80.We heard widespread concerns about the inadequacy of the Adults at Risk Policy (AAR) in protecting vulnerable people at risk of harm in detention. The AAR policy involves a three-stage assessment. Firstly, the policy sets out a number of ‘indicators of risk’ which serve to identify those with a particular vulnerability to harm in detention. Previously, if someone was identified as belonging to one of these categories they were only detained under ‘very exceptional circumstances’. However, under the new policy once someone has been identified as having an indicator of risk, Home Office officials determine the ‘levels of evidence’ supporting the indicator. In order to reach level 3, professional evidence that a period of detention would be likely to cause harm is required. There are concerns that this evidence is hard to come by before harm has occurred. The evidence of vulnerability is then balanced against a range of ‘immigration factors’.
81.Two key concerns that witnesses had with the AAR policy were:
82.There is currently inadequate provision for the identification of, and provision for, individuals who lack mental capacity. The Adults at Risk policy and indeed other Home Office policies are silent on how to respond to the needs of those that lack mental capacity. As discussed earlier, recent judgments have found that the current system, with its lack of automatic legal representation and lack of prompt and automatic access to the courts to challenge detention, puts individuals who lack capacity at a disadvantage.
83.We are concerned that the Adults at Risk policy does not give adequate protection to individuals at risk of harm in detention. There is also inadequate provision for the identification of, and provision for, individuals who lack mental capacity in immigration detention. The Government should make better provision for the identification of individuals who lack mental capacity in detention. There should be, at all times, an on-site suitably qualified expert at all IRCs able to make such assessments in accordance with mental capacity legislation. We also consider that there should be automatic provision of advocacy services in cases where individuals do not have full capacity to make decisions for themselves on account of their mental capacity to ensure that such individuals are able to participate in the legal processes to challenge their detention and make representations in respect of any immigration applications.
84.Conditions across the immigration detention estate vary. We heard that conditions had improved in some detention centres due to the reduction in the detainee population, but a number of issues remained. We were particularly concerned by reports of:
85.We are concerned that reports of staff abuse of detainees and or deterioration of conditions in IRCs have been brought to light by undercover reporting rather than through Home Office oversight and assurance processes. The Home Office should give serious consideration to improving the oversight and assurance mechanisms in IRCs and the immigration detention estate generally to ensure that any ill-treatment or abuse is found out immediately and action is taken to correct it, to take steps against those responsible and to ensure lessons are learned to put in place effective prevention mechanisms.
86.More needs to be done to make the detention estate less like prisons and create as open a regime as feasible on the inside, which is proportionate when dealing with those detained for administrative purposes. Detainees should not be routinely handcuffed. Under the criminal justice system, there are different prison regimes ranging from category A to D. Consideration should be given to separating individuals who have been convicted of serious offences and those who pose a risk of violence from other detainees.
101 The “indicators of risk” are: “suffering from a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition); having been a victim of torture; having been a victim of sexual or gender based violence, including female genital mutilation; having been a victim of human trafficking or modern slavery; suffering from post-traumatic stress disorder (which may or may not be related to one of the above experiences); being pregnant (pregnant women will automatically be regarded as meeting level 3 evidence); suffering from a serious physical disability; suffering from other serious physical health conditions or illnesses; being aged 70 or over; being a transsexual or intersex person.” The AAR guidance states that “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.”
102 Level 1: self-declaration. Level 2: professional evidence (e.g. from a social worker, medical practitioner or NGO). Level 3: professional evidence stating the individual is at risk and that a period of detention would likely cause harm.
103 These relate to removability, compliance and public protection.
104 Freedom from Torture told us between January and September 2017, it received 101 referrals for suspected torture survivors in immigration detention, Freedom From Torture ()
105 Her Majesty’s Inspectorate of Prisons ()
106 A follow-up report of the Home Office by Stephen Shaw, , July 2018, p 33
107 Bhatt Murphy solicitors and Garden Court chambers (); Bail for Immigration Detainees (); Medical Justice (). Level 1: self-declaration. Level 2: professional evidence (e.g. from a social worker, medical practitioner or NGO). Level 3: professional evidence stating the individual is at risk and that a period of detention would likely cause harm.
108 Medical Justice ()
109 R (VC) v SSHD  EWCA Civ 57
110 Her Majesty’s Inspectorate of Prisons ()
111 Independent investigation into concerns about Brook House immigration removal centre, , November 2018, p 63
112 Independent investigation into concerns about Brook House immigration removal centre, , November 2018, p 24
113 [Arrey, former detainee]
114 Ministry of Justice & HM Inspectorate of Prisons, , July 2018, p 77
115 [Arrey, former detainee]
116 [Jenny, former detainee]
117 Yarl’s Wood has experienced similar problems to Brook House as revealed in a Channel 4 documentary in 2015 in which staff were recorded abusing detainees.
Published: 7 February 2019