Written evidence submitted by Freedom from Torture (IDD0011)

Introduction

Freedom from Torture welcomes this opportunity to provide written evidence in support of the Committee’s inquiry into immigration detention.

Freedom from Torture is a UK-based human rights organisation and one of the largest torture rehabilitation centres in the world. Each year we provide clinical services to more than 1,000 survivors of torture in the UK, the vast majority of whom are asylum seekers or refugees.

Freedom from Torture is opposed to the routine immigration detention of torture survivors. Clinically, it is well understood that detention per se is harmful to torture survivors. Faced with even a brief period in detention, many will experience re-traumatisation, including powerful intrusive recall of torture experiences and a deterioration of pre-existing trauma symptoms.

The Home Office recognises that detention is harmful for torture survivors, as indicated by the categorisation of ‘victim of torture’ as one of the indicators of particular vulnerability to harm in detention in the Adults at Risk statutory guidance (AAR guidance). Nevertheless, significant numbers of torture survivors continue to be detained. From January to September 2017, our Medico-Legal Report (MLR) Service received 101 referrals for suspected torture survivors in immigration detention. Clients who are already recognised as torture survivors and are in therapy with Freedom from Torture are also regularly detained – 14 of our treatment clients were detained between January 2016 and November 2017.

This submission focuses on the initial process of detention, including the decision to detain and screening for vulnerability, and the treatment of vulnerable persons subject to immigration detention, particularly the effectiveness of the Rule 35 process and the Adults at Risk policy. The section relating to the failure of the adults at risk framework to provide a protective mechanism (page nine onwards) is informed by a review of 19 cases, which were referred to our Medico-Legal Report (MLR) service between January and September 2017, which were accepted by our service and a standard letter was issued confirming this, and where there was a Rule 35(3) and a UKVI response letter within the referral bundle.

The experience of torture survivors in detention

The following evidence is extracted from the findings of a Freedom from Torture qualitative study reviewing the experience of torture survivors in detention in 2014 and 2015, based on interviews with clinicians and clients.[1]

Clinicians interviewed as part of the study, said that torture survivors, who have an existing level of vulnerability arising from trauma, are made more vulnerable when they are detained because they are strongly reminded of the context in which they were tortured. At a psychological level the environment of detention takes them back to a place where they previously faced existential threat, terror and absolute powerlessness. Similar feelings may be invoked by their current detention, leading to a recurrence or intensification of highly distressing trauma symptoms including flashbacks, intrusive memories and nightmares.

Clients described how vulnerable and distressed they felt in detention and linked this to:

i)       The ‘prison-like’ context, which they said took them back in their minds to the time that they were tortured in their home country;

ii)     Imminent threat of removal from the UK, which was felt as an existential threat provoking intense fear and distress; and

iii)   Disruption of support provided by Freedom from Torture and the lack of alternative adequate psychological support.

In such circumstances clinicians said it is not unusual for torture survivors to state that they would rather take their own life in the UK than face further torture or harm to their loved ones on return.

Clinicians expressed serious concern about the immediate impact of detention on their clients and in particular about the deterioration in mental health they observed though regular phone contact with them in detention and after their release. Based on the experience of these clients they expressed serious concerns about the impossibility of properly managing the mental health of torture survivors in a detention environment for even a minimal period of time.

They expressed concern about their client’s capacity to manage distressing new, pre-existing or more severe mental health symptoms in the detention environment where i) strategies they may have learned were forgotten due to acute stress, or were ineffective in such an inherently ‘unsafe’ environment, and ii) they are not able to access the support of their clinician or other familiar and trusted people, other than remotely by phone.

Clinicians observed that trauma-related mental health conditions such as PTSD present in different ways in different individuals depending on many factors. For example, one client expressed his mental distress about detention though anger, rejection of support and repeated statements of suicidal intent. The clinician explained how many months of work to establish trust and ensure the client engaged with therapy and could begin to manage trauma-related symptoms more effectively (including expression of anger) were undone by the act of detaining him.

In terms of longer-term impact, clinicians said that being in detention had been a profoundly re-traumatising experience for their clients, leading to deterioration in their mental health that persisted after release. Ongoing mental health symptoms included insomnia, nightmares, intrusive thoughts, anxiety, low mood, social withdrawal and in some cases suicidal ideation. Clinicians were concerned about longer term disruption to the therapeutic process and to rehabilitation work due to the person being detained and due to the lengthy process of re-establishing a sense of safety and trust, which are pre-requisites for effective trauma-focused therapy.

