WRITTEN EVIDENCE FROM FREEDOM FROM TORTURE (RWA0020)

JCHR scrutiny questions  

Question 3: Does allowing for some claims based on compelling evidence relating to particular individual circumstances affect the Bill’s compliance with human rights? 

Question 4: Does the way in which the Bill deals with applications for interim remedies from domestic courts, including by allowing them only in narrow circumstances, comply with the UK’s human rights obligations? 

What does the Bill do? 

Clause 4 of the Safety of Rwanda (Asylum and Immigration) Bill (Safety of Rwanda Bill) sets out that individual decisions may still be made, taking the individual circumstances of the person in question into consideration. It explains that clause 2 does not prevent Home Office decision makers, or courts and tribunals, from considering and deciding whether it is unsuitable to send a person to Rwanda. However the test is “compelling evidence relating specifically to the person’s particular individual circumstances” and explicitly excludes any grounds relating to the general safety of Rwanda or the risk of refoulement.  

Clause 4(3) to (4) then restricts the ability of the courts and tribunals to grant interim relief to where they are satisfied that the person would face “a real, imminent and foreseeable risk of serious and irreversible harm” if sent to Rwanda. This does not apply where the decision to remove a person has been made under the Illegal Migration Act 2023 (IMA). In this situation section 54 IMA, which is even more restrictive as it is a blanket prohibition on the grant of interim relief, will apply instead (clause 4(6)). 

Clause 4(5) then explains that the examples of what amounts to “serious and irreversible harm” as set out at section 39(4) to (8) of the Illegal Migration Act 2023 will apply. These examples include death, persecution,[1] torture, and inhuman or degrading treatment or punishment. This clause needs to be considered alongside clause 3 which disapplies sections of the Human Rights Act, namely section 2 (interpretation of Convention rights) and section 3 (interpretation of legislation). Importantly, sections 6 to 9 HRA[2] have been disapplied as they relate to clauses 4(1) and 4(4) – the two subclauses to which questions 3 and 4 of the call for JCHR evidence relate. 

With this analysis in mind it is important to reflect on the adequacy of the procedure within the UK to identify those who are unsuitable for removal to Rwanda (including those at risk of harm) and to allow for the production and consideration of ‘compelling evidence’.  

Freedom from Torture’s (FfT) expert analysis 

FfT has extensive experience of supporting survivors of torture, many of whom have undertaken dangerous journeys and have travelled through multiple countries before arriving in the UK. Some of our clients have arrived in the UK in small boats crossing the Channel having endured exploitation and abuse en route. Studies have found that up to 44% of individuals who claim asylum in countries like the UK are survivors of torture.[3]

FfT is concerned that the way in which removals to Rwanda will be implemented under the Safety of Rwanda Bill and the IMA will lead to a systemic failure to identify survivors of torture as such. It will be an accelerated process that relies on individuals essentially self-identifying as torture survivors very early in the process, in a manner which past experience suggests will frequently not happen. FfT’s expertise and experience indicates that this will prevent the Home Office from taking into account a critically important factor in deciding whether an individual is ‘suitable’ for removal i.e. whether or not they are a torture survivor. If this is the case then any consideration of vulnerability, including physical and mental health conditions, will be inadequate as a means of assessing suitability or the risk of sending an individual to Rwanda. 

The psychological barriers to self-disclosure or the identification of torture survivors  

Individuals who have been tortured are likely to develop a range of mental health problems including but not limited to Post Traumatic Stress Disorder (PTSD), anxiety, depression, self-harm and suicidality.[4] Cumulative trauma of any kind increases the risk of poor mental health outcomes, meaning that if tortured individuals have experienced other traumas prior to or subsequent to the torture, or multiple episodes of trauma, then the risk of poor mental health outcomes, physical problems and difficulties with functioning are increased.[5]

When individuals experience a traumatic event, the subsequent memory of the event can differ from a normal ‘bad’ memory due to specific neurological processes that can occur under extreme stress. This can result in the intrusive symptoms of PTSD, including flashbacks and nightmares, which cause the individual to re-live the trauma as if it were happening again in the present time.[6] In addition, the overall memory is often impaired in those who have experienced trauma, meaning that individuals may not be able to place events in chronological order or relay individual events in a clear and coherent manner.[7]

