4Treatment of vulnerable adults in detention
Introduction
98.This chapter explains and examines the current government policies in place to safeguard adults who are at risk of harm in immigration detention. These include the Adults at Risk (AAR) policy and Rule 35 of the Detention Centre Rules 2001. The Chapter also addresses the alarming rise in alleged self-inflicted deaths in immigration detention and how the Government can provide greater transparency.
The Shaw independent reviews
99.In 2015 Stephen Shaw, a former Prisons and Probation Ombudsman, was asked by the then Home Secretary to conduct a review of the welfare of vulnerable people in detention. His review was published in January 2016 and contained 64 recommendations for reform. Shaw concluded:
There is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform.130
100.To inform his thinking, Shaw commissioned Professor Mary Bosworth to conduct a literature review on the impact of immigration detention on mental health. Two of her key findings were:
- There is a consistent finding from all the studies carried out across the globe and from different academic viewpoints that immigration detention has a negative impact upon detainees’ mental health and;
- The impact on mental health increases the longer detention continues.131
101.Shaw concluded that Bosworth’s literature review, “demonstrates incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability [ … .] a policy resulting in such outcomes will only be ethical if everything is done to mitigate the impact, and if countervailing benefit of the policy can be shown”.132 He recommended the Home Office develop alternatives to detention and give consideration to ways of strengthening the legal safeguards against excessive length of detention.
102.In 2018, Stephen Shaw published a follow-up review assessing the Government’s implementation of his recommendations. He found that although the Government had shown a clear commitment to the broad thrust of his previous recommendations, there was a gap between policy and practice. The report noted that over half of detainees are ultimately released into the community, and stated that “ [ … ] very frequently, detention is not fulfilling its stated aims”.133
Detention Action noted that this brought into question the purpose of their detention.134
Adults at Risk (AAR) policy
103.In response to the first Shaw review, the Government pledged to introduce a new ‘adult at risk’ concept into decision-making on immigration detention with a clear presumption that people who are at risk should not be detained. The new Adults at Risk (AAR) policy is underpinned by section 59 of the Immigration Act 2016. This required the Home Secretary to issue guidance for assessing whether an individual would be particularly vulnerable if detained and for making decisions to detain in such cases. The Government also stated its expectation that the AAR policy would “lead to a reduction in the number of vulnerable people detained, to a reduction in the length of time for which people are detained generally, to a quicker and more efficient use of the detention estate and, as a result, to an improvement in the welfare of those detained”.135
In responding to Shaw’s report, the Government also made specific commitments on torture:
We will also strengthen our processes for dealing with those cases of torture, health issues and self-harm threats that are first notified after the point of detention, including bespoke training to GPs on reporting concerns about the welfare of individuals in detention and how to identify potential victims of torture.136
104.In oral evidence to the Committee, Stephen Shaw told us that he “did not call for Adults at Risk” and that he had been more conservative in his recommendation which was “about changing the way the then existing framework operated”. Although he believed the policy had “a huge amount of potential”, he found during the course of his second review that despite “significant investment both of time and of money in developing the Adults at Risk policy” it was not delivering what he had assumed the Home Office, or he, had anticipated, which was “a reduction in the number of vulnerable people in detention”.137
105.The Home Office statutory guidance, and the AAR caseworker guidance replaced the previous vulnerability policy as laid out in Chapter 55.10 of the Enforcement Instructions and Guidance on Detention and Temporary Release (EIG 55.10).138
The previous policy listed set categories of people who are “normally considered suitable for detention in only very exceptional circumstances”.139
Criticism of the AAR policy
106.The AAR policy was implemented on 12 September 2016. The policy guidance immediately drew criticism from NGOs working with torture survivors and immigration detainees.140They raised concerns that it would lead to a worsening of protection from detention for vulnerable individuals, because of the increased evidential burden it placed on vulnerable people and the wide range of factors that would be weighed against evidence of vulnerability. A summary of the key points in the AAR statutory guidance are outlined in the text box below.
SUMMARY OF THE ADULTS AT RISK STATUTORY GUIDANCE141
Lists indicators of risk:
1)Suffering a mental health condition or impairment or post-traumatic stress disorder; suffering from serious physical disability, health conditions or illnesses; having been the victim of torture, sexual or gender-based violence, human trafficking or modern slavery; being pregnant, aged over 70 or being a transsexual or intersex person, or “other unforeseen, conditions and experiences”.
Guidance for consideration of other relevant conditions or experience (relating to indicators of risk):
2)The above list is not intended to be exhaustive. Any other relevant condition or experience that may render an individual particularly vulnerable to harm in immigration detention, and which does not fall within the above list, should be considered in the same way as the indicators in that list. In addition, the nature and severity of a condition, as well as the available evidence of a condition or traumatic event, can change over time.
Sets out levels of evidence of risk to be considered in identifying a person at risk:
3)Level 1, the person’s own testimony [afforded limited weight]; Level 2, professional evidence that the person is an adult at risk and how this may be impacted by detention [afforded greater weight]; and Level 3, professional evidence that the person is at risk and that a period of detention would be likely to cause harm [afforded significant weight].
Provides guidance for making decisions:
4)Affirming the presumption that a person should not be detained once they are regarded as being at risk in the terms of the guidance, but that it will still be possible to detain people at risk where ‘immigration control considerations’ outweigh this presumption. The immigration factors to be weighed against risk are: length of time in detention, public protection and ‘compliance issues’.
