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

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Paul Bowen KC DHCJ:

These are applications for judicial review brought by the Claimant MM acting by hislitigation friend, Catherine Istifanis.

Appearing before me are Ms Shu Shin Luh for the Claimant, instructed by Bhatt MurphySolicitors, and for the Defendant, Mr Jack Holborn and Mr Matthew Howarth, instructedby the Government Legal Department. I am very grateful to all of them for theirsubmissions.

The decisions under challenge

The claim involves challenges to (1) a decision to deport the Claimant taken undersection 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 thelight of that deportation decision from 11^th October 2023 until 12^th May 2024 (‘theSecond Decision’).

Grounds of judicial review

There are currently three Grounds of challenge, although the Grounds are subdivided.

Ground 1 is a challenge to the deportation decision (First Decision). TheClaimant alleges that the decision was unlawful, first, because it wasprocedurally unfair; and, second, because it involved a breach of theDefendant's reasonable adjustments duty under sections 20 and 29 of theEquality Act 2010.

Ground 2 challenges the Claimant's detention (Second Decision). The detentionwas authorised, or purportedly authorised, under paragraph 2 of schedule 3 ofthe Immigration Act 1971 as amended by section 12 of the Illegal MigrationAct 2023. The Grounds of challenge are that there has been a breach of theHardial Singh principles, as modified by section 12 of the 2023 Act. It is alsoalleged that the detention is a breach of the Defendant's own policy and violatedthe Claimant's rights under the Human Rights Act, namely Article 5, Article 3and Article 8.

Ground 3 alleges an unlawful breach of the reasonable adjustments duty undersections 20 and 29 of the Equality Act 2010, but this time in relation to thedecisions to detain and to use segregation against the Claimant (SecondDecision).

The matter came before me on Tuesday 27^th January listed for a three-day trial. Anumber of preliminary issues arose, however, some of them at a very late stage, and thefirst day of the trial was spent in oral argument on those issues. In light of thesignificance of these issues to both parties, I indicated I would give a ruling on theseapplications and that the underlying trial would need to be adjourned upon furtherdirections being made. This is my ruling.

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:

First, the Defendant seeks leave to amend her detailed grounds of defence toargue that the discrimination claim in relation to the deportation order isexcluded by operation of paragraph 16 of schedule 3 of the Equality Act 2010.In short, paragraph 16 excludes a claim for disability discrimination undersection 29 of the Equality Act in relation to certain immigration decisions,including, the Defendant submits, a decision to deport under section 3(5)(a) onthe ground that deportation is conducive to the public good. The Defendantsubmits that Ground 1 should therefore be dismissed or struck out to the extentit is based upon the Equality Act 2010. This argument emerged on the first dayof the trial after I had raised the issue with counsel by email overnight.

Second, the Defendant argues that the deportation order has now beenwithdrawn so that Ground 1 is academic, at least insofar as the public lawGrounds are concerned, and should therefore be dismissed.

Third, the Defendant argues that, so far as the claim under the Equality Act isconcerned, the appropriate forum for determination of that claim is the CountyCourt, 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 Part30.

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 basedon the individual facts of the Claimant's case, but as developed in the skeletonargument has expanded to include systemic challenges which are not pleaded.

Ground 2: false imprisonment and human rights damages claim (Second Decision)

The Defendant raises three preliminary issues requiring determination in relation toGround 2:

First, the Defendant seeks leave - for the first time today, without any writtenapplication - to raise a new argument by way of defence to Ground 2 under theBorder Security, Asylum and Immigration Act 2025, section 44.

Second, Ground 2 is in any event academic now that the Claimant has beenreleased from detention. The challenge to the lawfulness of the claim should bedismissed.

The only outstanding issue is the damages claim for false imprisonment andbreach of the Human Rights Act which is more appropriately determined in theCounty Court. The remaining aspect of Ground 2 should therefore also betransferred to the County Court under CPR Part 54.20 and CPR Part 30.

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 forjudicial review is concerned) and that the Equality Act claim is more suitably consideredin the County Court and should be transferred.

Facts

Before I turn to my consideration of those issues and applications, I will set out the factsin 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 againit is not known, by small boat. He was either apprehended or surrendered to bordercontrol officers and was removed to the Kent Intake Unit. On 31^st August 2021 he lodgedan asylum claim and then on 1^st September 2021 he was released on immigration bailwith conditions.

He was initially in the community receiving section 98 asylum support and was assistedwith an application for section 95 asylum support. On 28^th January 2022 he was arrestedand convicted of threatening behaviour, possession of a bladed article and failing toattend and received a sentence of 12 weeks which was suspended. He was released inFebruary 2022.

