(1) In considering the Strasbourg caselaw as to the extent of the Article 2 procedural duty to investigate a suspicious death (including a death that occurs whilst in immigration detention in the United Kingdom), it is important to bear in mind that the ECtHR is concerned with the entirety of the process, beginning with the initial steps to secure evidence and ending with the actual investigation or trial. Although the investigation or trial must be conducted with the requisite degree of independence, it by no means follows that the duty to secure evidence cannot involve those such as the Secretary of State for the Home Department and her service providers, who will not be conducting the subsequent independent investigations. On the contrary, given that, in the context of a death in detention, the service providers and the Secretary of State’s relevant officials at the detention centre will inevitably be the first on the scene, they clearly must take the initial steps to secure evidence. This is so, irrespective of the fact that, in order of likely appearance, the police, the Prisons and Probation Ombudsman’s investigators and HM Coroner will also become actively involved.
(2) Furthermore, it is important to acknowledge that the ECtHR has been at pains to state that the steps to be taken are ‘reasonable’ ones. What is reasonable will depend, not only on the circumstances of the death but also the nature and purpose of the detention facility, such as whether it is holding individuals who face removal by the Secretary of State from the United Kingdom, in pursuance of her functions, conferred by Parliament, of enforcing immigration controls.
(3) The irreducible minimum obligations of the Secretary of State in this area are:
(a) to take immediate steps to ascertain whether any detainee has evidence to give regarding the death in detention;
(b) to record, or facilitate the recording of, a statement of such evidence;
(c) to determine whether the individual is willing to give evidence at the inquest;
(d) to record relevant contact details of the individual, including in the country of proposed removal; and
(e) to consider the practicability of the individual giving evidence at the inquest either (i) by returning to the United Kingdom for that purpose or (ii) by giving evidence by means of video-link.
(4) The Detention Services Order 08/2014: Death in Immigration Detention (August 2020) fails adequately to address the vital function of detention centre staff in identifying those detainees who, because of physical proximity to the deceased or other known associations, are likely to have relevant information, whether or not they have chosen to come forward of their own accord. The current policy of the Secretary of State is, therefore, not compliant with Article 2 in its procedural form.
(5) The Secretary of State’s present policy framework is also legally deficient in that there is nothing in her policy concerning removals; namely Judicial Reviews and Injunctions – Version 20.0 (10 October 2019), which guides her immigration officials to act compliantly with Article 2 in its procedural form, when making decisions as to the removal of an individual.
[2021] UKUT 114 (IAC)
Bailii
England and Wales
Updated: 17 August 2021; Ref: scu.666426 br>