107.Critics of the new policy also raised concerns that it has led to an increase in the number of vulnerable people being detained, the opposite of what Stephen Shaw was calling for in his first report.142 In his October 2017 report on Harmondsworth IRC, HM Chief Inspector of Prisons raised serious concern about the lengthy detention periods for some of the most vulnerable people in detention:
The Home Office Adults at Risk policy had been operating for more than a year but was not working effectively in the centre. Despite efforts to care for adults at risk, too many were held for long periods. For example, a blind detainee on an ACDT [Assessment care in detention team work] had been detained for over a year, and a wheelchair user who had tried to set himself on fire had been held for 15 months.143
108.Pierre Makhlouf, assistant director at Bail for Immigration Detainees (BID) said that the policy “equips the Home Office with more arguments to refuse people release when they are found to be vulnerable”.144 Unlike the previous policy guidance, Medical Justice argued that the stipulation in the policy that a detainee must produce scientific “Levels of vidence” that they are “likely to suffer harm” is difficult to obtain and encourages a “wait and see” approach where vulnerable detainees are allowed to deteriorate until avoidable harm has occurred and can be documented.145 Medical Justice also highlighted that:
It is important to bear in mind that these levels are a measure of available evidence and not of vulnerability. Someone assessed as an adult at Risk level 1 is not necessarily less vulnerable than someone assessed as level 2—they simply have less evidence of said vulnerability. So, someone very vulnerable could end up being detained for a long time due to lack of evidence or issues with credibility which may in fact be the result of this very vulnerability.146
AAR levels of risk
109.A number of organisations, including Medical Justice and Liberty, told us that they would like the “levels of evidence” in the AAR policy to be abolished. Medical Justice said that the levels of evidence had “led to a lowering of the threshold for maintaining detention of those at risk of harm in detention” and that that vulnerable people should only be detained in “very exceptional circumstances” in line with the previous policy.147 They added that “the policy should retain the commitment for a self-declaration of vulnerability to trigger a duty of inquiry into the asserted vulnerability”.148 Liberty told us that the Government “should abandon the counter-productive “evidence level” model”.149 In its assessment of the AAR risk level system, BID said that “The categorisation of risk in this way inappropriately focuses on the quality of evidence available of risk rather than the actual risk to the person”.150
110.A common concern in the evidence we received was about the disproportionate Home Office decisions being made to categorise people within the AAR Levels, particularly Levels 2 and 3. In his follow up review, Shaw quoted the following statistics he received from the Home Office on the number of AAR cases as at 4 February 2018: “some 1,189 Adults at Risk were in detention. Of those identified as AAR cases: 396 were Level 1, 782 were Level 2, 11 were Level 3”.151 Furthermore, he noted that:
While the figures suggest it is relatively rare for a Level 3 individual to be placed or kept in detention, the numbers of cases at Level 2 are significantly higher than I had expected or believe to be appropriate.152
111.Shaw also highlighted the difficulties that clinicians face in assigning an individual to AAR Level 3. He said that AAR Level 3 “is problematic in its current form. Clinicians find it extremely difficult to determine whether detention will cause specific harm in the future, beyond the generalised deterioration that we know is the result of detention (with the degree of deterioration rising the longer the detention period)”.153 He recommended (if AAR is retained) that “Detention of anyone at AAR Level 3 should be subject to showing ‘exceptional circumstances’”.154 This is in line with the previous Home Office policy on vulnerability.
112.Liberty also noted that under the previous policy (Chapter 55.10 of the EIG), “Survivors of torture or ill-treatment needed to show independent evidence of their experience, but there was no additional requirement to provide evidence that their continued detention may be injurious to their health”.155 With regard to AAR Level 2, Stephen Shaw told us that it was “too broad” and “embraces everybody from somebody who has asthma, which can of course be exacerbated in detention because it is stress-related, or can be stress-related, to somebody with florid psychiatric symptoms”.156 Freedom from Torture explained that “their experience has been that those who would previously have been recognised as being at increased risk of harm–including torture survivors with independent evidence of torture - and only detained in ‘very exceptional circumstances’, are now considered level 2 and therefore afforded less protection”.157 In his follow up review, Shaw claimed that “the broad definition of Level 2 is at the heart of why the policy as a whole is not functioning as was envisaged”. He said that it “does not give any indication of the degree of an individual’s vulnerability”.158
Dynamic nature of vulnerabilities
113.In his first review Shaw recommended that, in addition to the categories of vulnerability identified in the previous Home Office policy, a catch all provision should be introduced to reflect “the dynamic nature of vulnerability” and encompass “persons otherwise identified as being sufficiently vulnerable that their continued detention would be injurious to their welfare”.159 In response, the Government accepted Shaw’s recommendation to “recognise the dynamic nature of vulnerabilities”.160 Detention Action told us that:
While the recognition of the dynamic nature of vulnerability is to be welcomed, the way in which this is put into effect reduces the protection afforded to vulnerable people. Vulnerable people now have to show that they are being harmed by detention, instead of the Home Office taking a preventative approach to ensure that harm is not done. For example, rather than not detaining a torture survivor simply because there is an increased likelihood that they could be vulnerable due to their past experiences, the Home Office now requires evidence that there is a significant risk of harm to that particular individual. In practice, this usually means producing evidence of a deterioration in their mental or physical health, i.e. that harm has already been done.161
114.Similarly, Medical Justice told us that “The policy’s interpretation of ‘dynamic assessment of vulnerability’ has led to a weakening of the previous protective categories. A focus on holistic assessments of vulnerability can have obvious benefits. However, the way it is applied in the AAR policy serves to remove the protection of belonging to a category recognised as at increased risk of harm in detention, such as victims of torture”. They called for a reinstatement of “a category-based approach to identifying vulnerability where demonstrating that one belongs to a category at increased risk of harm in detention triggers protection from this risk”.162 The Immigration Legal Practitioners’ Association (ILPA) argued that anyone in detention could be vulnerable and highlighted the death of a 27-year-old Polish man in Morton Hall IRC on 11 January 2017. He was “found hanging in his cell. His wife had given birth that day. While, unsurprisingly, there are suggestions of mental health problems, reports do not indicate whether there were any such problems prior to detention”.163 While an individual may not be deemed to be ‘vulnerable’ at the time of detention, unforeseen circumstances or experiences may affect and alter a person’s mental health from one day to the next.
