MM,R (on the application of) v Secretary of State for the Home Department

Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ Paul Bowen KC DHCJ:

1.

2.

3.

4. These are applications for judicial review brought by the Claimant MM acting by his litigation friend, Catherine Istifanis. Appearing before me are Ms Shu Shin Luh for the Claimant, instructed by Bhatt Murphy Solicitors, and for the Defendant, Mr Jack Holborn and Mr Matthew Howarth, instructed by the Government Legal Department. I am very grateful to all of them for their submissions. The decisions under challenge The claim involves challenges to (1) a decision to deport the Claimant taken under section 3(5) (a) of the Immigration Act 1971 on 2 nd October 2023 ( ‘the First Decision’ ), and (2) the fact and circumstances of the subsequent detention of the Claimant in the light of that deportation decision from 11 th October 2023 until 12 th May 2024 ( ‘the Second Decision’ ). Grounds of judicial review There are currently three Grounds of challenge, although the Grounds are subdivided. a. b. c. Ground 1 is a challenge to the deportation decision (First Decision). The Claimant alleges that the decision was unlawful, first, because it was procedurally unfair; and, second, because it involved a breach of the Defendant's reasonable adjustments duty under sections 20 and 29 of the Equality Act 2010 . Ground 2 challenges the Claimant's detention (Second Decision). The detention was authorised, or purportedly authorised, under paragraph 2 of schedule 3 of the Immigration Act 1971 as amended by section 12 of the Illegal Migration Act 2023. The Grounds of challenge are that there has been a breach of the Hardial Singh principles, as modified by section 12 of the 2023 Act. It is also alleged that the detention is a breach of the Defendant's own policy and violated the Claimant's rights under the Human Rights Act, namely Article 5, Article 3 and Article 8. Ground 3 alleges an unlawful breach of the reasonable adjustments duty under sections 20 and 29 of the Equality Act 2010 , but this time in relation to the decisions to detain and to use segregation against the Claimant (Second Decision).

5. The matter came before me on Tuesday 27 th January listed for a three-day trial. A number of preliminary issues arose, however, some of them at a very late stage, and the first day of the trial was spent in oral argument on those issues. In light of the significance of these issues to both parties, I indicated I would give a ruling on these applications and that the underlying trial would need to be adjourned upon further directions being made. This is my ruling. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

6.

7. The preliminary issues I turn first to the preliminary issues as they have been identified. Ground 1: Equality Act 2010 claim (First Decision) The Defendant raises four preliminary issues: a. b. c. d. First, the Defendant seeks leave to amend her detailed grounds of defence to argue that the discrimination claim in relation to the deportation order is excluded by operation of paragraph 16 of schedule 3 of the Equality Act 2010 . In short, paragraph 16 excludes a claim for disability discrimination under section 29 of the Equality Act in relation to certain immigration decisions, including, the Defendant submits, a decision to deport under section 3(5) (a) on the ground that deportation is conducive to the public good. The Defendant submits that Ground 1 should therefore be dismissed or struck out to the extent it is based upon the Equality Act 2010 . This argument emerged on the first day of the trial after I had raised the issue with counsel by email overnight. Second, the Defendant argues that the deportation order has now been withdrawn so that Ground 1 is academic, at least insofar as the public law Grounds are concerned, and should therefore be dismissed. Third, the Defendant argues that, so far as the claim under the Equality Act is concerned, the appropriate forum for determination of that claim is the County Court, not the Administrative Court. Accordingly, if Ground 1 is not dismissed it should be transferred to the County Court under CPR Part 54.20 and CPR Part

30. A fourth point is made relating to the inadequacy of the Claimant’s pleadings. In essence, it is argued that the claim form as pleaded is limited to grounds based on the individual facts of the Claimant's case, but as developed in the skeleton argument has expanded to include systemic challenges which are not pleaded.