On 12^th May 2023 he was arrested for assault and arson. He was remanded in custodyand was later convicted at Lincoln Crown Court for arson and assault by beating andreceived a sentence of six months in prison.

On or about 2^nd October 2023 he was due to be released. The Secretary of State, theDefendant 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 schedule3 of the Immigration Act 1971. These are the decisions under challenge.

The Stage 1 Notice offered the Claimant an opportunity to make representations prior tothe making of the Stage 2 decision. It also notified the Claimant of his right to legalrepresentation. The complaint made on behalf of the Claimant in relation to the Stage 1Notice is as follows. He is a man with significant mental impairment, a fact that wasevident at the time the Stage 1 Notice was served upon him. He was incapable ofunderstanding the Notice or of making the representations that he was invited to makebefore the making of the Stage 2 notice. He should have been provided with suitablesupport to enable him to understand the notice and to make representations. The assertedbreach of that duty forms the basis of the Ground 1.

As I said, he was detained initially at HMP Lincoln until 18^th October, until anauthorisation for detention under the Immigration Act had been made which was, Iunderstand, made on 11^th October 2023, and on 18^th October 2023 he was transferredfrom HMP Lincoln to Colnbrook IRC.

Following the service of the notice to deport, the Claimant had been brought to theattention of Medical Justice, a charity that is concerned with supporting migrants. Theymade representations on his behalf and arranged for him to be represented by thesolicitors who currently represent him at Bhatt Murphy and proceedings were, in duecourse, brought against the Defendant challenging the deportation order and detention.Proceedings were also brought against the relevant local authority. Several hearings tookplace in which applications were made for interim relief requiring the Claimant to bereleased and to be suitably housed either by the local authority or by the Defendant. On24^th April 2024 an order was made by Mr Andrew Kinnear KC DHCJ directing the localauthority to provide the Claimant with suitable accommodation and he was released fromimmigration detention on 12^th May 2024. The period of detention that I understand isunder challenge ranges from the date of the detention under the authorisation of detentionon 11^th October 2023 until 12^th May 2024.

As I have indicated the Claimant suffers from significant mental impairment and therehave also been proceedings brought in the Court of Protection on his behalf. On 6^thSeptember 2024 an order was made in the Court of Protection on an interim basisdeclaring that he lacked capacity to litigate. In these proceedings he is represented by alitigation friend.

There have been further incidents that have taken place since his release fromimmigration detention which I will mention although they are not directly relevant to theoutcome of today's hearing. He was arrested on 29^th October 2024 for arson and wasremanded in custody at HMP Tameside and, while in custody, was transferred to hospitalunder section 2 of the Mental Health Act on 17^th May 2025. He has since been detainedfor treatment under section 3 of the Mental Health Act and, as I understand it, he remainsin 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 CountyCourt. 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 onthe grounds of disability by failing to make reasonable adjustments: see the Claimant’sAmended Statement of Facts and Grounds [111—112].

Ground 1 involves an allegation of a breach of the ‘first requirement’ of the duty to makeadjustments for disabled persons under s 20(3) Equality Act, which states:

In this case the relevant PCPs, at least in the context of Ground 1, are said to be thestandard processes for serving and explaining immigration decisions. The relevantdisadvantage that the Claimant, the ‘disabled person’, suffered is that he was unable tounderstand and make representations in relation to an immigration-related decision (theStage 1 Notice) without suitable support. The relevant adjustments that, it is said, theDefendant should have made include the provision of relevant support to enable theClaimant 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 reasonableadjustments: section 21(1). Section 21(2) then states: ‘A discriminates against a disabledperson if A fails to comply with [the reasonable adjustments duty] in relation to thatperson.’ One turns then to Section 29. Section 29(4) makes clear that the reasonableadjustments duty applies, materially, to a person who exercises public functions. Section29(6) then provides that ‘a person must not, in the exercise of a public function that isnot the provision of a service to the public or a sector of the public, do anything thatconstitutes discrimination’. The remedy for such discrimination is a claim for damageswhich is generally brought in the County Court (s 114) but may be brought in theAdministrative Court by way of judicial review: s 113(1).

So, on the face of it (and absent paragraph 16 of Schedule 3), the reasonable adjustmentsduty applies to ‘the exercise of a public function’ and the Defendant’s decision to deportthe Claimant is, in principle, capable of being challenged by way of a discriminationclaim 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 thedischarge of public functions under s 29 is excluded by operation of para 16 of Schedule3. This provides as follows:

The Defendant's case is that a deportation decision under section 3(5)(a) of theImmigration Act is a decision either ‘for the purposes of’ a decision to refuse leave toenter the UK for the purposes of paragraph 16(2)(b) or ‘in connection with’ such adecision within the meaning of paragraph 16(4)(a). Accordingly, the Defendant as ‘aperson exercising public functions’ cannot be liable for disability discrimination as thisis 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 cancelledin the Claimant’s case, there has been no ‘decision’ to which the exclusion in paragraph16 applies.