Risk of harm balanced against ‘immigration factors’
115.In the AAR policy, immigration factors are weighed against the risk of vulnerability and harm. The AAR policy guidance allows the Home Office to continue to detain vulnerable people if it considers there to be ‘immigration factors’ to support continued detention, for example, if a caseworker believes there are “negative indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained”.164 The AAR casework guidance states that its section on “balancing risk factors against immigration factors” is a “guide rather than a prescriptive template”. There is a danger that the Home Office’s non-prescriptive approach to its consideration of what is or is not considered to be an immigration factor could unduly impact on the decision to detain an individual.165 Tom Nunn from BID explained to us, “this is a balancing of you missed an appointment two years ago or you are a victim of torture, I think we will just keep you in detention. It is not, in my opinion, an appropriate level of assessment”.166 Black Women’s Rape Action Project and Women Against Rape reported that implementing the AAR policy, “gave the Home Office the power to prioritise ‘any immigration control factors’ over a person’s vulnerability. We immediately saw a change in that more rape and domestic violence victims were detained or found it harder to get released”.167
116.As we shall discuss further in Chapter 5, the Home Office introduced case progression panels to review the suitability of continued detention every three months. However, in its 2017 inspection of Harmondsworth IRC, HMIP found that the recommendations of the Home Office’s own case progression panels were often ignored by senior Home Office officials:
The panel recommended the release of five detainees in the 12 cases we sampled, sometimes more than once, yet detention was maintained every time. In one case, the panel had unsuccessfully recommended the release of a detainee on three separate occasions.168
117.On 24 July 2018, in response to Stephen Shaw’s follow up review, the Home Secretary, Rt Hon Sajid Javid MP, made a commitment that “To increase support for vulnerable detainees, the Home Office will amend the Adults at Risk policy so it differentiates more strongly between cases to make sure those with the most complex needs receive the right attention and care”.169 In supplementary evidence to us on 14 November 2018, the Immigration Minister said that she was not “at this stage, able to provide the Committee with further information” about how the most vulnerable people would be better protected.170 In his July 2018 response, the Home Secretary also undertook to commission the Independent Chief Inspector of Borders and Immigration (ICIBI) to report annually on the effectiveness of the AAR policy. We asked the Home Office if the ICIBI’s annual reporting would including monitoring of the Home Office’s Rule 35 report decision making process. In supplementary evidence to us [14 November 2018], the Immigration Minister told us that “the Home Office is in discussion with the Chief Inspector about the scope and timing of the annual reviews, so it is not possible to provide more detail at this stage”.171
118.The Adults at Risk (AAR) policy is clearly not protecting the vulnerable people that it was introduced to protect. Instead, by introducing three levels of evidence of risk which are then weighed against a broad range of immigration factors, the policy has increased the burden on vulnerable people to evidence the risk of harm that might render them particularly vulnerable if they were placed or remained in detention.
119.The previous policy to protect vulnerable people in immigration detention [Chapter 55.10 of the Enforcement Instructions and Guidance] stipulated a presumption not to detain except in ‘very exceptional circumstances’. We are concerned that the AAR policy is not only failing to protect vulnerable people but, by introducing a requirement for individuals to provide evidence of the level of their vulnerability risk in detention, has significantly lowered the threshold for Home Office caseworkers to maintain detention of those most at risk. The AAR policy was not a concept that Stephen Shaw proposed in his first review: although he believes it has potential, the policy is not working as he had anticipated. The AAR policy has not only failed to mitigate the harmful impact of detention on vulnerable people but has failed to deliver a reduction in the number of vulnerable people in detention. We urge the Government to abolish the three AAR levels of risk and to revert to its previous policy of a presumption not to detain vulnerable individuals except “in very exceptional circumstances”.
120.We welcome the Government’s identification of a wider range of vulnerabilities in the AAR policy, and its recognition of the dynamic nature of vulnerabilities. However, it is evident from both the broad range of vulnerabilities being assessed at AAR Level 2 and the disproportionately large numbers of people being categorised at this level, that the Government’s ‘holistic’ interpretation of the fluctuating nature of vulnerabilities is failing to provide adequate mechanisms and safeguards to assess a person’s vulnerability before and during detention. In line with Medical Justice, we recommend a return to the previous category-based approach rather than “indicators of risk” so that an individual who belongs to a category at increased risk of harm in detention is considered suitable for detention in only very exceptional circumstances. To avoid a check list approach, the Home Office should include a catch-all category which captures those who are particularly vulnerable to detention but who also may not fall within one of the pre-set categories. For example, this might include a detainee who has recently suffered a bereavement. The Home Office should consult with a wide range of stakeholders who are affected by detention, including people with lived experience, to develop an agreed grouping of categories. The policy should also retain the commitment for a self-declaration of vulnerability to trigger a duty of inquiry into the asserted vulnerability.
121.We welcome the Government’s commitment to commission an ongoing annual report by the Independent Chief Inspector of Borders and Immigration to assess progress on the AAR policy. This reporting should assess the operation of the entire AAR framework, including the Detention Gatekeeper Team and the Rule 35 process to ensure that the Government’s system to protect vulnerable people is effectively and robustly monitored, and so that accurate data can be published.
Legal challenge to the Adults at Risk statutory guidance
122.The Adults at Risk policy was also criticised for adopting a narrower definition of torture than the Home Office had previously used when considering suitability for detention. The new definition was based on the UN Convention Against Torture (UNCAT) and excluded torture committed by ‘non-state’ actors.
