*Image taken from Home Office breaching human rights law by failing to investigate detainee deaths, court rules | The Independent

Every time I deliver a session on human rights law, whether it is to a group of self-advocates, social workers, mental health staff or parent-carers, I always tell them about where human rights come from and why we have them in the first place. This information is essential to know when we think about why we have human rights, and how they work, today.

Never Again

At the end of the Second World War, the international community came together as the United Nations (UN) and said: “never again”. Never again will we allow the horrors that we saw during the war to repeat. Never again will we let democratically elected governments decide who is human and who is not, who has rights and who does not. So, these countries, at the UN, decided upon what was essentially a rule book for how states should treat the people that live within them. This rulebook was the Universal Declaration of Human Rights, which directly influenced the European Convention of Human Rights (ECHR) and our own Human Rights Act (which incorporates the rights of the ECHR into UK law).

A “Rule Book” for the State

If we look at the history of human rights, it’s clear why they exist, to protect the individual in our interactions with the state (in the UK the Human Rights Act says that “the state” includes public bodies and charities, companies and not for profits that are “preforming public functions”). Whenever an individual interacts with the state there is a power imbalance where the state is much more powerful. Human rights, and the Human Rights Act in particular, are there to ensure that we, as individuals, can expect a basic standard of treatment when we interact with the state, for example a public service. We can expect to be treated with dignity, treated with respect, treated fairly and be listened to.

This power imbalance is even greater when the person is detained in someway by the state. For example, if you are detained in a mental health hospital, if you are in prison or if you are in immigration detention.

The Legal Duty

The Human Rights Act puts a legal duty on the state to respect and protect human rights across their actions, decisions, policies, services. This duty has three parts, public services as state bodies must:

  1. Respect your human rights. This means they should not stop you from having your rights except for very special reasons (for example, to protect you or others from serious harm).
  2. Protect your human rights. This means they should do what needs to be done to protect you. This is sometimes called safeguarding.
  3. Fulfil your human rights. This means they should look into why you are not getting your rights when things go wrong to stop it from happening again.

 You can read more about how the Human Rights Act works here (in Easy Read).

Oscar Okwurime's Right to Life 

This week, an important legal case about the death of a man in immigration detention was decided. On 12 September 2019, a man called Oscar Okwurime was found dead in his room at an Immigration Removal Centre in Harmondsworth. Oscar died of a spontaneous subarachnoid hemorrhage at around 11pm, the night before. It was found that:

“Mr. Oscar Lucky Okwurime died of a spontaneous subarachnoid haemorrhage which can rupture due to hypertension. His blood pressure reading on 22nd August 2019 demonstrated Grade II hypertension. This reading was not repeated due to multiple failures to adhere to healthcare policy. Given the multiple opportunities to repeat this basic medical test on a vulnerable person, neglect contributed to the death.”

Our right to life, protected by Article 2 in the Human Rights Act, is fundamental to us all. As a legally protected human right, our right to life places a 3-part duty on state officials to 1) not take life; 2) to take reasonable steps to protect someone whose life is at immediate, known risk (or the state officials should have known life was at risk); and 3) to ensure an independent and effective investigation where someone’s right to life has not been respected or protected by the state.

Clearly, when someone dies when they are being detained by the state, there are significant human rights questions that need to be asked. Were reasonable steps to protect the person’s life taken? Is this being effectively investigated?  In Oscar’s case, there was a key witness to his death, Mr. Ahmed Lawal. However, the Home Office, the government department responsible for immigration detention, tried to deport Ahmed, without his giving evidence about Oscar’s death.

Ahmed took the Home Secretary (Priti Patel) to court for this decision using a process called Judicial Review. Judicial Review is a process in the UK where a court is asked to look at a decision made by the state to decide whether it was lawful or not. Ahmed and his lawyers argued that as Oscar died whilst in detention, the duty in the right to life to investigate, should apply. This means that an effective and independent investigation should take place into Oscar’s death. Ahmed and his lawyers argued that this investigation could not happen properly, if Ahmed, a key witness, could not give evidence as he had been deported. You can read more about the right to life and how it works here (also in Easy Read).

What did the Court say?

The Court agreed with Ahmed and his lawyers, that the Home Secretary’s decision to deport Ahmed, and the policy in place at the time of his death in September 2019, was not compatible with the investigative duty in the right to life as it failed to take reasonable steps to secure his evidence relating to Oscar's death before starting removal proceedings. The Court found that the focus of this policy was on staff and their evidence whereas it should be on detainees and the evidence they might have.

The Court also found that a new replacement policy from August 2020 was an improvement, but the changes are inadequate to eliminate the real risk of a breach of the right to life in Article 2 of the Human Rights Act. This is because it does not say that staff need to be proactive in identifying people who may have evidence to provide and instead relies upon detainees coming forward themselves. The policy does not address the fact that staff at immigration centres have a vital function in identifying detainees likely to have relevant information.

Finally, the Court found that the Home Secretary’s current policy was “legally deficient” in terms of protecting the right to life. This is because it does not provide a process for immigration officials making decisions on deportations of persons with potentially relevant information about a death in the custody at their facility.

A Basic Standard of Treatment and Accountability 

When we’re in the hands of state officials, whether that is mental health services, the police or immigration detention, the Human Rights Act means we should have our rights respected, protected and fulfilled. This includes our most fundamental human right, the right required for us to enjoy all of our other rights, the right to life.

However, we know this doesn’t happen all the time. This didn’t happen in Oscar’s case. The fulfil duty within the Human Rights Act, is crucial here as it means that there should be accountability when things go wrong and learning must come from mistakes so that such things never happen to anyone else.

One of the mechanisms for making sure that this happens is Judicial Review, the process that was used by Ahmed in this case. The UK Government recently set up a panel to do an Independent Review on Administrative Law (IRAL) which looked at the use of Judicial Review in the UK. You can read the evidence we shared with the panel on the importance of Judicial Review in protecting human rights here. In March 2021, the IRAL panel published a report of their findings and recommendations on Judicial Review reform, which overall concluded that the checks and balances of the Judicial Review system are currently working well.  In response, the UK Government has published a written response and opened a new consultation.