Detained Duty Advice Scheme held to be discriminatory towards detainees in prison


Re: R (SM) v Bail for Immigration Detainees [2021] EWHC 418 (Admin)

Persons detained under Immigration Act powers in Immigration Removal Centres have access to legal advice under the Detained Duty Advice Scheme (“the DDAS”). The DDAS was established by the Lord Chancellor in exercise of his powers under the Legal Aid Sentencing and Punishment of Offenders Act 2012. Has the Lord Chancellor acted unlawfully by failing to make similar provision for those detained under Immigration Act powers who are held in prisons? The Claimant, an Afghan national who entered the United Kingdom illegally in April 2008 contends that the lack of provision equivalent to the DDAS for Immigration Act detainees held in prison amounts to unlawful discrimination contrary to the requirements of ECHR article 14 read together with articles 2, 3, 5 and 8.

Held: the Claimant’s case succeeds. The failure to afford immigration detainees held in prison access to publicly-funded legal advice to an extent equivalent to that available to immigration detainees held in Immigration Removal Centres under the DDAS, is in breach of Convention rights.

The Claimant is correct to submit that the judgment in Clift v United Kingdom supports a more flexible approach to the scope of other status under article 14. When considering whether immigration detainees and prisoners are in analogous situations and when evaluating evidence on justification, deciding what matters must be driven by the particular complaint that is made. The Claimant’s contention in this case is about brief access to publicly funded legal advice that is not conditional on either the financial resources requirement or the merits requirement generally applied under LASPO. The 30-minute surgery-style appointments available under the DDAS provide an opportunity for advice on matters that may be of immediate concern, such as the opportunity for a bail application, and may also be a gateway for an immigration detainee to access general advice on his immigration position. So far as concerns these matters, Immigration Act detainees held in prisons are in an analogous position to their counterparts held in IRCs.

Chris Buttler and Eleanor Mitchell were involved in this case.