123.On 10 October 2017, the Home Office lost a high court challenge on its change to the definition of torture in the Adults at Risk statutory guidance (AARSG)172 The legal challenge was brought by Medical Justice and seven detainees. Mr Justice Ouseley found that, by using the United Nations Convention Against Torture (UNCAT) definition of torture, the Government had wrongly allowed many who had been tortured overseas to be detained, as the policy had restricted the definition of torture to refer to violence carried out by official state agents only. As a result, those tortured by traffickers, terrorists or other non-government forces could be held in detention even if expert medical evidence found the scars on their bodies to be consistent with their accounts of torture. Those who would be excluded under such a restrictive definition “would include victims of sexual and gender violence and abuse and cult and religious violence who were previously included under the EO definition”.173 Freedom from Torture told us that “organisations working with vulnerable detainees had raised serious concerns at the time about the AAR guidance” but that the Home Office had chosen to “largely ignore these concerns”.174
124.In his judgment, Mr Justice Ousely stated: “The chief problem with the narrowed definition is that it excludes certain individuals whose experiences of the infliction of severe pain and suffering may indeed make them particularly vulnerable to harm in detention.” He concluded that the “UNCAT definition of “torture” intended for use in the AARSG [Adults at Risk statutory guidance] and R35 [Rule 35] would require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach”.175 The Judge ordered the Home Office to revert to the previous definition while it came up with a revised policy.
Home Office revises AAR policy with a new definition of torture
125.In March 2018, nine months after the judgement against the Government on the use of the UNCAT’s definition of torture in the AAR statutory guidance, the Home Office amended the Detention Centre Rules 2001 (Rule 35 (6)) to change the definition of torture, and cross referenced the new Rule 35 (6) in an amendment to the AAR statutory guidance.176 The new definition came into force on 2 July 2018. Medical Justice raised concern that this new definition still excluded some victims of torture and that it was too complex to be effectively applied by case workers and doctors working in immigration detention. They said that they, and other NGOs, had tried to raise these concerns with the Home Office.177 On 12 September 2018, Medical Justice was “granted leave” for a judicial review against the Home Secretary. The barrister representing Medical Justice “argued that the definition being used at present is also unlawful because it means victims of torture must prove they were under the control of the perpetrator and were “powerless to resist””.178
126.A number of NGOs including Medical Justice and Freedom from Torture also recommended that the “torture” and “victims of sexual or gender based violence” indicators of risk in the AAR statutory policy guidance should be replaced with a more inclusive category modelled on the UNHCR detention guidelines (9.1), namely ‘victims of torture or other serious, physical, psychological, sexual or gender based violence or ill-treatment’ and that this change should be reflected in the Rule 35 mechanisms to allow a broader set of indicators of risk to be identified.179
We asked the Minister for Immigration why she sought to bring in the new torture definition without waiting for Stephen Shaw to complete his follow-up review. She told us:
As I said, it was some months on from the High Court judgment and I was very conscious that that was an outstanding matter that we had to resolve. I laid the SI [statutory instrument] and that comes into force in July [2018], but I am absolutely open to looking at that again.180
127.The fundamental purpose of the Adults at Risk framework is to protect all vulnerable individuals from the harmful effects of detention. It seeks to do this by providing a robust safeguarding process that effectively identifies, and ensures that the right decision is made concerning, an individual’s risk in detention. This principle must not be diluted by the Government’s dominant focus on the definition of torture, which poses a risk that other individuals who are particularly vulnerable to harm in detention could be overlooked.
128.The Government should at the very least review the AAR policy guidance with immediate effect to ensure that it includes clear, inclusive and effective categories of vulnerability, with a presumption not to detain unless there are exceptional circumstances. This review should be completed by 1 December 2019. Any amendments to the AAR policy guidance should be reflected in Rule 35 of the Detention Centre Rules 2001 [See paragraph 130 on Rule 35], as well as the Home Office operational Enforcement Instructions and Guidance. Such a review should also revisit the definition of torture, in light of the Shaw follow-up review and concerns raised by various organisations in their evidence to us, and in line with the overall purpose of the Adults at Risk policy.
129.The Government should also replace the current vulnerability indicators in the AAR statutory guidance of “torture” and “victims of sexual or gender-based violence” with a more inclusive indicator based on the UNHCR detention guidelines, namely “victims of torture or other serious, physical, psychological, sexual or gender-based violence or ill-treatment”. This would enable a broader category of risk to be identified and would be more easily applied by caseworkers and doctors.
Rule 35
The process
130.Rule 35 of the Detention Centre Rules 2001 exists as a key safeguard for vulnerable individuals once in detention. The Home Office AAR statutory guidance “is meant to operate in tandem with the Detention Centre Rules 2001, SI 2001/238” to function as the safeguard against the detention of vulnerable people.181 The process is intended to ensure that “particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention”.182 Rule 34 stipulates that every detained person must have a mental and physical examination within 24 hours of admission to an immigration detention centre.183 Rule 35 of the Detention Centre Rules requires the IRC medical practitioner to report:
- on any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention (Rule 35(1)),
- on any detained person suspected of having suicidal intentions (Rule 35(2)), and
- any detained person whom the practitioner is concerned may have been the victim of torture (Rule 35(3)).184 A Rule 35 report does not result in the automatic release of a detainee.185
131.Once a Rule 35 report has been completed by a medical practitioner, the report must be passed via the IRC Home Office contact management team to the Home Office caseworker responsible for managing and/or reviewing the individual’s detention. Upon receipt, the caseworker must review continued detention in light of the information in the Rule 35 report and respond to the IRC, within two working days of receipt.186
Table 2: Rule 35 reports made and subsequent releases
DETENTION CENTRE RULE 35187
Rule 35 of the Detention Centre Rules 2001 states:
1)‘The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
2)‘The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
3)‘The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
4)‘The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
5)‘The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.’
