Nationality and Borders Bill

Written evidence submitted by the Asylum Seekers Advocacy Group (ASAG) and Doctors for Justice (D4J), Australia ( NBB27)

To the United Kingdom Parliamentary Committee scrutinising the Nationality and Borders Bill

1. We welcome the opportunity to make a submission to this the debate on the Nationality and Borders Bill (UK)in the hope that doing so will prevent the United Kingdom from taking such a perilous path.

2. This submission is made by Michael Dudley, Peter Young, Louise Newman, Fran Gale, Julie Macken and Rohanna Stoddart. Michael Dudley is based at the School of Psychiatry, University of New South Wales, Kensington, Australia. Peter Young is an Independent Scholar based in Sydney, Australia. Louise Newman is based at the Department of Psychiatry, University of Melbourne, Melbourne, Australia. Fran Gale and Julie Macken are based at the School of Social Sciences, University of Western Sydney, Penrith, Australia. Rohanna Stoddart is based at the Faculty of Medicine, University of New South Wales, Sydney, Australia. We have between us over fifty years’ experience of working with patients who have been subjected to Australia’s detention regime since 2002. We have worked within offshore processing centres and with patients who have been through the onshore processing centres. We have worked with children, women and men at various stages of detention within this regime. We have over 50 peer reviewed articles covering our experience and research into the mental health impacts of Australia’s immigration detention regime. The following reflects our most pressing concerns about the proposed Nationality and Borders Bill (UK)I, in as much as it operationalises the worst aspects of Australia’s immigration policy. We represent two human rights organisation – Asylum Seeker Advocacy Group (Chairs MD and LN), and Doctors for Justice (Convenor LN), both of which have contributed to the debate in Australia on these issues. Professor Newman has also been an advisor to the Australian Government on the mental health needs of those in immigration detention.

3. Indefinite immigration detention causes well-documented harms to mental health. This submission will detail the following: how detention for deterrence (exemplified by Australia) injures asylum-seekers; how detention compromises health-care ethics and hurts health professionals. Should the UK government choose to pursue this policy these are the issues healthcare workers will confront.

4. Australian Governments fully understand and accept policy-based injuries. They purposefully dispense cruel, inhuman and degrading treatment and intend suffering that causes measurable harms for arriving asylum-seekers exercising their right under Australian law. Health professionals are ethically conflicted, not wanting to abandon patients yet constrained. Indefinite detention prevents them from alleviating sufferings and invites collusion, potentially strengthening harms; thwarts scientific inquiry and evidence-based interventions; and endangers their health whether they resist, leave or remain.

5. Our first concern is Clause 26 of the Bill – relating to schedule 3 - amends the UK Asylum and Immigration Act 2002 to allow for someone seeking asylum in the UK to be removed while their claim is still pending, thus making it possible for the UK to legally process asylum claims offshore in the future. This may normalise indefinite detention, without its illegality being determined (Cavallaro et al., 2017, p. 8, 110–114). Australia provides the most extreme example of restrictive immigration control (Kaldor Centre, 2019; Briskman, 2019). Members should support amendments to remove this clause and schedule.

6. Clause 11 of the Bill relates to accommodation for people in the asylum system and gives the Government powers to house different groups of asylum seekers in an (undefined) ‘accommodation centre’. This mimics Australia’s move to house asylum seekers in prison-like conditions. Assisted by private contractors, Australia engages low-income, aid-dependent countries – Nauru and Papua New Guinea (PNG; Manus Island) – to hold all newly arrived IMAs in punitive conditions (Refugee Council of Australia, 2019). Detention involves often overcrowded, unsanitary, overheated and dangerous environments, including exposure to physical and sexual violence; neglect, such as inadequate water, food and medical services; exposure to endemic self-harm, and humiliation/dehumanisation (e.g. requests for sexual favours for access to showers; addressing detainees by boat number, not name). Such a move away from housing in the community we say will also impede integration prospects for refugee and, because of the high security employed is a far more expensive option.