8. Ground 2: false imprisonment and human rights damages claim (Second Decision) The Defendant raises three preliminary issues requiring determination in relation to Ground 2: a. b. First, the Defendant seeks leave - for the first time today, without any written application - to raise a new argument by way of defence to Ground 2 under the Border Security, Asylum and Immigration Act 2025 , section 44 . Second, Ground 2 is in any event academic now that the Claimant has been released from detention. The challenge to the lawfulness of the claim should be dismissed. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/ c. The only outstanding issue is the damages claim for false imprisonment and breach of the Human Rights Act which is more appropriately determined in the County Court. The remaining aspect of Ground 2 should therefore also be transferred to the County Court under CPR Part 54.20 and CPR Part 30.

9.

10.

11.

12.

13.

14.

15. Ground 3: Equality Act 2010 challenge to the Claimant’s detention and segregation (Second Decision) The Defendant also argues that Ground 3 is academic (at least so far as the claim for judicial review is concerned) and that the Equality Act claim is more suitably considered in the County Court and should be transferred. Facts Before I turn to my consideration of those issues and applications, I will set out the facts in brief summary. The Claimant is a national of Niger. His birth date is presently unknown. He is believed to have arrived in the United Kingdom on or about 23 rd August 2021, perhaps, but again it is not known, by small boat. He was either apprehended or surrendered to border control officers and was removed to the Kent Intake Unit. On 31 st August 2021 he lodged an asylum claim and then on 1 st September 2021 he was released on immigration bail with conditions. He was initially in the community receiving section 98 asylum support and was assisted with an application for section 95 asylum support. On 28 th January 2022 he was arrested and convicted of threatening behaviour, possession of a bladed article and failing to attend and received a sentence of 12 weeks which was suspended. He was released in February 2022. On 12 th May 2023 he was arrested for assault and arson. He was remanded in custody and was later convicted at Lincoln Crown Court for arson and assault by beating and received a sentence of six months in prison. On or about 2 nd October 2023 he was due to be released. The Secretary of State, the Defendant to these proceedings, served him with a Stage 1 Liability To Deport Notice (Stage 1 Notice) and notice that he was to be detained under paragraph 2(2) of schedule 3 of the Immigration Act 1971 . These are the decisions under challenge. The Stage 1 Notice offered the Claimant an opportunity to make representations prior to the making of the Stage 2 decision. It also notified the Claimant of his right to legal representation. The complaint made on behalf of the Claimant in relation to the Stage 1 Notice is as follows. He is a man with significant mental impairment, a fact that was evident at the time the Stage 1 Notice was served upon him. He was incapable of understanding the Notice or of making the representations that he was invited to make before the making of the Stage 2 notice. He should have been provided with suitable support to enable him to understand the notice and to make representations. The asserted breach of that duty forms the basis of the Ground 1. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

16.

17.

18.

19.

20.

21. As I said, he was detained initially at HMP Lincoln until 18 th October, until an authorisation for detention under the Immigration Act had been made which was, I understand, made on 11 th October 2023, and on 18 th October 2023 he was transferred from HMP Lincoln to Colnbrook IRC. Following the service of the notice to deport, the Claimant had been brought to the attention of Medical Justice, a charity that is concerned with supporting migrants. They made representations on his behalf and arranged for him to be represented by the solicitors who currently represent him at Bhatt Murphy and proceedings were, in due course, brought against the Defendant challenging the deportation order and detention. Proceedings were also brought against the relevant local authority. Several hearings took place in which applications were made for interim relief requiring the Claimant to be released and to be suitably housed either by the local authority or by the Defendant. On 24 th April 2024 an order was made by Mr Andrew Kinnear KC DHCJ directing the local authority to provide the Claimant with suitable accommodation and he was released from immigration detention on 12 th May 2024. The period of detention that I understand is under challenge ranges from the date of the detention under the authorisation of detention on 11 th October 2023 until 12 th May 2024. As I have indicated the Claimant suffers from significant mental impairment and there have also been proceedings brought in the Court of Protection on his behalf. On 6 th September 2024 an order was made in the Court of Protection on an interim basis declaring that he lacked capacity to litigate. In these proceedings he is represented by a litigation friend. There have been further incidents that have taken place since his release from immigration detention which I will mention although they are not directly relevant to the outcome of today's hearing. He was arrested on 29 th October 2024 for arson and was remanded in custody at HMP Tameside and, while in custody, was transferred to hospital under section 2 of the Mental Health Act on 17 th May 2025. He has since been detained for treatment under section 3 of the Mental Health Act and, as I understand it, he remains in mental health detention today. Discussion in relation to the preliminary issues Ground 1: Equality Act 2010 claim (First Decision) The Defendant submits Ground 1 should either be dismissed or transferred to the County Court. She also applies to raise a new ground of defence. I will address this first. The new defence to Ground 1: para 16 of Sch. 3 Equality Act 2010 Ground 1, as pleaded, alleges that the Defendant discriminated against the Claimant on the grounds of disability by failing to make reasonable adjustments: see the Claimant’s Amended Statement of Facts and Grounds [111—112]. [112] In circumstances where the SSHD had actual (not just constructive) knowledge of MM’s potential disability, it was incumbent on him to grapple with whether and what additional support or adjustments are required before Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