Although the parties advanced oral submissions in support of their positions, given thatit was only relied upon at the eleventh hour by the Defendant there are no writtenarguments and the parties frankly admit that they will need more time to research anddevelop their arguments.

In my judgment, this is a complex issue of statutory interpretation of wider publicimportance which is clearly arguable. I give leave for the Defendant to amend herdefence 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) nowacademic given D has withdrawn the deportation decision [DGD, 41] (124), GLD letterof 26.1.26 (DSK25).

I turn to the second point raised by the Defendant, namely whether the proceduralunfairness aspect of Ground 1 is now academic given that the Defendant has withdrawnthe deportation decision.

In relation to this point, the Defendant has said she will withdraw the claim but did notactually withdraw it until the second day of the hearing. I have been shown a copy ofthe decision which also makes clear that the Secretary of State is still keeping thequestion of deportation under active review. There is clearly a significant risk that thesame 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 Iwas taken yesterday, in particular Zoolife International Ltd v Secretary of State for theEnvironment, Food and Rural Affairs [2007] EWHC 2995 (Admin), paragraph 36. Thatcase (among many others) establishes that, where a decision has become academic, thecourt should determine it only in exceptional circumstances and generally only wheretwo 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 challengehas become academic. This case is not academic because there remains a significant riskthat the Claimant will be the subject of a further deportation order.

In any event, the procedural unfairness point is inextricably linked with the Equality Actcomponent of Ground 1, which clearly is not academic as it creates a statutory tortsounding in damages. The fact that the deportation order has been withdrawn does notrender 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 individualEquality 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 Courtby way of judicial review: s 113(1). The Defendant submits the claim should betransferred to the County Court; the Claimant disputes that, arguing that it should remainin the Administrative Court. The parties were not able to take me to any case-law inwhich this issue has been specifically considered. It is therefore necessary to start fromfirst principles.

The criteria to be applied in deciding whether a claim begun in the Administrative Courtshould be transferred to another court are set out in CPR Part 54.20 and CPR Part 30.CPR Part 54.20 states:

CPR Part 30 deals with the transfer of proceedings within the County Court, between theHigh Court (including, because of CPR 54.20, the Administrative Court) and the CountyCourt and within the High Court. CPR Part 30.3(2) sets out the relevant matters to whichthe court must have regard in deciding whether a claim should be transferred, whichinclude:

Sub-paragraphs (2)(b), (c), (d), (e) and (g) are of particular relevance in consideringwhether a discrimination claim should be transferred from the Administrative Court tothe County Court.

Many, if not most, discrimination claims against a public authority are moreappropriately heard in the County Court where the procedure is more suitable for fact-based challenges involving live witnesses with cross-examination. The vast majority ofclaims for judicial review proceed on the basis of written evidence only. The proceduresof the Administrative Court are not well suited to fact-finding following the testing ofevidence. Although cross-examination is available on judicial review it is very rare. TheAdministrative Court on a judicial review will usually accept the evidence of witnessesfrom the public authority and will not normally decide contested issues of fact: seeparagraph 86 of the R (on the Application of Good Law Project) v the Minister for theCabinet Office) [2022] EWCA Civ 21:

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 notreadily allow evidence to be tested and where any ‘historic’ claim of breach of EqA2010and any claim for damages could [be] brought in the County Court’. Although he wasnot 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

heard in the County Court. A discrimination claim that is concerned only with thelawfulness of a public authority’s past conduct, particularly where there are contestedissues of fact, will usually be more appropriately heard in the County Court rather thanthe Administrative Court. Applying CPR Part 30.3(2)(b), in such cases ‘it would bemore 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 casesare 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 tohear and determine discrimination claims brought by way of judicial review and therewill be some cases where that is the more appropriate forum. In my judgment, a hearingin the Administrative Court is likely to be more appropriate where there is a combinationof some, preferably all, of the following factors: (i) resolution of the issues in the claimdoes not turn on contested issues of fact which are more suitably resolved by way of oralevidence and cross-examination (see CPR Part 30.3(2)(b)); (ii) the case raises publiclaw issues that are novel and/ or complex and most suitably determined by a specialistjudge or deputy judge authorised to sit in the Administrative Court (see CPR Part30.3(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 thattransfer of the discrimination claim to the County Court would only duplicateproceedings and increase costs; and (iv) resolution of the claim is of wider publicimportance, 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 ofindividuals) 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 AdministrativeCourt that is binding on the County Court as a matter of stare decisis and which isfunctionally binding on other High Court judges applying principles of judicial comity.

