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Permission to Appeal granted by Court of Appeal in TM (Kenya)

Related Member(s):
Hugh Southey QC, Eleanor Mitchell
Related Practice Area(s):
Immigration, Asylum and Free Movement

The Court of Appeal has granted permission to appeal in the case of TM (Kenya) v SSHD (C4/2017/3270), which challenges the High Court judgment in Muasa v SSHD [2017] EWHC 2267 insofar as it found against the Claimant.

Muasa, which was heard by the High Court in July 2017, was the first case of its kind to challenge the legal and policy framework governing the use of segregation in immigration detention (known as “removal from association”). It concerned the case of TM, a Kenyan national who was held in segregation for approximately 28 hours in Yarl’s Wood IRC in the lead-up to a planned removal to Kenya. She sought to challenge the entire period of segregation and, in doing so, to challenge the Secretary of State for the Home Department’s (SSHD’s) failure to develop and publish a formal policy or guidance in relation to segregation decisions on the basis that this was contrary to the common-law requirement of clarity and transparency.

The High Court part-allowed TM’s application for judicial review, finding that the SSHD’s decision to segregate her beyond 24 hours was not properly authorised and so was unlawful and in breach of her right to respect for private life under Article 8 of the European Convention on Human Rights.

However, the Court refused TM’s application in respect of the initial 24-hour period, finding it to have been properly authorised; still more worryingly, it found that the absence of evidence from the SSHD meant it could not reach a conclusion as to whether the reasons decision to segregate was rational and proportionate. The Court also rejected the argument that the lack of policy was unlawful, but found there to be “a need for guidance to decision makers and to detainees and their advisers as to some of the issues which may require to be considered in deciding whether the test [for segregation] is made out.” By her application for permission to appeal, TM challenged each of these conclusions.

The Court of Appeal has granted TM’s application for permission to appeal on all three grounds. The appeal is likely to be heard in late 2018/early 2019 and will address wider issues of public importance that go beyond the immigration detention context, including:

  1. whether there is any distinction to be made between “policy” and “guidance” documents in the context of the common-law requirements of clarity and transparency;
  2. whether the Court can decline to determine or grant permission in respect of a ground of claim due to lack of evidence produced by a Defendant to justify a decision; and
  3. whether individuals making segregation decisions on behalf of the SSHD need to be both external to the relevant detention centre, and sufficiently senior within the Home Office.

TM is represented by Lewis Kett, a solicitor in Duncan Lewis’ Public Law Department, and counsel Hugh Southey QC and Eleanor Mitchell of Matrix Chambers.