‘In R (MR (Pakistan)) v Secretary of State for Justice & Others, the High Court rejected a claim that the inequality in procedural protections available to vulnerable immigration detainees, which depend significantly on the venue of detention, is irrational. The nature of the decision, which fails to properly evaluate the reasons advanced for the difference, highlights two problems caused by the Supreme Court’s refusal to accept consistency as a ground of review in R (Gallaher Group Ltd) v The Competition and Markets Authority. Firstly, the lack of a clear framework for how irrationality should be applied creates a risk that judges accept tangential or irrelevant justifications for inconsistency. Secondly, by keeping consistency within the irrationality framework without any articulation of how separation of powers concerns fluctuate in different contexts, there is a risk of overly deferential decisions. In MR (Pakistan) both of these risks materialised with seriously deleterious consequences for immigration detainees held in prisons.’

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UK Constitutional Law Association, 24th February 2020

Source: ukconstitutionallaw.org