22.

23.

24.

25.

26. making a decision notifying MM of his intention to deport him and serving it on him, requiring him to provide a response. The SSHD has not demonstrated, on the available documents before the Court, that she complied with her duty to make reasonable adjustments for MM in respect of his ability to understand the Stage 1 deportation decision, or to make representations in response to the decision. The SSHD has unlawfully discriminated against MM in breach of his reasonable adjustments duty in respect of his decision-making concerning MM’s deportation. Ground 1 involves an allegation of a breach of the ‘first requirement’ of the duty to make adjustments for disabled persons under s 20(3) Equality Act, which states: (3) The first requirement is a requirement, where a provision, criterion or practice [PCP] of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. In this case the relevant PCPs, at least in the context of Ground 1, are said to be the standard processes for serving and explaining immigration decisions. The relevant disadvantage that the Claimant, the ‘disabled person’, suffered is that he was unable to understand and make representations in relation to an immigration-related decision (the Stage 1 Notice) without suitable support. The relevant adjustments that, it is said, the Defendant should have made include the provision of relevant support to enable the Claimant to understand and make representations in the light of the Stage 1 decision. Section 21 of the Equality Act provides that a failure to comply, materially, with the ‘first requirement’ in Section 20(3) is a failure to comply with a duty to make reasonable adjustments: section 21(1). Section 21(2) then states: ‘A discriminates against a disabled person if A fails to comply with [the reasonable adjustments duty] in relation to that person.’ One turns then to Section 29. Section 29(4) makes clear that the reasonable adjustments duty applies, materially, to a person who exercises public functions. Section 29(6) then provides that ‘a person must not, in the exercise of a public function that is not the provision of a service to the public or a sector of the public, do anything that constitutes discrimination’. The remedy for such discrimination is a claim for damages which is generally brought in the County Court (s 114) but may be brought in the Administrative Court by way of judicial review: s 113(1). So, on the face of it (and absent paragraph 16 of Schedule 3), the reasonable adjustments duty applies to ‘the exercise of a public function’ and the Defendant’s decision to deport the Claimant is, in principle, capable of being challenged by way of a discrimination claim brought in the Administrative Court by way of judicial review. The new argument now raised by the Defendant is that any claim in relation to the discharge of public functions under s 29 is excluded by operation of para 16 of Schedule 3. This provides as follows: 16 Disability Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

27.

28.

29.

30.

