Alex Schymyck of the Garden Court Public Law Team and Nick Armstrong KC of Matrix Chambers are acting for the claimants.
Counsel instructed by Lewis Kett, Nicholas Hughes and Dominic Chambers of Duncan Lewis.
Two claimants have been granted permission to challenge their treatment and the Home Office’s evacuation response, following a total power cut at Harmondsworth Immigration Removal Centre in November 2022, by the High Court.
The claimants are calling for an independent and effective investigation into events, compliant with Article 3 of the European Convention on Human Rights (ECHR).
Harmondsworth IRC is Europe’s largest immigration detention facility and can hold up to 676 adult male detainees. It was built largely to a Category B prison standard. It is currently run by Mitie Care and Custody on behalf of the Home Office.
The claimants were being held at Harmondsworth IRC when, late on Thursday, November 3, 2022, the centre suffered a complete loss of power followed by a loss of water. This meant no lighting or heating, toilets did not flush and began to smell, and detainees could not wash themselves or clean their teeth. Cell bells could not be used to summon officers for assistance and detainees were kept in their cells for prolonged periods of time without support. Only limited and basic food supplies were provided. There were reports on the evening of Friday, November 4, that many detainees were locked outside by officers in the courtyard in freezing conditions after protesting their conditions.
It was also reported by the Home Office at that time that detainees had caused a disturbance and damaged the centre during power-cut. At the time of events, Immigration Minister Robert Jenrick blamed detainees for being “perpetrators” of the disturbance and that those involved “would be held to account and, where appropriate, removed from the country as swiftly as practicable”, claiming there was “clear evidence of unacceptable levels of violence and disorder”.
However, a subsequent freedom of information response by the Home Office provided to Medical Justice on December 30, 2022, confirmed that, other than a food refusal protest, there was “no other protest or disturbance relating to the power outage”, indicating the Immigration Minister was wrong to suggest there was clear evidence of violence and disorder by detainees.
A full emergency evacuation of Harmondsworth started on Saturday, November 5, with detainees placed on coaches before eventually being taken to other centres. Detainees reported being held on coaches for up to (and in some cases beyond) 24 hours because there was no forward planning on which centres they would be transferred to and ensuring they could be received and processed on arrival.
Subsequent freedom of information disclosure confirms a Building Survey report was carried out on behalf of the Home Office on November 30, 2022. It found that the prolonged power cut was entirely preventable, noting a “lack of preventative routine maintenance of some of the key components of the electrical infrastructure and a shortfall in the generator testing regimes have been the main contributing reasons to the issues that were experienced during the power outages.” FOI documents from Mitie, who run the centre, confirmed the issues and faults had been present since 2009 meaning the power failure could have happened at any point since then.
The claimants – anonymised in proceedings as AJ and AK – were both held at Harmondsworth during the power cut and transferred to Tinsley House IRC by coach over November 5-6, 2022. AJ has HIV and requires daily anti-retroviral medication to manage his illness. During the evacuation, AJ was held on a coach for over 24 hours before being allowed to enter Tinsley House. He did not have access to his medication on the coach, and, due to failures by the Home Office and their contractors, his full HIV medication was not transferred with him.
The British HIV Association published a guidance document in 2019 on the treatment of HIV in immigration detention. It stresses the need for at least 95% adherence to medication being required because missed doses compromise the efficacy of therapy and can lead to drug resistance, which limits future treatment options – the equivalent of being allowed to miss one day a month. AJ did not have his medication for approximately a week.
His co-claimant, AK, was one of the individuals caught up in the protest in the courtyard on Friday evening and reports being locked outside by staff for hours in freezing conditions. He was on the same coach to Tinsley House as AJ and reports being held for around 18 hours before he was allowed to disembark. He also missed medication as a result of the lack of planning around the evacuation.
The claimants brought judicial review proceedings in December 2022, arguing that:
1. The Home Secretary is in breach of investigative duties under Article 3 ECHR and the Equality Act 2010 in failing to undertake an effective, independent and public-facing investigation into events at Harmondsworth IRC that would also allow those detainees affected to participate. The Home Office to date have confirmed that there has only be internal ‘lessons-learnt’ reviews, which are ongoing and have not been shared with the claimants;
2. The Home Secretary is in breach of her systems duty under Article 3 in respect of her failures to put in a system that would ensure AJ had safe access to his HIV medication at all times. She failed to comply with the judgment in (CSM) v SSHD [2021] 4 WLR 110 on the management of HIV in detention;
3. That the management and treatment of the claimants during the Harmondsworth power cut, and the emergency evacuation, were in breaches of Article 3 and 8 ECHR and their rights under the Equality Act 2010. There were no evacuation plans for how to manage those with disabilities and what reasonable adjustments were required;
4. They were otherwise unlawfully detained under common law and policy. They are both highly vulnerable individuals who had little prospect of being removed within a reasonable period of time.
Permission for judicial review was granted to AJ and AK by Mrs Justice Lang on April 5, 2023. Their cases will proceed to a final hearing later in the year.
We are grateful for the evidence and support to date of Medical Justice, Detention Action and Bail for Immigration Detainees (BID) in bringing this challenge.
Press Coverage: The Guardian
The above content has been reproduced from a Duncan Lewis press release.