7. Clause 26 and Schedule 3 propose amendments to UK law which would make it possible to remove asylum seekers to ‘safe countries’ (i.e. offshore processing). The Australian experience of offshore detention should be avoided at all costs. Immigration detention centres exert control through an obtrusive, heavy state presence: arbitrary, punitive, inaccessible authority, with state-contracted guards and often inhospitable conditions. They are also liminal and hostile "anti-places" (McLoughlin and Warin, 2008): closed and suspended, but unstable and insecure, combining abrupt change and endless waiting. Through actual and symbolic violence, including secret abuses (Nethery and Holman, 2016) and through systemic uncertainty and disorder, indefinite detention abrogates rights, denies needs and invalidates prosocial behaviour and emotions, thereby erasing visibility and personhood (Brooker et al., 2016; Cleveland et al., 2018). Thus, dehumanised and bearing detention’s injuries, detainees become hopeless, powerless and deportable (Coffey et al., 2010; The Senate, 2017; Koutroulis, 2003). The above conditions cause profound physical and mental suffering, anxiety and despair. Plentiful mental health research and multidisciplinary inquiries verify this indisputably: for adults (Coffey et al., 2010); for children (Ward and Raphael, 2019; Linton et al., 2017; AHRC. The Forgotten Children, 2014c); or both (Médecins sans Frontieres Australia, 2018; Young and Gordon, 2016; Commonwealth Ombudsman, 2013; Bull et al., 2012; Green and Eagar, 2010; Mares and Jureidini, 2004; Steel et al., 2004b; Dudley, 2003; Sultan and O’Sullivan, 2001). Children and adults have high rates of post-traumatic stress disorder (PTSD), anxiety and depression; infants show attachment, developmental and emotional difficulties. Children suffer from parents’ mental deterioration and neglect of basic developmental needs, including opportunities for play and cognitive development: their unique vulnerability makes their detention especially egregious.

8. We are deeply concerned that your proposed Bill reflects the worst aspects of Australia’s brutal refugee policy as developed over the last twenty years. The implementation of this policy has seen Australia accused of violating the

§ Universal Declaration of Human Rights.

§ The United Nations Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment,

§ The International Covenant on Civil and Political Rights, and

§ The United Nations Convention on the Rights of Children referred to in the Australian Human Rights Commission Inquiry into Children in Immigration Detention (albeit discussing on shore detention) - "A Last Resort – National Inquiry into Children in Immigration Detention (2003). [1]

Further, we say that offshore detention is, in its implementation and practice in breach of

§ The United Nations Convention in Relation to the Status of Refugees [1951] and The United Nations Protocol in Relation to the Status of Refugees [1967] [2]

§ Part 3, clause 37 of the Bill includes an amendment to the UK Immigration Act 1971 to create an offence where someone knowingly enters the UK without leave to enter, with a maximum five-year prison sentence. Criminalising seeking asylum in this way contravenes the aforementioned Conventions and Protocol and we support the UK Refugee Council’s criticism of this change. [3] Members should support an amendment to remove clause 37.

9. Lacking legal remedy, multiple parties from 2014 referred Australia to the International Criminal Court (ICC), alleging Australia’s treatment of refugees involves multiple crimes against humanity, including imprisonment, torture, deportation and persecution (RMIT ABC Fact Check, 2019). Preliminary examination by the ICC’s Office of the Prosecutor (OTP) found Australia’s offshore conditions for refugees constitute cruel, inhuman and degrading treatment (CIDT), breaching the ICC Statute’s Article 7(1)(e) on imprisonment or other severe deprivation of physical liberty (Wilkie, 2020). Numerous UN and human rights bodies repeatedly find this policy contravenes international law (Cavallaro et al., 2017, p. 70). For example, the UN Special Rapporteur on Torture, citing three Australian cases (footnote 44), finds policy-based indefinite detention of migrants may signify torture when aimed at deterrence, intimidation or punishment (UN Office of the High Commissioner for Human Rights [OHCHR], 2018). The OTP conceded that detention’s duration and conditions caused asylum-seekers measurably severe mental suffering, including anxiety, depression, suicide, attempted suicide and self-harm, without adequate mental health care; yet denied this constituted torture, defined as "intentional infliction of severe pain or suffering, physical or mental, upon a person in custody or under control of the accused" [Art. 7(2)(e)] (Heller, 2020).

10. While asylum-seekers are victims of this immigration regime healthcare professionals (HPs) are secondary casualties. HPs have thoroughly documented the harms of indefinite immigration detention. Alongside jurists, they have observed how successive governments persistently and "recklessly" (Jureidini and Burnside, 2011) mistreat asylum-seekers, acknowledging the harms and believing them justified to deter and force repatriation (Cavallaro et al., 2017; Briskman et al., 2010; AHRC, 2014a [hearing, 31 July]; Isaacs, 2016).