The Detention Centre (Amendment) Rule 2018 introduced a new rule 35 (6) which defines ‘torture’ for the purposes of rule 35 (3) as:
6)any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in a situation in which:
a)the perpetrator has control (whether mental or physical) over the victim, and
b)as a result of that control, the victim is powerless to resist.
132.In evidence to us Hugh Ind, the then Director General of the Immigration Directorate, described the purpose of Rule 35 as the provision of “a dispassionate assessment from the medical practitioner of factors that they consider to be relevant to the ongoing detention. [ … ] There are significant numbers of people who think that this is about reasons to release somebody. It may be, but that is not the primary purpose of the rule.”188
Criticism of the Rule 35 process
133.In his first review, Stephen Shaw “noted widespread criticism of Rule 35” and recommended that “the Home Office immediately consider an alternative”.189 In response, the Home Office said that steps had been taken to improve the use of Rule 35 through its implementation of the AAR policy, adding that links had been made between the process detailed in Detention Centre Rule 35 and the AAR policy.190 In evidence to the Committee, the Home Office accepted the need to review the effectiveness of the Rule 35 Process. Hugh Ind told us in May 2018 that there were “a number of issues” with the process:
I think the evidence of dissatisfaction from a number of quarters is building and is such as to make us want to review the rule later this year. As to what the solution is, that is a lot harder and we have not reached a view on that.191
134.In his follow up review, Shaw reported that the majority of organisations who had submitted evidence to him “felt that Rule 35 was not working and should be replaced”.192 He summarised the concerns that were raised:
It was said that Rule 35 reports were routinely rejected for minor errors, and that they enjoyed the confidence of neither the doctors who complete them nor the caseworkers who receive them. It was pointed out that, following publication of the AAR policy, the number of Rule 35 reports dropped–probably because of the narrowing of the definition of torture. Since the torture definition reverted to the wider definition, the figures have picked up. But despite this, the release rate has continued to decline. One of the key failings in the Rule 35 process is the lack of training and support for IRC GPs in completing Rule 35 reports—many reports are poor quality—and the interpretation of reports and responses by Home Office caseworkers.193
135.Furthermore, Shaw stated that it was “anomalous” that decisions relating to Rule 35 were being made by those responsible for “both progressing the case and for detention”.194 In his analysis of alternative mechanisms for Rule 35 considerations, he proposed that the system currently used to identify and support potential victims of human trafficking and modern slavery could be used as a “template” for the Rule 35 process.195 He recommended that consideration of Rule 35 reports should be referred to a “new body–which could be within the Home Office but separate from the caseworker responsible for detention decisions”.196
136.We received evidence which corroborated some of Stephen Shaw’s findings about the Rule 35 process. The British Medical Association raised concern over the “lack of training and support for IRC GPs in completing Rule 35 reports”. and a shortage of training for “Home Office caseworkers about the process”.197 Freedom from Torture argued that failings under Rule 35 were less down to the policy but more due to its implementation by IRC medical staff and immigration officers.198
Identification of adults at risk who are not victims of torture
137.Detention Action argued that the Rule 35 process was not effective in identifying vulnerabilities identified under rule 35 (1) or rule 35 (2). They said that:
Rule 35 reports are rarely completed unless the individual is a victim of torture, although in theory they should be completed when a person’s health is likely to be injuriously affected by continued detention or when there are concerns about suicidal intentions. Since Rule 35 is the main route to being considered an adult at risk, vulnerable people who are not victims of torture are often not considered under the Adults at Risk policy.199
138.Similarly, Medical Justice argued that the AAR policy relied “heavily on the Rule 35 process” with “a gap in the reporting mechanism for those who qualify as AAR but are not necessarily victims of torture” i.e. Rule 35 (3). They highlighted that this included “many of the groups that were added following the recommendation of the first Shaw Review–victims of sexual and gender-based violence, transsexual persons, those with PTSD or learning difficulties, victims of trafficking”.200 In evidence to the Committee, HMIP Inspection Leader, Hindpal Singh Bhui, told us that “Torture is only one reason why a rule 35 could be considered, but almost all the rule 35 reports we see are about torture”.201 A British Medical Association report noted that “far fewer Rule 35(1) and Rule 35(2) reports are completed compared to Rule 35(3)” and suggested that the reasons for this could be due to a “lack of knowledge about their existence and use (the majority of available guidance focuses on Rule 35 (3))”.202
Fall in Rule 35 report releases
139.Liberty highlighted the “steep fall in the number of individuals released after a Rule 35 report is written” following the introduction of the AAR guidance.
Whereas 35% of those in receipt of a Rule 35 report were released in Quarter 3 of 2016, only 15% were released in Quarter 3 of 2017. This suggests that the balancing exercise contained in the new guidance has raised the threshold for the release of vulnerable people.203
140.In Figure 4, the chart shows that there had been a clear decline in the success rate of Rule 35 (3) report releases from detention, decreasing from 39% in Q2 2016 to 19% in Q2 2018. However, there was an 8% increase in Q3 2018, to 27% during which period the change in the definition of torture occurred, and the latest data for Q4 2018 shows this has increased again to 31%. It is important to note that, from September 2018, the Home Office included data for the first time on the breakdown of individual indicators of Rule 35 releases, including torture. This is vitally important data to ensure transparency on the effectiveness of Rule 35 which we strongly welcome. There was no public announcement of this change in the statistics, or any available explanation within the migration transparency data.204
141.Figure 5 below demonstrates that Rule 35 release rates from detention specifically for torture allegations showed a sharp decline following the introduction of the AAR policy in Q3 2016. As noted in paragraph 125, the Home Office amended the Detention Centre Rules to include a new, broader definition of torture, which came into force on 2 July 2018. It is too early to ascertain how this change in the definition will affect the numbers of vulnerable detainees being released under Rule 35 (3).