In addition, the disruption that detention causes in terms of the client’s accommodation and support situation takes a long time and a lot of work to resolve when they are finally released. The person may have been released to and accommodated by the Home Office in a different area to the one where they were previously living. In order to re-commence access to Freedom from Torture services they need to be re-accommodated which may take some time, leading to further disruption of the rehabilitation process.

The Adults at Risk framework

Background

Following Stephen Shaw’s first report[2] and, in particular, his recommendations relating to the definitions of and policy for managing vulnerable individuals in detention, the government introduced a new policy framework seeking to define ‘adults at risk’. The intention was to ‘recognise the breadth and dynamic nature of vulnerabilities and which will have a clear presumption against detention of vulnerable people’[3]. The adults at risk framework (encompassing the AAR Statutory Guidance[4], the Adults at Risk Caseworker Guidance[5] and the Detention Services Order 9/2016[6]) replaced Chapter 55.10 of the Enforcement Instructions and Guidance (EIG 55.10).

EIG 55.10 provided additional protection to particularly vulnerable detainees, above and beyond that afforded by the principles outlined in the rest of EIG 55[7]. The policy held that there must be a very strong presumption against detention, which could only be displaced in exceptional circumstances where those detainees were likely to be adversely affected by detention. Those with independent evidence of torture should have benefitted from this safeguard but our evidence[8] showed that poor implementation meant that the safeguard failed in practice. Rule 35(3) reports usually met the threshold of ‘independent evidence of torture’ for the purpose of EIG 55.10, but the reports were often dismissed as inadequate by immigration officers who failed to understand the correct standard of proof. The failing was not in the content of the policy but in its implementation by IRC medical staff and immigration officers (see pages 10 and 11 for detail of ongoing Rule 35 implementation problems).

Rather than address the failings in the implementation of the Rule 35 process and make changes to EIG 55.10 to reinforce the safeguards, the government used the opportunity created by the introduction of the adults at risk framework to restrict access to the protection it affords. One of the main ways in which the Home Office did this was to introduce a new torture definition within the AAR guidance. The definition which applied at the time was known as ‘EO torture’[9], and it established the irrelevance of whether the perpetrator was a state actor for the purpose of determining vulnerability with regard to detention, following an attempt by the Home Office to insert the UNCAT Article 1 definition into the Detention Rules Process Guidance in January 2013. The 2016 AAR guidance re-introduced the ‘UNCAT torture’ definition with an additional line clarifying that it covers acts carried out by terrorist groups exploiting instability or civil war to hold territory.

Organisations working with vulnerable detainees raised serious concerns at the time about the AAR guidance, including but not limited to the change in definition of torture. The Home Office chose to largely ignore these concerns.

Following the implementation of the guidance in September 2016, Medical Justice and seven detainees challenged the change in definition of torture and the court found the change to have been unlawful, because the new definition excluded from its ambit victims of torture covered by the definition in the previous policy who the evidence showed were particularly vulnerable to harm in detention, was contrary to the purpose of section 59 of the Immigration Act 2016, and lacked a rational or objective evidence base.[10] The Court ordered the Home Office to return to the EO definition and to review and reissue the guidance within a reasonable period of time.

In parallel, Steven Shaw carried out a second review of the government’s progress towards fulfilling the recommendations of his first review. These findings have been, or will imminently be, submitted to the Home Office and published later this year.

Without waiting for publication of Shaw’s updated findings and following an expedited 'consultation' with a limited group of NGOs including Freedom from Torture, the Home Office laid before parliament in March 2018 updated Detention Centre Rules[11] containing a further definition of torture, and updated AAR guidance[12] including a reference to the new definition.

Freedom from Torture is extremely concerned that, even with the latest amendments, the Adults at Risk framework affords a significantly lower level of protection to torture survivors than that which it replaced in 2016. The entire focus of the recent changes before parliament is the definition of torture with a slight change to the ‘catch-all’ provision to satisfy the Court. There is a very real risk that the debate will be similarly restricted and will fail to address the underlying problem with the Adults at Risk framework: namely the failure, as a comprehensive package of tools, to deliver a detention safeguard that is inclusive, effective and protective.

The need for a truly inclusive Adults at Risk safeguard

The fundamental purpose of the adults at risk safeguard is to protect all vulnerable individuals from the harmful effects of detention by facilitating identification and ensuring the right decision is made concerning detention, based on the available evidence. This principle must not be crowded out by a debate about the best way to define torture.