31. (1) This paragraph applies in relation to disability discrimination. (2) Section 29 does not apply to— (a) a decision within sub-paragraph (3); (b) anything done for the purposes of or in pursuance of a decision within that sub-paragraph . (3) A decision is within this sub-paragraph if it is a decision (whether or not taken in accordance with immigration rules) to do any of the following on the ground that doing so is necessary for the public good— (a) to refuse entry clearance; (b) to refuse leave to enter or remain in the United Kingdom; (c) to cancel leave to enter or remain in the United Kingdom; (d) to vary leave to enter or remain in the United Kingdom; (e) to refuse an application to vary leave to enter or remain in the United Kingdom. (4) Section 29 does not apply to— (a) a decision taken, or guidance given, by the Secretary of State in connection with a decision within sub-paragraph (3); (b) a decision taken in accordance with guidance given by the Secretary of State in connection with a decision within that sub-paragraph. The Defendant's case is that a deportation decision under section 3(5) (a) of the Immigration Act is a decision either ‘for the purposes of’ a decision to refuse leave to enter the UK for the purposes of paragraph 16(2)(b) or ‘in connection with’ such a decision within the meaning of paragraph 16(4)(a). Accordingly, the Defendant as ‘a person exercising public functions’ cannot be liable for disability discrimination as this is excluded by virtue of paragraph 16(2). The Claimant disputes that. It is submitted on his behalf that there must have been a ‘decision’ within the meaning of paragraph 16(3) for paragraph 16(2)(b) or (4)(a) to bite. Given that leave to enter or remain has never been granted, refused, varied or cancelled in the Claimant’s case, there has been no ‘decision’ to which the exclusion in paragraph 16 applies. Although the parties advanced oral submissions in support of their positions, given that it was only relied upon at the eleventh hour by the Defendant there are no written arguments and the parties frankly admit that they will need more time to research and develop their arguments. In my judgment, this is a complex issue of statutory interpretation of wider public importance which is clearly arguable. I give leave for the Defendant to amend her defence to rely upon it subject to her filing and serving a suitably amended defence. Is Ground 1 (procedural unfairness in making Stage 1 deportation decision) now academic given D has withdrawn the deportation decision [DGD, 41] (124), GLD letter of 26.1.26 (DSK25). I turn to the second point raised by the Defendant, namely whether the procedural unfairness aspect of Ground 1 is now academic given that the Defendant has withdrawn the deportation decision. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

32.

33.

34.

35.

36.

37. In relation to this point, the Defendant has said she will withdraw the claim but did not actually withdraw it until the second day of the hearing. I have been shown a copy of the decision which also makes clear that the Secretary of State is still keeping the question of deportation under active review. There is clearly a significant risk that the same decision will be taken again in the Claimant’s case. I do not consider this case to be academic within the meaning of the case law to which I was taken yesterday, in particular Zoolife International Ltd v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) , paragraph 36. That case (among many others) establishes that, where a decision has become academic, the court should determine it only in exceptional circumstances and generally only where two conditions are satisfied: first, there are a large number of similar cases and, second, the outcome of the decision is fact sensitive. However, that only applies if the challenge has become academic. This case is not academic because there remains a significant risk that the Claimant will be the subject of a further deportation order. In any event, the procedural unfairness point is inextricably linked with the Equality Act component of Ground 1, which clearly is not academic as it creates a statutory tort sounding in damages. The fact that the deportation order has been withdrawn does not render the damages part of the claim academic. The only real question is whether Ground 1 should be transferred to the County Court or heard in the Administrative Court. Should Ground 1 be transferred to the County Court for determination of the individual Equality Act 2010 claim? A claim for disability discrimination can either be brought in the County Court (s 114(1)) or (at least where the claim is brought against a public body) in the Administrative Court by way of judicial review: s 113(1). The Defendant submits the claim should be transferred to the County Court; the Claimant disputes that, arguing that it should remain in the Administrative Court. The parties were not able to take me to any case-law in which this issue has been specifically considered. It is therefore necessary to start from first principles. The criteria to be applied in deciding whether a claim begun in the Administrative Court should be transferred to another court are set out in CPR Part 54.20 and CPR Part 30. CPR Part 54.20 states: 54.20 The court may— (a) order a claim to continue as if it had not been started under this Section; and (b) where it does so, give directions about the future management of the claim. (Part 30 (transfer) applies to transfers to and from the Administrative Court) CPR Part 30 deals with the transfer of proceedings within the County Court, between the High Court (including, because of CPR 54.20, the Administrative Court) and the County Court and within the High Court. CPR Part 30.3(2) sets out the relevant matters to which the court must have regard in deciding whether a claim should be transferred, which include: Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

38.

39.