Figure 4: Rule 35 reports and subsequent releases from detention
Figure 5: Rate of Rule 35 reports resulting in release from detention, based on torture allegations
HMIP reports on Rule 35 effectiveness
142.HMIP also routinely cite a range of inadequacies with the use of Rule 35 in IRCs. These include unexplained Home Office decisions to continue detention, including detainees who had been identified as adults at risk, delays in Home Office responses, and a Home Office propensity to use immigration factors as the overriding balancing factor to maintain detention, irrespective of no imminence of removal. In its 2017 Yarl’s Wood report, HMIP outlined the following case studies:
One case that we examined in our casework sample concerned the detainee assessed at level 3 of the Adults at Risk policy because there was professional medical evidence that a period of detention was likely to cause harm. Two recent Rule 35 reports had been submitted for this detainee. In both cases, doctors noted numerous scars consistent with torture and psychological symptoms characteristic of post-traumatic stress disorder (PTSD). The response to the first report took eight weeks to finalise and the second five weeks. Both reports were considered by the internal review panel, independent of the decision-making team. On both occasions the panel recommended release but were overruled by a senior Home Office official. We were also concerned to find two Rule 35 responses where the Home Office had refused, without explanation, to accept that rape came within the legal definition of torture.205
143.In a number of other cases at Yarl’s Wood, HMIP highlighted that:
In eight of the ten cases examined, the Home Office had accepted that the detainee’s treatment came within the definition of torture and assessed the detainee at level 2 of the Adults at Risk policy. One of the eight had been released before the case had been considered and detention was maintained in the other seven cases. In all seven cases it was considered that negative immigration factors outweighed indicators of vulnerability. No responses cited the imminence or otherwise of removal.206
144.At its 2017 inspection at Harmondsworth IRC, HMIP revealed that, “In nine of the 10 cases, the decision-maker accepted the reports as evidence of torture. However, only one of these reports led to release”.207
145.Voke, a former Yarl’s Wood detainee who gave evidence to the Committee, explained how she had a Rule 35 report carried out which confirmed she had experienced gender-based violence. The Home Office accepted this report but kept her in detention. After she had been in Yarl’s Wood for seven months her mental health deteriorated seriously, and she developed psychotic symptoms. She then tried to kill herself, twice. Women for Refugee Women reported that, following her suicide attempts, Healthcare failed to complete a further Rule 35 report for her as they should have done, despite repeated requests from her solicitor to do this. The Home Office only released her after they were ordered to do so by the courts, after her solicitor brought a judicial review against her detention. She was in Yarl’s Wood for nearly eight months.208
146.Another detainee at Yarl’s Wood, Afiya, set out her case to the Committee in March 2018:
When I entered detention, I told them I want to do rule 35 and I told them from the start my application had torture and rape in it. When I did rule 35, the doctor said, “I do not think she is fit to be in detention and I do not know how detention is going to affect her going onwards”. That was the first month when I entered detention. No one reviewed rule 35 within those five months, and at the date for me to be released I met a psychiatrist who said, “Why is she still in detention?” after seeing all my records. “Why is she still in detention?” That is the point he raised.209
147.In a recent High Court case, Free Movement reported that “the Judge was scathing about the approach taken by the Home Office “in deciding to maintain detention of a man suffering from severe mental illness. In his observations, the Judge said that “The failure to assess the Claimant’s case at Level 3 under the AAR policy was, in my judgment, contrary to the evidence”. He stated that there appeared to be “a focus on looking for reasons not to release the Claimant rather than a clear application of the AAR policy in the light of the new evidence”.210
148.We are extremely concerned that the Rule 35 process is plagued with too many long delays, sets too high an evidential burden, and that internal review panel recommendations to release are being overturned by senior Home Office officials.
149.The Home Office must ensure that the Rule 35 process is adequately resourced and monitored to enable medical practitioners in IRCs to carry out their functions efficiently and to deliver Rule 35 reports to the evidential threshold required. All IRC medical practitioners should continue to receive training in identifying and documenting concerns as part of the Rule 35 process. Likewise, Home Office case workers should be trained to ensure that there is fairness, accuracy and consistency in their assessments and interpretation of Rule 35 reports.
150.As highlighted by Stephen Shaw in his follow-up review, there is a need for an alternative, independent mechanism in the Rule 35 decision making process. Currently, decisions relating to Rule 35 reports are made by the caseworker responsible for progressing an individual’s case, as well as their detention. This is not a fair or robust system. We urge the Government to explore alternatives that would ensure independent oversight as part of the Rule 35 decision making process.
151.We welcome the Government’s commitment to review the Rule 35 process. A review of Rule 35 is urgently required to ensure that no further injustices take place on the immigration detention estate. As part of any change to the process, we urge the Government to ensure that Rule 35 effectively identifies all vulnerable groups, as reflected in the wider UNHCR detention guidelines [e.g. “victims of torture or other serious, physical, psychological, sexual or gender-based violence or ill-treatment”] and that these categories are clearly mirrored in the Adults at Risk (AAR) policy guidance. The process used to identify any individual who may be vulnerable to harm in detention must be one that is coherent, fair and easy to apply; the current Rule 35 process, as part of the Adults at Risk framework, clearly fails to achieve this.
152.At the time of publication, the government review of Rule 35 had not been done. We recommend that a comprehensive review of Rule 35 is completed by the end of June 2019.