Torture survivors are explicitly recognised by the AAR guidance as particularly vulnerable to harm if detained and, if identified, the presumption is that such individuals will not be detained. However, the purpose of the ‘torture’ category is to serve as an indicator of particular vulnerability to harm in detention – it is not there to help define a criminal offence or to prove a claim for asylum. Under EO, ‘torture’ had been interpreted by the Courts as having a wider meaning than the UNCAT Article 1 definition, in order to reflect the different purpose of the policy and legal framework governing the detention of vulnerable individuals. The Secretary of State has the power to make the definition broad and so ensure the inclusive nature of the safeguard.

Freedom from Torture believes that the Home Office should not have isolated the torture definition from the rest of the adults at risk framework in March 2018 in order to change it in the absence of a holistic review of the whole safeguard. The department argues that they are simply complying with the Judge’s order in the Medical Justice case by making such narrow changes. In fact, the order places an obligation on the Secretary of State to review and reissue the AAR guidance, and reminds the Government that the legislation does not permit the guidance to privilege any one group, nor allow for the exclusion from protection of any particularly vulnerable person.

By focusing the amendments, and the debate, on an interpretation of torture, the Home Office avoids engaging with its wider obligation to protect all vulnerable detainees from harm. The failure to make any amendments to the other indicators within the guidance, to make any meaningful changes to the catch-all provision, or to consider how the wider indicators and catch-all relate to the Rule 35 process and Detention Gatekeeper function, effectively privileges one group of people (some torture survivors) and potentially excludes not only other torture survivors but other individuals who are particularly vulnerable to harm in detention.

The adults at risk framework fails to provide an effective mechanism for the identification and documentation of vulnerability.

The ‘torture’ category became the focus of recent amendments because, unlike other indicators in the policy, it carries, in theory at least, a clear operational pathway for the identification of a torture survivor within detention through Rule 35(3), with an expectation that the individual will be released subject to consideration of immigration factors. Since 2013, the Home Office has been seeking to narrow the definition in order to relieve the operational pressure on the Rule 35 process, which the department believed was being inappropriately used.

Freedom from Torture believes that the torture definition now cited in the updated Detention Centre Rules is drafted so that a significant proportion of detainees who would previously have benefitted from the EO definition will no longer do so and, furthermore, will be not be identified through a Rule 35(3) report. This is because the current definition before parliament is too complex to be easily applied by Home Office caseworkers and doctors in the identification of vulnerable persons. The concepts relied on in the proposed definition are clinically nebulous and invite a subjective judgment, for example, as to whether the victim did enough to resist the ill-treatment, or whether they are sufficiently robust to cope with it.

Operational guidance for caseworkers and doctors has not been finalised so there is no way to know how this definition will work in practice. However, we are concerned that the proposed definition of torture increases the evidentiary burden by asking doctors to extract additional contextual details from the victim. Contrary to Home Office claims, this renders the safeguard more restrictive than under previous guidance, places an operational burden on the Rule 35 process that it is insufficiently resourced to meet, and applies too high a standard of proof to a function that is primarily about identifying vulnerability.

Recommendations

1. Replace the “torture” and “victims of sexual or gender based violence” indicators with a more inclusive indicator modelled on the UNCHR detention guidelines, namely “victims of torture or other serious, physical, psychological, sexual or gender based violence or ill-treatment”. Such a definition would be more easily applied by caseworkers and doctors, and does not increase the threshold for reporting or the evidentiary burden for raising a concern.
2. Amend Rule 35 so that it mirrors the AAR guidance, so that Immigration Removal Centre doctors are required to report clinical concerns that a detainee demonstrates one of the indicators, or is otherwise concerned that the detainee is particularly vulnerable to harm in detention.

The adults at risk framework does not offer a protective mechanism to prevent harm.

The Adults at Risk guidance established two significant concepts which have had a seriously negative impact on torture survivors and other vulnerable detainees: the idea that evidence of vulnerability can be weighed to establish level of risk, and the act of balancing broad immigration considerations against that risk. These two elements constitute a profound step backwards in the government’s approach to the detention of vulnerable individuals.

Evidence levels

The AAR guidance introduced three levels of ‘evidence-based risk’ supposedly corresponding with increasing levels of vulnerability. In fact, the three levels correspond with increasing levels of evidentiary burden. These levels then carry increasing weight in the balance against immigration factors.

