6Other concerns
Adults at Risk policy
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 risk101’ 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.102 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’.103
81.Two key concerns that witnesses had with the AAR policy were:
- There has been little overall change in the numbers of persons who are at risk of harm in detention. Stakeholders told us that there continue to be failures both in screening for vulnerability prior to detention and in mechanisms for identifying vulnerabilities within IRCs,104 while HMIP told us that they regularly encounter people in detention who appear to have a high degree of vulnerability, including those who state that they are victims of torture or are experiencing mental health difficulties.105 According to Stephen Shaw’s second report, there were 1,189 adults at risk in detention on 4 February 2018.106
- even when identified in detention, vulnerable individuals may not be released as the evidentiary burden requiring them to prove their vulnerability has increased.107 Medical Justice said that the high threshold of evidence needed for release from detention was “very hard to come by prior to detention, and once in detention the evidence is only likely to be generated as a result of the person deteriorating, at which point the harm has already occurred. Such a ‘wait and see’ approach knowingly places vulnerable people in a harmful environment.”108
Mental Capacity
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.109
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.
Conditions and treatment
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:
- Prison-like conditions in several IRCs and the extended time periods individuals spent locked in their rooms. HMIP told us that Colnbrook, Brook House, Morton Hall and parts of Harmondsworth IRC look and feel like prisons and not enough has been done to adapt them for an immigration detainee population. HMIP also said that during interviews with detainees, the prison-like conditions of IRC are one of detainees’ main concerns.110
- inappropriate mixing of detainees. We were concerned by the findings in the independent investigation into concerns about Brook House IRC, in particular the impact of mixing violent and intimidating ex-foreign national offenders (awaiting deportation at the end of a prison sentence) with other detainees. The report highlighted that managing and caring for the diverse and demanding detainee population at Brook House IRC is particularly challenging and can “change the entire feeling within the establishment very, very quickly.”111 Detainees said that they had experienced violence and bullying from other detainees which was not properly managed by staff due to staff shortages. FNOs were disproportionately the subject of reports of security incidents and incidents of violence or threatening behaviour although there were a few disruptive FNOs that were often responsible for a large number of incidents.112
- unnecessary heavy-handedness or unnecessary restrictive measures taken by immigration enforcement officials during the detention process whether during an immigration enforcement raid or detention in the course of an individual reporting to the Home Office. Former detainees told us that they were handcuffed at the point of detention even when they showed no signs of absconding or being violent.113 The disproportionate use of handcuffs without evidence of risk was also highlighted by HMIP in their 2017–18 annual report.114 We also heard about the practice of taking away of mobile phones at the point of detention, precluding the detainee from letting anyone know what had happened, and the limited time given to detainees to transfer their contacts over to other phones.115 We heard too that detainees were not given the opportunity to collect toiletries or other personal items.116
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.117 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 (IMD0009)
107 Bhatt Murphy solicitors and Garden Court chambers (IMD0022); Bail for Immigration Detainees (IMD0012); Medical Justice (IMD0027). 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.
109 R (VC) v SSHD [2018] EWCA Civ 57
111 Independent investigation into concerns about Brook House immigration removal centre, A report for the divisional chief executive of G4S Care and Justice and the main board of G4S plc, November 2018, p 63
112 Independent investigation into concerns about Brook House immigration removal centre, A report for the divisional chief executive of G4S Care and Justice and the main board of G4S plc, November 2018, p 24
114 Ministry of Justice & HM Inspectorate of Prisons, HM Chief Inspector of Prisons for England and Wales Annual Report 2017–18, July 2018, p 77
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