Queen’s Bench Division, Administrative Court, Lang J, [2022] EWHC 2007 (Admin), 28 July 2022

This case concerned a challenge to the arrangements for providing access to publicly funded legal services for detainees at the women’s immigration removal centre (IRC) of Derwentside, County Durham. The IRC is located some distance from any airport of major city and, as a result of difficulties in securing solicitors to cover the publicly funded Detained Duty Advice Scheme (DDAS), interim arrangements had been put in place under which detainees at Derwentside were not entitled to in-person visits under the DDAS between December 2021 and July 2022. By contrast, detainees held in male IRCs were entitled to face-to-face DDAS visits during this period.

The grounds on which the claimant relied included alleged breaches of ss29 EqA (discrimination in access to services) and 149 (the PSED) as well as the HRA (Articles 14 and 2, 3, 4, 5, 6 or 8). An Equality Impact Assessment related to the opening of Derwentside had recognised that the impact of the IRC’s isolated location on access to face-to-face meeting with advice providers might impact disparately on grounds of race but concluded that the opening of the women-only IRC was “a proportionate means of achieving the legitimate aim of developing the detention estate in an appropriate manner across the UK.”

Lang J was satisfied on the evidence that the defendant had complied with the PSED, ruling at §133 that video-conferencing was equivalent to face-to-face provision and, that because in-person surgeries at male IRCs had also been largely replaced by electronic means of communication during the Covid 19 pandemic, “the disparity in treatment … was insignificant”. This finding also defeated the s29 EqA challenge, the Judge finding that the claimants had failed to establish that women in Derwentside had been treated less favourably than male detainees elsewhere.

Lang J went on to rule that, had she found any less favourable treatment, the defendant would have been entitled to rely on Schedule 3 paragraph 26 EqA, which permits the provision of single-sex services where a joint service would be less effective. The defendant was entitled to conclude that women should be detained separately from men and (§137) “the choice of Derwentside was [as the EIA had concluded] ‘a proportionate means of achieving a legitimate aim: seeking to ensure that the immigration detention estate has the right amount of capacity, is fit for purpose and flexible, and serves the whole of the UK whilst minimising the cost to the public purse where possible’.” This being the case, and the absence of face-to-face visits having come about under interim arrangements required by the failure of the DDAS tendering process, “To the extent that the legal services were provided differently for female detainees between January and July 2022, the interim contingency arrangements were a proportionate means of achieving a legitimate aim, namely, the move to Derwentside: (§138).

Claimants: Alex Goodman and Miranda Butler, instructed by Duncan Lewis Solicitors Ltd

Defendant: Thomas Roe QC and Simon P G Murray, instructed by the GLD