Self-declaration of vulnerability only meets a level 1 threshold, triggers no mechanism for further documentation and carries little weight regardless of the extent of vulnerability declared. Meanwhile, ‘professional evidence (e.g. from a social worker, medical practitioner or NGO)’ is deemed level 2 evidence. The only evidence capable of meeting the level 3 threshold is professional evidence ‘stating that the individual is at risk and that a period of detention would be likely to cause harm – in practice, this threshold is only met by a fully Istanbul Protocol (IP) compliant MLR (see below), or a Rule 35(1) report, the purpose of which is to identify an individual whose health is likely to be injuriously affected by continued detention.

The Home Office argues[13] that level 3 largely corresponds with the previous level of protection afforded to vulnerable detainees and that levels 1 and 2 are additional and open up access to protection under the policy. Our 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. In fact, the Adults at Risk Caseworker Guidance states clearly that a Rule 35(3) will normally be treated as level 2 evidence, and therefore subject to a far lower threshold than under EIG 55.10 for continued detention when assessed against the immigration factors. Bearing in mind that the Rule 35 process is the only viable route to obtain evidence of vulnerability for most people while in detention, the evidence thresholds and the decrease in weight given to Rule 35(3) significantly reduce the protection afforded to torture survivors in detention.

Rule 35(3) as level 2 evidence

By withdrawing the Rule 35 Process policy and failing to replace it with an equivalent under the Adults at Risk framework, the Home Office abandoned the idea of ‘independent evidence of torture’ and replaced it with this idea of ‘professional evidence’. This has the effect of watering down the value of the Rule 35(3) report.

In line with this, the DSO 09/2016 allows the immigration officer to decrease the weight attached to the report if the medical practitioner states that the report reflects a repeated claim rather than a reasoned medical concern (which the medical practitioner is entitled to do). Importantly, the Rule 35(3) report template states that it is only being completed because the medical practitioner has concerns that the detainee may have been a victim of torture. Additionally, the DSO confirms that the medical practitioner has no obligation to report an allegation if it does not cause them to be concerned. Finally, there is no requirement for the medical practitioner to apply the Istanbul Protocol terms or methodology to assess the consistency of the detainees account.

The result is that the Home Office is effectively raising the evidential threshold, which applies in practice to the Rule 35(3) report, far beyond what is required of the report in the Immigration Rules[14]. In our review of the 19 files referred to our MLR service all of the detainees subject to a Rule 35(3) report were accepted as an adult at risk but most were classified explicitly as level 2, and the rest were clearly treated as such for the purpose of consideration of immigration factors. While there is no explicit dismissal of the evidence as ‘insufficiently informed or insufficiently independent’ as Shaw found in his first report, this classification as level 2 evidence has the same effect of allowing immigration factors to carry more weight. Not one of the 19 cases in our dataset was released as a result of the Rule 35(3) report.

The classification of Rule 35(3) as level 2 illustrates not only a continued failure to trust the medical practitioner’s opinion, but also a misunderstanding of the role and required content of a Rule 35(3) report. The medical practitioner is required to record the account, including when and how the injuries were caused, note the physical evidence on a body chart and give their opinion on consistency of the medical evidence with the account given without recourse to the IP standards. The medical practitioner must also give an opinion on how the torture is currently affecting the detainee and the current impact of detention on the detainee. There is no requirement in the body of the DSO, nor in the template appended to the DSO, for the medical practitioner to state whether the detainee is fit or not for detention, and none of the Rule 35 reports that we reviewed contained a recommendation in this regard. Despite the absence of a requirement to do so, in the vast majority of the Home Office response letters that we reviewed, continued detention is justified on the grounds that the doctor did not indicate that the detainee is unfit for detention or did not diagnose any serious physical or mental health conditions likely to inhibit ability to cope in detention. If information necessary to enable the immigration officer to undertake meaningful consideration of the report is not included in the Rule 35 report – and an opinion on whether the detainee is unfit for detention may fall into this category – then the officer is obliged to request this information from the medical practitioner and to repeat the issuing process. None of the 19 cases we reviewed showed any indication that the immigration officer had returned to the medical practitioner for further information.