Deaths of immigration detainees
153.In September 2018 the Home Office included deaths in immigration detention for the first time in its immigration statistics and confirmed that this “data will be reported on an annual basis”. The Home Office records deaths in immigration detention under the category of “other”, which does not provide any detail on the type of death e.g. self-inflicted, or by natural causes.211
154.Prior to this development, Stephen Shaw told us that it was:
[ … ] frankly, odd and self-defeating that the Home Office does not follow normal practice in the MOJ of making a statement when there is an apparently self-inflicted death in detention. I think they should do so. I think they should do so routinely.212
155.From the evidence we have heard, transparent and accurate data in this area was challenging to obtain. In his follow up review, Shaw requested Home Office management information to establish the number of deaths since the publication of his first report in 2015. According to INQUEST, such public access to data on immigration detainee deaths is rare.213 Shaw reported that there had been twelve deaths in or shortly after detention, four of which appeared to have been self-inflicted since 2010.214 In HM Chief Inspector of Prison’s 2017–18 annual report Peter Clarke noted the rise in self- inflicted deaths in immigration detention with concern:
In last year’s annual report, we noted a rise in deaths in or immediately following detention. That concerning trend has continued. There were five detention related deaths in the reporting year, including three that were self-inflicted. In the previous year there were six deaths, including two self-inflicted deaths and a manslaughter. Before 2016–17, deaths that were not from natural causes were rare. It remains unclear why this change has occurred.215
156.In written evidence to the Joint Committee on Human Rights, INQUEST also reported “an unprecedented and dramatic rise” in deaths in 2017; their annual monitoring of deaths in immigration detention data showed a total of 6 deaths, two of which were awaiting classification.216 In its review of immigration detainee deaths between 1 January 2015 and 30 August 2018, INQUEST reported that it was “aware of seventeen deaths of immigration detainees in Immigration Removal Centres, prison or within five days of being released”, of which “The majority await inquest”.217 Worryingly, INQUEST told us that they relied on relatives, friends, NGO networks and witnesses to access information about immigration detainee deaths.218
157.We are deeply saddened and concerned by the recent reports of an increase in the number of self-inflicted deaths taking place in or shortly after immigration detention. We welcome the Home Office’s inclusion in its statistics of deaths in immigration detention from September 2018. This action was long overdue. However, as outlined in the evidence we received, it remains very difficult to access accurate and detailed data on the causes of deaths in immigration detention. The Home Office data does not state if a death was self-inflicted, natural, or if it occurred in a prison. In line with recommendations by Stephen Shaw, and Ministry of Justice practice, the Home Office should publish a more systematic and transparent record of deaths in immigration detention with immediate effect. This should include whether the cause of death is apparently self-inflicted, from natural causes, or unknown. The data should also record deaths of detainees held under immigration powers in HM prisons.
130 Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office by Stephen Shaw, January 2016; 11.1, p 91.
131 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, January 2016, 11.4, p191.
132 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, January 2016, 11.4, p191.
133 Stephen Shaw, Assessment of government progress in implementing the report on the welfare of vulnerable persons: a follow up report to the Home Office, July 2018, 2.93.
134 Detention Action responds to the second Shaw review, 24 July 2018.
135 Home Affairs Committee, First special report 2016–17, The work of the Immigration Directorates (Q3 2015): Government Response to the Committee’s Sixth Report of Session 2015–16, 9 June 2016.
136 Written statement responding to the Shaw Review, 14 January 2016.
139 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, January 2016, p84, 4.18; Shaw references the previous policy - specifically the categories of people considered to be vulnerable. There is no longer a link on the Home Office website to the previous policy on vulnerability in immigration detention as was laid out in Chapter 55.10 of the UK Visas and Immigration and Immigration Enforcement, Enforcement Instructions and Guidance.
140 The Guardian, New immigration detention policy for ‘adults at risk’ policy needs urgent review, 11 September 2016.
141 Home Office, Adults at risk in immigration detention, 2 July 2018. (Text box summary inspired by a research report commissioned by the Bar Council, Dr Anna Lindley, SOAS (University of London): Injustice in Immigration Detention Perspectives from legal professionals, November 2017.)
142 Scottish Detainee Visitors, The wait is over, the second Shaw Review is finally published, [Adults at Risk policy has failed to prevent the detention of vulnerable people], 27 July 2018.
143 HM Chief Inspector of Prisons, Report of an unannounced inspection of Harmondsworth IRC, 13 March 2017; p25, 1.29. In the case of the blind detainee the report also noted that, despite an assessment care in detention and team work (ACDT) review which stated that the detainee ‘relies on staff and his peers to assist him moving around the centre’, the Home Office detention review stated: ‘he is completely self-caring and able to manage’. [P31; 1.67]; As explained in Stephen Shaw’s, Assessment of government progress in implementing the report on the welfare of vulnerable persons: a follow up report to the Home Office p92 the ACDT system is: “The formal process in IRCs to assist in the prevention of suicide and self-harm remains the Assessment, Care in Detention and Teamwork (ACDT) system”.
144 Independent, Home Office systematically ignores medical advice to keep mentally ill immigrants in detention, 25 November 2017.
150 Bail for Immigration Detainees, Claire Sullivan and Rudy Schulkind, Adults at risk: the ongoing struggle for vulnerable adults in detention, July 2018, p11.
151 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons A follow-up report to the Home Office, July 2018, p32.
152 Ibid p33.
153 Ibid p33.
154 Ibid p33, recommendation 11.
158 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p33, 2.124.
159 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, January 2016, p92,4.51.
160 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p3, 1.9.
163 Immigration Law Practitioners’ Association (ILPA), Briefing for Westminster Hall debate on the detention of vulnerable persons, Tuesday 14 March 2017.