40. (2) The matters to which the court must have regard include— (a) the financial value of the claim and the amount in dispute, if different; (b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court; (c) the availability of a judge specialising in the type of claim in question and in particular the availability of a specialist judge sitting in an appropriate regional specialist court; (d) whether the facts, legal issues, remedies or procedures involved are simple or complex; (e) the importance of the outcome of the claim to the public in general; (f) the facilities available to the court at which the claim is being dealt with, particularly in relation to— (i) any disabilities of a party or potential witness; (ii) any special measures needed for potential witnesses; or (iii) security; (g) whether the making of a declaration of incompatibility under section 4 of the Human Rights Act 1998 has arisen or may arise; (h) in the case of civil proceedings by or against the Crown, as defined in rule 66.1(2), the location of the relevant government department or officers of the Crown and, where appropriate, any relevant public interest that the matter should be tried in London. Sub-paragraphs (2)(b), (c), (d), (e) and (g) are of particular relevance in considering whether a discrimination claim should be transferred from the Administrative Court to the County Court. Many, if not most, discrimination claims against a public authority are more appropriately heard in the County Court where the procedure is more suitable for fact- based challenges involving live witnesses with cross-examination. The vast majority of claims for judicial review proceed on the basis of written evidence only. The procedures of the Administrative Court are not well suited to fact-finding following the testing of evidence. Although cross-examination is available on judicial review it is very rare. The Administrative Court on a judicial review will usually accept the evidence of witnesses from the public authority and will not normally decide contested issues of fact: see paragraph 86 of the R (on the Application of Good Law Project) v the Minister for the Cabinet Office) [2022] EWCA Civ 21: 86 The general rule is that the evidence of a witness is accepted unless given the opportunity to rebut the allegation made against them, or there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away so that the witness’s testimony is manifestly wrong. A court hearing a judicial review will generally accept the evidence of the public authority: and will not normally decide contested issues of fact: see, for example, R v. Board of Visitors of Hull Prison ex p St. Germain (No. 2) [1979] 1 WLR 1401 at page 1410H and R (Watkins-Smith) v. Aberdare Girls High School [2008] EWHC 1865 (Admin) , [2008] FCR 203 at [135]; R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518 at [18]). Mr. Justice Fordham made this point in R (Rowley) v Minister for the Cabinet Office (QBD) [2022] 1 W.L.R. 1179, at paragraph 16: ‘judicial review proceedings do not readily allow evidence to be tested and where any ‘historic’ claim of breach of EqA2010 and any claim for damages could [be] brought in the County Court’. Although he was not concerned there with the question of transfer, the judge’s reference to ‘historic’ claims of breach give some indication as to the cases that are more appropriately to be Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

41.

42. heard in the County Court. A discrimination claim that is concerned only with the lawfulness of a public authority’s past conduct, particularly where there are contested issues of fact, will usually be more appropriately heard in the County Court rather than the Administrative Court. Applying CPR Part 30.3(2)(b), in such cases ‘it would be more convenient or fair for hearings (including the trial) to be held’ in the County Court. That is also more likely to accord with the overriding objective which requires that cases are allotted an appropriate share of the court’s resources, see CPR Part 1.1(2)(e). Nevertheless, Parliament has conferred the jurisdiction on the Administrative Court to hear and determine discrimination claims brought by way of judicial review and there will be some cases where that is the more appropriate forum. In my judgment, a hearing in the Administrative Court is likely to be more appropriate where there is a combination of some, preferably all, of the following factors: (i) resolution of the issues in the claim does not turn on contested issues of fact which are more suitably resolved by way of oral evidence and cross-examination (see CPR Part 30.3(2)(b)); (ii) the case raises public law issues that are novel and/ or complex and most suitably determined by a specialist judge or deputy judge authorised to sit in the Administrative Court (see CPR Part 30.3(2)(c) and (d)); (iii) the discrimination claim is being brought alongside other, arguable public law claims that can only be heard in the Administrative Court so that transfer of the discrimination claim to the County Court would only duplicate proceedings and increase costs; and (iv) resolution of the claim is of wider public importance, for example where the claim is likely to affect a number of other individuals (such as a ‘systemic’ claim involving a challenge to a PCP affecting a class of individuals) or to influence the making of government policy (see CPR Part 30.3(2)(e)). In such a case there is a public benefit in an authoritative ruling from the Administrative Court that is binding on the County Court as a matter of stare decisis and which is functionally binding on other High Court judges applying principles of judicial comity. In my judgment this case is clearly more suitably heard in the Administrative Court rather than the County Court, for two reasons. a. First, as the Defendant accepted, the application of the reasonable adjustments duty in the context of immigration decision making has not been the subject of any previous judgment. A decision in this case will be relevant not only to the past treatment of the Claimant but also his and others’ treatment by the Defendant in future. It is also likely to influence the development of the b. Defendant’s policy in relation to reasonable adjustments for mentally impaired individuals in the context of immigration decision making generally. The novelty and complexity of the issue, as well as the public benefit in a binding judgment of the High Court militates in favour of the claim being heard in the Administrative Court rather than the County Court. Second, the new defence raised by the Defendant under paragraph 16 of Schedule 3 of the Equality Act 2010 raises an issue of statutory construction of some novelty, complexity and wider public importance. Determination of that issue alone justifies determination by the Administrative Court. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