11. This mistreatment has come with a cost for the Government. Injured detainees and service providers have received substantial out-of-court settlements to avoid government exposure. In the 2016–2017 financial year, the government paid $230,000 to manage 20 compensation cases against the Immigration Department for wrongful imprisonment or personal injury. This included workers’ compensation (see below); but excluded a $70m out-of-court settlement (plus $20m legal costs) that Manus Island detainees received for false imprisonment in dangerous, damaging conditions. Previously, during 1999–2011, immigration detainees received $18.23m for wrongful detention and $21.05m for duty-of-care breaches and negligence (excluding legal costs; Lawyers Alliance, 2017, 2013).

12. Most recently, "Medevac", a medical evacuation law operating from March to December 2019, allowed sick offshore asylum-seekers transfer to Australia for management on two doctors’ recommendations. The government strongly contested this: the Immigration Minister blamed excessive health worker compassion (SBS News, 2018), asserting that media outlets and "advocates" encourage asylum-seekers’ hopes of acceptance and newsworthy activities, thus promoting self-harm (Lewis, 2019). Yet, among 121 medical evacuation referrals, 97% had on average 4.6 physical ailments, 91% had psychiatric problems (including 57% with suicidal ideation, and 31% attempting suicide in the previous six months) and 88% had both (average ailment total = 7.6; Townend et al., 2019). The government rescinded Medevac in spite of staunch health organisational opposition.

13. As a result of these abusive conditions, health professionals have been forced to consider boycotting immigration detention. Abuses to asylum-seekers’ human rights and demonstrable, enduring harms to their health continue in spite of decades-long health, the wider community and international resistance. Persistent concerns exist that harms to detainees remain for reasons of deterrence, with government fully aware. The detention bureaucracy intrinsically limits HPs’ capacity to alleviate suffering. Strong ethical conflict ensues between the desire to care and observe traditional professional roles and its impossibility in a corrupting system. Likewise, remaining without resistance, continuing collusion, strengthens the system’s harms. These considerations justify terminating HP involvement in immigration detention. Amplifying this case for leaving are three connected arguments: 1. the absolute duty not to countenance CIDT and torture of asylum-seekers or a system that violates human rights, including the right to health; 2. the moral ambiguity and near certainty of the ineffectiveness of health/mental health interventions in detention; and 3. the damage to HPs. In sum, these are duties to: not harm one’s patients (who incidentally also belong to a highly vulnerable group); to benefit one’s patients by pursuing the highest standards of well-grounded professional care; and to sustain one’s profession and one’s own health.

14. As noted above, regardless of whether Australian officials are accused or convicted of torturing asylum-seekers, HPs equate indefinite immigration detention with torture (United Nations, 2019, 2015; Berger, 2016; Isaacs, 2016; Essex, 2019, p. 187; Sanggaran and Zion, 2016; Marr and Laughland, 2014; Briskman et al., 2010). The government remains adamant that HPs are not the primary decision makers about detainee health needs (The Senate, 2016). Thus to maintain government offshore policy and prevent access to lawyers, detention bureaucracies override clinical judgments to transfer patients to Australia, with ensuing fatalities (Cavallaro et al., 2017, pp. 51, 55, 76, 86, 102). Immigration detention’s governance and operations disrupt health care and HPs’ clinical role, ethical obligations and capacity to practice and support vulnerable populations and create dual loyalty dilemmas for HPs (Fujio, 2011).

15. The HP’s primary, undeniable duty is to the patient. Yet, competing duties, explicit or implicit, to states, courts, universities, public health agencies, corporations or other powers, threaten this. Though sometimes non-controversial, dual loyalties provoke significant concern when agents (often non-health administrators) risk or invite HP collusion with CIDT (Briskman and Zion, 2014; Martin, 2018). Classic abuses encompass: inflicting harmful interventions to serve state interests; compromising one’s independent medical judgment; allowing state policy to limit or deny care; inappropriately disclosing medical information; and remaining silent about abuses, in particular in one’s formal medical capacity (Solomon, 2005).

16. Health professionals working with a proposed UK detention regime could find themselves in the following situations: manacling and guarding detainees in hospitals (Dr Barri Phatarfod and Dr Mary-Anne Venetoulis’ commentary in Kirkpatrick, 2019); managing forced removals’ fitness-to-fly (Pickles and Hartree, 2017); assessing asylum-seekers’ health in degrading circumstances (exhausted, dehydrated, soiled by excrement; Sanggaran et al., 2014); and undertaking procedures that transgress clinical obligations (e.g. using bone X-Rays to estimate detainees’ age (Bohmer and Shuman, 2017, p. 60). Clinical confidentiality is breached; and detention’s mental health statistics concealed (Marr and Laughland, 2014).