In my judgment this case is clearly more suitably heard in the Administrative Courtrather than the County Court, for two reasons.

First, as the Defendant accepted, the application of the reasonable adjustmentsduty in the context of immigration decision making has not been the subject of

A decision in this case will be relevant not only to the

It is also likely to influence the development of the

Defendant’s policy in relation to reasonable adjustments for mentally impairedindividuals in the context of immigration decision making generally. Thenovelty and complexity of the issue, as well as the public benefit in a bindingjudgment of the High Court militates in favour of the claim being heard in theAdministrative Court rather than the County Court.

Second, the new defence raised by the Defendant under paragraph 16 ofSchedule 3 of the Equality Act 2010 raises an issue of statutory construction ofsome novelty, complexity and wider public importance. Determination of thatissue alone justifies determination by the Administrative Court.

The pleading point

The Defendant submits that the Equality Act Ground was not adequately pleaded. It issaid that the statements of facts and Grounds do not make it clear that the Equality ActGround is a systems challenge as opposed to a fact-based, individual challenge.

This argument is without merit.

First, the systemic nature of the challenge is apparent from paragraphs 111 to112 of the Claimant’s Statement of Facts and Grounds when read in the light ofthe legal framework and the rest of Ground 1.

Second, a claim based on a breach of the reasonable adjustments duty involvesidentification of a PCP. The Defendant appears to accept that a number of PCPsfall to be questioned by the Equality Act Grounds. As the Court of Appeal madeclear in R (VC) v Secretary of State for the Home Department [2018] 1 WLR4781 case at paragraph 157, discharge of the reasonable adjustments dutyinvolves a duty to make anticipatory adjustments to a PCP for a class ofindividuals 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 theindividual claimant but other individuals within the same class.

In my judgment, the claim as articulated is certainly wide enough to encompass the kindof systemic challenges which lie at the heart of Ground 1 as developed in the skeletonargument.

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, thatshe should be given leave to amend her defence to rely upon Section 44 of the BorderSecurity, Asylum and Immigration Act 2025; second, Ground 2 is academic and shouldtherefore be dismissed; and third, in any event, the false imprisonment part of the claimshould 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 Act2025

Under the Border Security, Asylum and Immigration Act 2025, Section 44, a furtheramendment has been made to the Defendant's powers of immigration detention underparagraph 2 of Schedule 2 of the Immigration Act. These amendments are expresslystated to be retrospective in effect (see section 44(17)). The Defendant submits that thefalse imprisonment claim must be determined in accordance with these amendments. Inthe unamended version of paragraph 2 of Schedule 2 (since October 2023), detention canonly be authorised where ‘notice has been given of a decision to make a deportationorder.’ 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 maybe authorised ‘while the Secretary of State considers whether to make a deportation orderagainst the person.’ The Defendant submits that, as a result of those amendments, adetention authorised under paragraph 2 of Schedule 2 would not be rendered unlawful

even if a notice to deport is subsequently quashed as unlawful. Moreover, by virtue s44(17) the amendments are retrospective in effect and therefore govern the lawfulnessof 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 andthe 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 claimfor false imprisonment which is dependent on the public law question of whether thedetention was unlawful. The only question is whether, as the Defendant submits, thatissue is more appropriately determined in the Administrative Court or in the CountyCourt. 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 theproposition that, in the ordinary run of cases, once immigration detention has come to anend any false imprisonment and damages claim can and should be heard in the Queen’sBench Division or County Court. The judge’s reasons are set out at paragraph 72:

Although not cited in ZA, the factors set out in CPR Part 30.3(2) (set out above) mustalso be taken into account by virtue of CPR 54.20.

In my judgment, Ground 2 is most suitably heard in the Administrative Court. This isnot 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 toallocate scarce resources appropriately and the advantages of the process for hearing liveevidence in the King’s Bench Division and County Court which is a rare occurrence inthe Administrative Court, whose procedures are not well suited to such matters forreasons I have already explored.

As to the overriding objective and the allocation of appropriate resources, I have alreadydecided 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 Part30.3(2)(c), (d), (e) and (g):

First, the new argument that the Defendant now wishes to raise concerning theamendments to paragraph 2 and 2(a) of schedule 3 of the Immigration Actintroduced by the Border Security and Asylum and Immigration Act, Section44 raises a public law issue of complexity and novelty which it is moreappropriate 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 avery real question as to the human rights compatibility of that provision. If thatprovision is incompatible, then consideration will be given to the making of adeclaration of incompatibility under s 4 Human Rights Act 1998. Such an ordercannot be made by the County Court: Section 4(5). While I have given theDefendant leave to raise this argument by way of defence, it wholly underminesher application that the case should be transferred to the County Court.