43.

44. The pleading point The Defendant submits that the Equality Act Ground was not adequately pleaded. It is said that the statements of facts and Grounds do not make it clear that the Equality Act Ground is a systems challenge as opposed to a fact-based, individual challenge. This argument is without merit. a. b. First, the systemic nature of the challenge is apparent from paragraphs 111 to 112 of the Claimant’s Statement of Facts and Grounds when read in the light of the legal framework and the rest of Ground 1. Second, a claim based on a breach of the reasonable adjustments duty involves identification of a PCP. The Defendant appears to accept that a number of PCPs fall to be questioned by the Equality Act Grounds. As the Court of Appeal made clear in R (VC) v Secretary of State for the Home Department [2018] 1 WLR 4781 case at paragraph 157, discharge of the reasonable adjustments duty involves a duty to make anticipatory adjustments to a PCP for a class of individuals as well as a continuing duty to make adjustments in individual cases. A PCP is therefore a ‘system’, the lawfulness of which will affect not only the individual claimant but other individuals within the same class.

45.

46.

47. In my judgment, the claim as articulated is certainly wide enough to encompass the kind of systemic challenges which lie at the heart of Ground 1 as developed in the skeleton argument. Ground 2: false imprisonment and human rights damages claim (Second Decision) Three preliminary points were taken by the Defendant in relation to Ground 2. First, that she should be given leave to amend her defence to rely upon Section 44 of the Border Security, Asylum and Immigration Act 2025; second, Ground 2 is academic and should therefore be dismissed; and third, in any event, the false imprisonment part of the claim should be transferred to the County Court. I consider the applications in that order. The new defence to Ground 2: Section 44 Border Security, Asylum and Immigration Act 2025 Under the Border Security, Asylum and Immigration Act 2025 , Section 44, a further amendment has been made to the Defendant's powers of immigration detention under paragraph 2 of Schedule 2 of the Immigration Act. These amendments are expressly stated to be retrospective in effect (see section 44(17)). The Defendant submits that the false imprisonment claim must be determined in accordance with these amendments. In the unamended version of paragraph 2 of Schedule 2 (since October 2023), detention can only be authorised where ‘notice has been given of a decision to make a deportation order.’ If such a notice is not validly given, it follows that the detention itself is unlawful. In the new form of paragraph 2 as amended by Section 44, immigration detention may be authorised ‘while the Secretary of State considers whether to make a deportation order against the person.’ The Defendant submits that, as a result of those amendments, a detention authorised under paragraph 2 of Schedule 2 would not be rendered unlawful Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

48.

49.