164 Home Office, Adults at risk in immigration detention, 2 July 2018, p17.
165 Ibid, p17.
168 HM Chief Inspector of Prisons, Report of an unannounced inspection of Harmondsworth IRC, 13 March 2017, p31, 1.68.
169 Home Office press statement, 24 July 2018.
171 Ibid
172 Garden Court Chambers, Statutory guidance on adults at risk under scrutiny, 6 November 2017: The Home Office lost the high court challenge on the “lawfulness of the use of a definition of torture under the UNCAT definition introduced in the adults at risk statutory guidance (AARSG) issued under section 59 of the Immigration Act 2016 (IA2016)”.
173 “EO” is the name of the applicant in this judicial review; Ibid; “This was not the Home Secretary’s first attempt at trying to introduce the UNCAT definition of torture. It had already previously been rejected in the case of R (on the application of EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), [2013] All ER (D) 248 (May). In that case, Burnett J held that torture in the Detention Centre Rules 2001 had a broader meaning than in the UNCAT torture definition, which provided that torture was any act by which severe pain or suffering was intentionally inflicted for the purposes of obtaining information or a confession, punishment, intimidation, coercion or discrimination, when inflicted by a public official. EO adopted the same definition, but without the requirement for infliction by a public official”.
175 Medical Justice v Secretary of State for the Home Department judgment Mr Justice Ouseley Queen’s Bench Division Administrative Court. 10 October 2017. Paragraphs 154 and 192.
176 Home Office, Adults at Risk in Immigration Detention, p7 26 February 2019: “The definition of torture for the purposes of the adults at risk in immigration detention policy is set out in rule 35(6) of the Detention Centre Rules 2001 (as inserted by the Detention Centre (Amendment) Rules 2018) and rule 32(6) of the Short-term Holding Facility Rules 2018 and is defined as: “any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in a situation in which— (a) the perpetrator has control (whether mental or physical) over the victim, and (b) as a result of that control, the victim is powerless to resist”.
178 The Times, Judicial review granted over Whitehall definition of torture, 13 September 2018; The Detention Centre (Amendment) Rules 2018 (SI 2018/411): Amendment to rule 35 of the Detention Centre Rules 2.—(1) Rule 35 of the Detention Centre Rules 2001 (1) is amended as follows.
(2) After paragraph (5), insert—
“(6) For the purposes of paragraph (3), “torture” means any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in a situation in which—
(a)the perpetrator has control (whether mental or physical) over the victim, and
(b)as a result of that control, the victim is powerless to resist.”
181 Garden Court Chambers, Shu Shin Luh, Statutory guidance on adults at risk under scrutiny, 6 November 2017.
182 Home Office, Adults at Risk policy guidance, 2 July 2018, p20.
185 British Medical Association, Locked up locked out: health and human rights in immigration detention. 2017.
186 Home Office, Detention services order 09/2016, Detention centre rule 35 and Shor-term Holding Facility rule 32, 2 July 2018, p16 “ A rule 35 report must be considered and be responded to by the responsible officer in line with the guidance in Chapter 55b - Adults at risk in immigration detention. These actions must be carried out as soon as possible but no later than the end of the second working day after the day of receipt”.
187 Home Office, Detention services order 09/2016, Detention centre rule 35 and Shor-term Holding Facility rule 32, 2 July 2018.
189 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p36, 2.138.
190 Home Office, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p10, 2.138.
192 Home Office, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p4. 1.19.
193 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p36.
194 Ibid, p40, 2.146.
195 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p40, 2.147; Shaw explained that The National Referral Mechanism was introduced in 2009 to meet the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings. From 31 July 2015, the NRM was put on a statutory basis following implementation of the Modern Slavery Act 2015. The Competent Authority (trained decision makers) decides whether individuals referred to them should be considered to be victims of trafficking according to the definition in the Convention.
196 Ibid, p41.
197 British Medical Association (BMA) (IDD0019); British Medical Association, Locked up locked out: health and human rights in immigration detention, 2017, p5.
202 British Medical Association, Locked up locked out: health and human rights in immigration detention 2017, p41.
204 Immigration enforcement statistics (in the Migration transparency data series), Table DT_03. There is no user guide for this series.
205 Her Majesty’s Chief Inspector of Prisons, Report on an unannounced inspection of Yarl’s Wood IRC, published 15 November 2017, p31, 1.78; The report explained: “In September 2016, the Home Office changed the definition of torture to be used in Rule 35 considerations. This was challenged in the courts. Pending the outcome of proceedings, the Court has ordered the Home Office to use a broader definition of torture – one including actions of non-state actors, which would include rape regardless of the perpetrator – while the case awaited conclusion. In its ruling in October 2017, the High Court confirmed that the broad definition of torture should be used in Rule 35 considerations”.
206 Her Majesty’s Chief Inspector of Prisons, Report on an unannounced inspection of Yarl’s Wood IRC, published 15 November 2017.
207 Her Majesty’s Chief Inspector of Prisons, Heathrow Immigration Removal Centre Harmondsworth site, 2–20 October 2017, p31, 1.70.
210 Free Movement article, Home Office “looking for reasons not to release” man suffering from severe mental illness, 7 November 2018; R (Bah) v Secretary of State for the Home Department [2018] EWHC 2942 (Admin)
211 Deaths in immigration detention are included in the ‘other’ category in Immigration statistics detention table dt_06 and dt_06_q. The User guide to these statistics states that: “The ‘other’ category includes people who have returned to criminal detention, those released unconditionally, absconders, those sectioned under the Mental Health Act, and deaths in detention” (p.88).
213 Written evidence from INQUEST to the Joint Committee on Human Rights.
214 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, a follow-up report to the Home Office, July 2018, part 5, p 91; Annex 9 of Stephen Shaw’s follow up report details the number and type of deaths in immigration detention since 2010.
216 Written evidence from INQUEST (IMD0028) to the Joint Committee on Human Rights; INQUEST: Deaths of immigration detainees.
217 Ibid
218 Ibid
Published: 21 March 2019