23 July 2019

Immigration detention system is in breach of equality act 2010

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In the case of R (ASK) v Secretary of State for the Home Department [2019] EWCA Civ 1239 The Court of Appeal ruled that home office is in breach of Equality Act 2010 when it comes to protecting detainees with mental health problems.

The appeal concerned two men, known as ASK and MDA, who lacked legal capacity to challenge their detention due to mental illness.

A similar design was promulgated last year which also resulted in a finding of unlawful discrimination towards detainees with mental illness. Unfortunately nothing is being done to improve the system after almost 18 months since these finding were first handed down in

R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57.

This lack of change is also acknowledged by Lord Justice Hickinbottom in his remarks in R(ASK).

Lord Justice Hickinbottom wrote:

……ASK’s case is not materially different from the cases of VC or MDA. Because of his illness, ASK suffered from a disability. It seems likely that, from time-to-time, he lacked the capacity properly to engage with the detention authorities in relation to important decisions that related to him, e.g. with regard to his continuing detention, segregationnd and non-transfer to hospital. In those respects, he was treated differently from those detainees who were not disabled. In breach of the PSED [Public Sector Equality Duty], the Secretary of State failed to have due regard to eliminate discrimination. Further, the duty on the Secretary of State to make reasonable adjustments having arisen, no adjustments were made and obvious adjustments (e.g. in the form of IMCA-type representation) could have been made. The burden was therefore on the Secretary of State to show he had complied with the duty to make such adjustments; and he adduced no evidence that he had even considered such adjustments and certainly no evidence that he had complied with the duty.

Lawyers in both cases have asked home office to make necessary changes to stop discrimination towards immigrant detainees with mental illness.

What can Connaughts do for you?

We have a very experienced and qualified team to deal with all type of detention matters including detainees with mental health problems. Please feel free to contact our legal team and we are happy to help.

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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