Third, Ground 2 also raises the question of how the Hardial Singh principlesare to be applied following amendments by section 12 of the Illegal MigrationAct 2023, which introduced subparagraphs 3(a) to 3(e) to the power to detainon immigration Grounds in schedule 3 paragraph 2 of the Immigration Act. Inparticular, 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 enablethe deportation order to be made or the removal carried out. I have been shownno case law that has explored the difference in the approach that this court mustnow take in determining whether that provision has been complied with.Clearly, authoritative guidance from the Administrative Court on theseamendments will be in the public interest. This is a further reason for retainingthe case in the Administrative Court.

Ground 2 should therefore remain in the Administrative Court. If there are contestedissues of fact that require resolution then the procedures of the Administrative Court arecapable of adaptation, although if the Claimant seeks to rely upon oral evidence or tocross-examine the Defendant’s witnesses a suitable application will need to be made anddetermined well in advance of the substantive hearing.

Ground 3: Equality Act 2010 claim challenge to the Claimant’s detention andsegregation (Second Decision)

Ground 3, like Ground 1, is not academic (as the Defendant appeared to concede duringthe 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 Courtapplying the criteria in CPR Part 54.20 and CPR Part 30.

I accept that there are not the same novel issues of law involved in Ground 3. That isbecause 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 hasestablished the existence of a duty to make reasonable adjustments under the EqualityAct in relation to the detention of mentally impaired migrants. I also accept that thiscase law has led to a review of government policy which is ongoing. These factors werereferred to by Mr Justice Dexter Dias in R (Medical Justice) v. Secretary of State for theHome Department [2025] EWHC 2368in September 2025. The judge refusedpermission to apply for judicial review of the Defendant’s immigration detentionprocesses. The claim was brought by Medical Justice as a public interest litigant withno supporting individual claimant. It was systemic in nature and sought to challenge theabsence of adequate support for immigration detainees who lack mental capacity.

The judge’s primary reason for refusing permission was because the Claimant ‘has notnominated any identifiable individual who has been harmed.’ So, ‘the claim lacks ameasure of specificity and any concrete exemplar to illustrate the alleged harm.’ Thejudge continued: ‘a generalised challenge to the Defendant's operational and managerialjudgment is not suitable for determination in a claim for judicial review.’ The lawfulnessof the treatment of any individual person is highly context and fact specific and ‘theconceptual 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 theconcerns raised by the Claimant about unlawfulness, but no such case is before thecourt.’ The judge then went on to identify a second reason for refusing permission, whathe referred to as a ‘core difficulty with the Claimant's approach’, which is ‘that thissituation is complex and evolving’ because ‘a new scheme is in development and underactive and ongoing consideration.’ The challenge to that scheme was premature,notwithstanding the fact that ‘this process has been protracted and has not progressedwith a hopeful expedition.’

In my judgment the present case is very different. Unlike the Medical Justice case, thisclaim is brought by an individual and will allow the Court to determine the relevantissues by reference to the specific facts of a case. It does provide the necessary factualcontext to bring into ‘vivid relief the concerns raised by the Claimant aboutunlawfulness’ of the Defendant's wider policies, as well as their application on theparticular facts of the case. Granted, the second objection in the Medical Justice can stillbe made, namely that ‘the Defendant’s new scheme is in development and under activeand 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 validobjection to the present claim which has been properly brought by an individual inrelation to the lawfulness of his past treatment where resolution of that claim is likely todetermine 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 aPCP as it applies not only to the individual claimant but also to the class of individualsto 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 notacademic, notwithstanding the Claimant has been released from detention. The fact thatthere are ongoing policy developments is not a good reason to transfer it to the CountyCourt. In any event, in view of my judgment on Grounds 1 and 2, it would be contrary

to the overriding principle to transfer Ground 3 to the County Court while Grounds 1 and2 are determined in the Administrative Court.

Conclusion and ruling

To conclude, I dismiss the Defendant's applications that Grounds 1-3 should either bedismissed as academic or transferred to the County Court. I dismiss the complaint basedon the pleadings. I give the Defendant leave to amend her defence to Ground 1 to raisethe arguments based on paragraph 16 of Schedule 3 Equality Act 2010 and to Ground 2to 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 atsuch 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 hearingfrom counsel.