50. even if a notice to deport is subsequently quashed as unlawful. Moreover, by virtue s 44(17) the amendments are retrospective in effect and therefore govern the lawfulness of the Claimant’s detention, even though the new provision was not in force at the time. This is clearly a novel and important issue and, notwithstanding the late application and the absence of any written application, I give the Defendant leave to amend her defence, subject to a suitable written amendment being filed and served. Is Ground 2 academic or should it be transferred to the County Court? In my judgment Ground 2 is not academic because there is an outstanding damages claim for false imprisonment which is dependent on the public law question of whether the detention was unlawful. The only question is whether, as the Defendant submits, that issue is more appropriately determined in the Administrative Court or in the County Court. The Defendant relied upon the observations of Lord Justice Dingemans in R. (ZA (Pakistan)) v Secretary of State for the Home Department [2020] EWCA Civ 146 for the proposition that, in the ordinary run of cases, once immigration detention has come to an end any false imprisonment and damages claim can and should be heard in the Queen’s Bench Division or County Court. The judge’s reasons are set out at paragraph 72: The overriding objective requires that cases are allotted an appropriate share of the court’s resources, see CPR Part Part 1.1(2)(e). Parties are required to help the court to further the overriding objective, see CPR Part Part 1.3. Therefore, once the appellant had been released from detention both parties should have addressed their minds to the issue of whether the claim should have been transferred either to the Queen’s Bench Division or the County Court. There would also have been many advantages in such a transfer for both the Appellant and Respondent. So far as the Appellant is concerned there would have been no need to obtain permission to bring the claim, and there were contested issues about the grant of permission to apply for judicial review in this case, because there would have been unfettered access to the Queen’s Bench Division or County Court. There would have been a process for calling witnesses and for cross examination. This would have meant that the Appellant could give oral evidence in support of his case that he had disclosed the fact that he was depressed to the nurse at Larne House Short Term Holding Facility. As it was the judge rejected this evidence contained in a witness statement without hearing the Claimant crossexamined because of the inconsistency of the Appellant’s evidence with the contemporaneous notes of the examination. 73. Although not cited in ZA , the factors set out in CPR Part 30.3(2) (set out above) must also be taken into account by virtue of CPR 54.20. In my judgment, Ground 2 is most suitably heard in the Administrative Court. This is not a case of the kind that Lord Justice Dingemans was concerned with in the ZA case. Chief among the factors that he identified are the overriding objective and the need to allocate scarce resources appropriately and the advantages of the process for hearing live evidence in the King’s Bench Division and County Court which is a rare occurrence in the Administrative Court, whose procedures are not well suited to such matters for reasons I have already explored. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

51.

52. As to the overriding objective and the allocation of appropriate resources, I have already decided that Ground 1 must be heard in the Administrative Court. A transfer of Ground 2 to the County Court would simply take up more resources, not less. There are two further reasons for that conclusion applying the factors in CPR Part 30.3(2)(c), (d), (e) and (g): a. b. c. First, the new argument that the Defendant now wishes to raise concerning the amendments to paragraph 2 and 2(a) of schedule 3 of the Immigration Act introduced by the Border Security and Asylum and Immigration Act, Section 44 raises a public law issue of complexity and novelty which it is more appropriate for the Administrative Court to decide. Second, whether Section 44 applies retrospectively, as section 44(17) envisages, is not only a novel and complex issue but, as Ms Liu submitted, also raises a very real question as to the human rights compatibility of that provision. If that provision is incompatible, then consideration will be given to the making of a declaration of incompatibility under s 4 Human Rights Act 1998 . Such an order cannot be made by the County Court: Section 4(5) . While I have given the Defendant leave to raise this argument by way of defence, it wholly undermines her application that the case should be transferred to the County Court. Third, Ground 2 also raises the question of how the Hardial Singh principles are to be applied following amendments by section 12 of the Illegal Migration Act 2023, which introduced subparagraphs 3(a) to 3(e) to the power to detain on immigration Grounds in schedule 3 paragraph 2 of the Immigration Act. In particular, it is now a question for the Secretary of State, rather than the court, to determine the reasonableness of the period of detention necessary to enable the deportation order to be made or the removal carried out. I have been shown no case law that has explored the difference in the approach that this court must now take in determining whether that provision has been complied with. Clearly, authoritative guidance from the Administrative Court on these amendments will be in the public interest. This is a further reason for retaining the case in the Administrative Court.

53.

54. Ground 2 should therefore remain in the Administrative Court. If there are contested issues of fact that require resolution then the procedures of the Administrative Court are capable of adaptation, although if the Claimant seeks to rely upon oral evidence or to cross-examine the Defendant’s witnesses a suitable application will need to be made and determined well in advance of the substantive hearing. Ground 3: Equality Act 2010 claim challenge to the Claimant’s detention and segregation (Second Decision) Ground 3, like Ground 1, is not academic (as the Defendant appeared to concede during the hearing) because there is an extant claim for damages under the Equality Act 2010 . The real question, again, is whether this case should be heard here or in the County Court applying the criteria in CPR Part 54.20 and CPR Part 30. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

55.