These problems are likely to be exacerbated if an individual is detained (as will be the case for many of those under consideration for removal to Rwanda). Detention exacerbates existing mental health problems, can trigger re-traumatisation where an individual was detained when tortured, and may cause stress, anxiety and distrust, all of which can significantly affect memory and recall.[8]

For these reasons, survivors of torture are less likely to disclose information when asked, seek assistance, or volunteer information and/or provide information allowing the identification of vulnerabilities, particularly if it will cause PTSD symptoms where there has not yet been access to treatment for this condition. Emotions such as shame (highly prevalent in survivors of torture) further reduce the ability of individuals to disclose details of their experience.  

The screening interview 

The assessment of suitability for removal to Rwanda will rely heavily on what is disclosed during the screening interview. In a screening interview the applicant is asked a series of closed questions about, inter alia, their identity, journey to the UK, health, and family members. They are also often asked about the nature of their claim but are advised not to go into detail as they will – if admitted to the asylum process - have the opportunity to give details later in their long asylum interview.  

Survivors of torture face substantial barriers when pressurised into providing a detailed account of their experiences within a short time frame and under conditions that are ill-suited to disclosure. Generally, longer substantive asylum interviews are often more conducive to disclosures of trauma, and this is reflected in the Home Office policies on conducting interviews, which gives guidance to ensure that substantive interviews conform with established, trauma-informed best practices. 

No matter how carefully caseworkers apply the standards and principles of best practice in trauma-informed interviewing, due to the stage at which it is conducted, its setting and length, a screening interview is not, in FfT’s view, an environment conducive to eliciting the requisite level of disclosure or which is likely to reveal clear indicators of vulnerability. 

Documenting torture/compelling evidence 

Medico-legal reports (MLRs) play a critical role in identifying torture survivors, assessing their needs, documenting the consistency of their account with the physical and psychological consequences of torture, and providing important information to contextualise the behaviour of the claimant, as part of the immigration process.  

MLRs are detailed forensic reports documenting and evaluating physical and psychological injuries attributed to torture used to assist decision-makers in individual asylum applications. MLRs are often the only source of independent evidence available to corroborate the individual’s account of past torture, and are therefore central to the determination of many protection claims, particularly where a survivor of torture may struggle to give a proper account of their history or may make late disclosures resulting in questions arising as to their credibility.  

MLRs can also provide clinical explanations for issues such as differences within or between accounts provided by a claimant, a claimant’s late disclosure or their lack of memory, and can inform an assessment of risk associated with removal from the UK. They are also relevant to decisions on detention and can also inform what adaptations are needed to facilitate participation in immigration processes and related court proceedings. For example, an MLR may identify that a survivor of torture is not fit to be interviewed, or to give evidence in court. MLRs can also identify suicide risks associated with removal that can be critical to a successful human rights claim based on Article 3 ECHR.  

MLRs can, however, take a significant amount of time to prepare. The Home Office has recognised in its Medical Evidence API[9] that MLRs could take up to five months to produce and allows for a five month suspension of the process accordingly. The API recognises that there are a range of reasons beyond the Foundations’ control as to why an MLR may take a considerable amount of time, including a high level of trauma or a long history of torture or multiple injuries requiring documentation, illness on the part of the applicant or the clinician or interpreter, or a decision not to release an applicant from detention. 

The timescales for the implementation of removals to Rwanda would not allow for the preparation and submission of such reports, which creates significant risks for survivors of torture, who often depend on thorough assessments and processes to assist them in disclosing their vulnerabilities.  

Who we are: 

Freedom from Torture is the only human rights organisation dedicated to the rehabilitation of torture survivors who seek refuge in the UK.  We do this by providing clinical, legal and welfare services to more than 1,000 torture survivors every year at our specialist centres across the UK.  We welcome the opportunity to provide evidence to the Committee based on our understanding of international human rights law as it applies to survivors of torture in the UK, and our knowledge of the UK asylum legislative and operational framework. 

(19 January 2024)

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