High Court finds that lack of free advice for immigration detainees in prison is unlawful

The High Court has found that the failure to provide access to free initial immigration advice for all immigration detainees in prisons — as is provided to detainees in Immigration Removal Centres (IRCs) under the Detained Duty Advice Scheme (DDAS) — is discriminatory.

Giving judgment in R (SM) v Lord Chancellor [2021] EWHC 418 (Admin), Swift J held that the difference in treatment between detainees in prisons and detainees in IRCs constituted unlawful discrimination contrary to article 14 of the European Convention on Human Rights (ECHR), read with articles 2, 3, 5 and 8.

The claim was brought by SM, an Afghan national held in immigration detention at HMP Leeds since 2019.

Bail for Immigration Detainees (BID) was given permission to intervene and provided the Court with detailed evidence and submissions, drawing on its experience and research, relating to the importance of legal aid immigration advice, the population of detainees held in prisons and the difficulties faced by them in obtaining advice.

Allowing the claim, the judge rejected the Lord Chancellor’s position that being an immigration detainee in prison was not a relevant status for the purposes of article 14 ECHR and that the difference in treatment was justified. In relation to the latter, the judge held that the availability of initial advice to detainees in prison was an important matter, that it could potentially be provided in a number of different ways, and that no proper consideration had been given about whether and how to do so.

Laura Dubinsky and Daniel Clarke were instructed, together with Eleanor Mitchell, by Allen & Overy to represent BID on a pro bono basis.