56.

57. I accept that there are not the same novel issues of law involved in Ground 3. That is because there has been a succession of case law since the Court of Appeal decision in R (VC) v Secretary of State for the Home Department [2018] 1 WLR 4781 that has established the existence of a duty to make reasonable adjustments under the Equality Act in relation to the detention of mentally impaired migrants. I also accept that this case law has led to a review of government policy which is ongoing. These factors were referred to by Mr Justice Dexter Dias in R (Medical Justice) v. Secretary of State for the Home Department [2025] EWHC 2368 in September 2025. The judge refused permission to apply for judicial review of the Defendant’s immigration detention processes. The claim was brought by Medical Justice as a public interest litigant with no supporting individual claimant. It was systemic in nature and sought to challenge the absence of adequate support for immigration detainees who lack mental capacity. The judge’s primary reason for refusing permission was because the Claimant ‘has not nominated any identifiable individual who has been harmed.’ So, ‘the claim lacks a measure of specificity and any concrete exemplar to illustrate the alleged harm.’ The judge continued: ‘a generalised challenge to the Defendant's operational and managerial judgment is not suitable for determination in a claim for judicial review.’ The lawfulness of the treatment of any individual person is highly context and fact specific and ‘the conceptual problems argued for by the Claimant presently lack clear and concrete focus.’ On the other hand, ‘it may be that a relevant case would bring into vivid relief the concerns raised by the Claimant about unlawfulness, but no such case is before the court.’ The judge then went on to identify a second reason for refusing permission, what he referred to as a ‘core difficulty with the Claimant's approach’, which is ‘that this situation is complex and evolving’ because ‘a new scheme is in development and under active and ongoing consideration.’ The challenge to that scheme was premature, notwithstanding the fact that ‘this process has been protracted and has not progressed with a hopeful expedition.’ In my judgment the present case is very different. Unlike the Medical Justice case, this claim is brought by an individual and will allow the Court to determine the relevant issues by reference to the specific facts of a case. It does provide the necessary factual context to bring into ‘vivid relief the concerns raised by the Claimant about unlawfulness’ of the Defendant's wider policies, as well as their application on the particular facts of the case. Granted, the second objection in the Medical Justice can still be made, namely that ‘the Defendant’s new scheme is in development and under active and ongoing consideration’. That is plainly a valid objection to the kind of ‘generalised’ claim in the Medical Justice case or one that is otherwise academic. But it is not a valid objection to the present claim which has been properly brought by an individual in relation to the lawfulness of his past treatment where resolution of that claim is likely to determine the lawfulness of his, and others’, treatment in future. As with Ground 1, resolution of the discrimination claim requires the Court to rule on the lawfulness of a PCP as it applies not only to the individual claimant but also to the class of individuals to which he belongs. That claim is arguable and has been given permission to proceed. The claim includes a claim for damages under the Equality Act and is therefore not academic, notwithstanding the Claimant has been released from detention. The fact that there are ongoing policy developments is not a good reason to transfer it to the County Court. In any event, in view of my judgment on Grounds 1 and 2, it would be contrary Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/

58. to the overriding principle to transfer Ground 3 to the County Court while Grounds 1 and 2 are determined in the Administrative Court. Conclusion and ruling To conclude, I dismiss the Defendant's applications that Grounds 1-3 should either be dismissed as academic or transferred to the County Court. I dismiss the complaint based on the pleadings. I give the Defendant leave to amend her defence to Ground 1 to raise the arguments based on paragraph 16 of Schedule 3 Equality Act 2010 and to Ground 2 to raise the point based on the Border Security, Asylum and Immigration Act 2025 , section 44. Given the fact the Defendant’s applications to amend have been made at such a late stage it is impractical and inappropriate for me to continue to try this claim. I therefore adjourn the trial and will make directions for the resumed trial after hearing from counsel. Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE www.epiqglobal.com/en-gb/