17. Other documented examples – HPs force-feeding hunger-striking competent detainees (Human Rights Watch, 2019), and misdiagnosing self-harm as manipulation or personality-driven while ignoring overwhelmingly traumatic contexts (Commonwealth Ombudsman, 2013, pp. 158, 161; Dudley, 2003), may indicate alignment with immigration detention’s goals or even qualify as torture by virtue of severity and intentionality (European Convention on Human Rights Toolkit, 2020).

18. Clearly, contracted health workers in coercive, abusive systems are not trusted and regarded as "enemy agents" (Brooker et al., 2016; Boochani, 2018). Medical/psychiatric standards such as the Hippocratic Oath ("do no harm") and Declaration of Geneva ("my patient’s welfare will be my first consideration") are thereby grossly contravened.

19. Secondly, HPs should not participate in morally ambiguous, ineffective interventions that are unlikely to be evaluated. Firsthand accounts (Martin, 2018; Wall et al., 2016; Marr and Laughland, 2014) strongly suggest that in immigration detention’s deadening conditions, clinicians’ psychological interventions are probably ineffective. Such interventions also serve mixed ethical ends, e.g. relaxation or cognitive-behavioural therapy assist detainee tranquillity and control. Strong sedative and antipsychotic medications are used for extended periods for psychiatric problems, with severe side-effects and little relief (Bochenek, 2016). Mistrust erodes the therapeutic relationship. We know of no published research adhering to rigorous ethical standards that confirms health interventions are effective under detention conditions.

20. Third are untallied but potentially considerable personal costs, involving both PTSD and moral injury. Some HPs may accept immigration detention purposes. Others may self-identify as advocates openly or covertly (Stoddart et al., 2020). Many, however, (including advocates) testify to helplessly, inescapably witnessing the power of detention to (re-)traumatise (Kirkpatrick, 2019; Martin, 2018; Wall et al., 2016; Coffey, 2006, 2010; Marr and Laughland, 2014; AHRC, 2004, pp. 307, 315, 325, 332, 423). For frontline personnel as for asylumseekers, vicarious traumatisation can follow chronic exposure to invalidation, insoluble predicaments, unaddressed abuse allegations and horrifying experiences (for example, cutting down hanged people, witnessing lip and eyelid stitching or self-immolation) (Brooker et al., 2016; Orner, 2016; Baillot et al., 2013; Koutroulis, 2009; Steel et al., 2004a; Mares et al., 2002).

21. The concept of moral injury, associated particularly with recent military psychiatry, presupposes injurious events in hazardous situations where one’s leaders or oneself fail morally or betray standards. This leads to post-event (rather than immediate) spiritual/existential questioning and mental health symptoms (Barnes et al., 2019). The immigration detention system, as noted, subordinates HP independence to state priorities: expecting HPs to tolerate sub-standard care, violating patients’ health-care rights and HPs’ professional standards (Briskman, 2019). Creating a potential ‘slippery slope’, it accelerates moral injury via association with coercive, abusive encounters, allowing harms (Jansen et al., 2018) and failing to protect those engulfed by them.

22. The three duties enumerated above reflect Beauchamp and Childress (2019) biomedical ethical principles of non-maleficence, beneficence and autonomy. Their fourth principle, justice, concerns (inter alia) distributing health resources fairly. However, detention’s intentional harms also suggest the need for social justice frameworks – such as that of political philosopher Nancy Fraser (2008)– that would allow marginalised asylum-seekers recognition, due resources, and equal participation, and require transformative interventions that decisively tackle rather than affirming systemic harms. This would both overhaul Kafkaesque systems and support individuals.

23. Conclusion Indefinite immigration detention is malignant: its harms are intentional, involving both abuse and neglect. For HPs, balancing costs and benefits is agonising. Do the benefits of HPs accompanying patients or perhaps mitigating harms that would arise in their absence, outweigh overwhelming harms to asylum-seekers from detention, ineffective morally ambiguous interventions, and harms to HPs? The duties not to abandon one’s patients – to monitor, witness with and to treat those subjected to CIDT – have ethical and emotional gravitas for HPs.

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