretary admitted breaching the claimant’s Article 3 ECHR rights for the way this constituted inhuman and degrading treatment.

After his evacuation to Tinsley House, the claimant warned healthcare staff that he was running low on his HIV medication, which required two separate tablets to be taken with food every day. When his supply ran out, the healthcare team failed to provide him with both doses until more than a week had passed.

In March 2019, the British HIV Association published a policy document, Immigration Detention and HIV: Advice for healthcare and operational staff, which addressed the critical importance of ensuring that detainees with HIV have an extremely high level of adherence to their treatment regimes.

After R(CSM) v SSHD [2021] EWHC 2175 (Admin), where an operational breach of Article 3 was found after the Claimant had gone without his HIV medication for 36 hours, the Home Secretary issued an internal, unpublished policy document to address specifically the management of HIV-positive detainees.

However, until the litigation in R (LC) v SSHD [2023] EWHC 319 (Admin), where an HIV-positive detainee was held without medication for 17 days, the Home Secretary had no publicly available policy or guidance for this crucial area.

On 1 November 2022, notably just prior to the Harmondsworth IRC evacuation, the Home Secretary published an updated version of the Adults at Risk in Immigration Detention caseworker guidance (Version 8.0), noting HIV as an example of a complex health condition which may require a detainee to be released if healthcare is unable to provide sufficient clinical support.

In light of this recent attention towards the specific requirements of HIV-positive detainees, the Home Secretary’s casual attitude to the claimant’s needs in this case is very troubling, both at the time of the events in question and throughout the course of the litigation.

Equality Act breaches

The Equality Act 2010 requires that a public authority must, in the exercise of its functions, have due regard to the needs of those with protected characteristics, including disabled persons, as both claimants are in this case. This requirement is known as the Public Sector Equality Duty (PSED).

The Home Secretary, however, admitted breaching the PSED by failing to make reasonable adjustments for the claimants’ disabilities when evacuating them from Harmondsworth IRC. Instead, he allowed their conditions to deteriorate, in one case by failing to ensure the claimant had access to his arthritis medication, and in the other by causing him to miss a day of his HIV medication. Both claimants suffered acute distress and humiliation as a result.

Conclusion

The Home Secretary’s concession of breaches to the PSED and Article 3 ECHR is rare, and indicates the seriousness of the failings in this case. To avoid repeating them the Home Secretary will have to implement robust evacuation plans and ensure the needs of disabled detainees are properly met.

There are, however, few signs of anything but general and widespread deficiencies in the Home Secretary’s treatment of vulnerable detainees. The case of R(MT) v SSHD CO/1267/2023, to be heard in February 2024, involves the mistreatment of a Harmondsworth IRC detainee suffering from paranoid schizophrenia, who was also caught up in the November 2023 evacuation, involving arguably even more egregious systemic failures than those brought to light by this case.

The Claimants were represented by Nick Armstrong KC of Matrix Chambers and Alex Schymyck of Garden Court Chambers, instructed by Lewis Kett, Nicholas Hughes and Dominic Chambers of Duncan Lewis Solicitors.