The AAR guidance introduced the requirement that all vulnerable individuals additionally present evidence that detention is likely to cause them harm in order to reach level 3 and outweigh the immigration factors in order to be released. We were alarmed by the number of Home Office response letters in our sample which included a statement by the immigration officer that the medical practitioner had not indicated that detention is likely to cause harm. Rule 35(3) is deliberately distinct from Rule 35(1) on this very basis. The threshold for Rule 35(1) reports is very high and it is difficult for a medical practitioner to predict whether continued detention is likely to be injurious to health. To do so requires thorough knowledge of the conditions manifested by the detainee, the likely effectiveness of any interventions and the likely duration of detention. In fact, such evidence can usually only be obtained once harm has already occurred which is not commensurate with a protective or preventive policy. Furthermore, this requirement reintroduces by stealth the concept of ‘satisfactory management’ – correctly criticised in Shaw’s first report.[15] This is neither the statutory purpose of Rule 35(3), nor is it practically realisable within the context of an IRC health service. As Ouseley J observed in the Medical Justice litigation, a Rule 35(1) report has a “significantly [higher threshold] than that required for a Rule 35(3) report, which focuses on the existence of an indicator rather than direct evidence of injurious effect on health. It is not aimed at the question of particular vulnerability to harm in detention, though it will cut across it…”.

Medico-Legal Reports (MLRs) as level 3 evidence

The Adults at Risk guidance identifies that individuals with an MLR from a reputable organisation should be counted as reaching the highest (level 3) evidence threshold, provided the report meets the required standards. This means that this evidence should be afforded ‘significant weight’ when balanced against immigration factors. This classification wrongly and dangerously raises the evidential threshold required to identify a torture survivor in detention to that required to document torture in an asylum claim (through an IP-compliant MLR). Furthermore, neither the Helen Bamber Foundation nor Freedom from Torture carry out MLR assessments in detention, and Medical Justice has limited capacity, so this safeguard is of minimal use for survivors of torture who are detained before they have claimed asylum.

As detention prevents access to either organisation’s MLR services, it therefore restricts the detainee’s ability to document their experience of torture for the purpose of their asylum claim, which will be determined in detention should release be refused.  For this reason, it is essential that the detention safeguard within the Asylum Policy Instruction (API) on MLRs[16] functions as intended. This requires individuals for whom a referral has been accepted by Freedom from Torture or the Helen Bamber Foundation to be released from detention in all but the most exceptional circumstances. This section of the API refers specifically to the suspended Detained Fast Track process, but the Home Office has confirmed to us that it also applies to individuals in the current Detained Asylum Casework cohort. Paragraph 19 of the AAR guidance embeds this concession into the adults at risk framework and states that, where an individual is detained during the consideration of their asylum claim and is successfully referred for an MLR, the API will apply.

We are concerned that there may be problems with the implementation in practice of this policy and that some detainees whose referral we have accepted are not being released from detention. We believe that part of the problem is the requirement that level 3 evidence state ‘that a period of detention would be likely to cause harm’. A letter accepting referral would never, and has never previously, made this assertion as it would be impossible for a Freedom from Torture clinician to make such a judgement based on a review of the papers during consideration of a referral. Previously the referral acceptance letter was sufficient independent evidence of torture to secure release in all but exceptional circumstances. It is illogical for the Home Office to give the referral letter less weight particularly following the litigation that resulted in the suspension of the Detained Fast Track process in July 2015. This made it clear that the Foundations’ concession was the only effective safeguard for torture survivors in detention in light of the failings of the screening and Rule 35 processes.

While we cannot produce an MLR for someone in detention, we do produce alternative documentation to confirm that a detainee was in treatment with us at the point of detention, and to describe their diagnosis, treatment and health needs. Bearing in mind that the individual will have met our remit in order to access the treatment, a clinical letter containing this level of information should meet the threshold of independent evidence of torture for the purpose of a detention review. Between January 2016 and November 2017, 14 people in treatment with Freedom from Torture have been detained. In 10 cases, we provided at least one clinical letter confirming that the individual was a survivor of torture, whose treatment with us – and rehabilitation – was interrupted by detention. While we believe these letters are taken into consideration in the decision to continue detention, they clearly do not carry the weight that they should. Nine of the 10 cases were subsequently released, but seven of those were subject to significant delay (between one and four months) following submission of the letter. 

Recommendations:

3. Remove the evidence levels from the Adults at Risk policy. A self-declaration of vulnerability can still carry less weight than documented vulnerability, but should always trigger further investigation into the claimed vulnerability.
4. Remove the requirement to comment on the likely impact of ongoing detention from the Rule 35(3) template, and from the Adults at Risk policy so that Rule 35(3) reports can be afforded the appropriate level of weight when considering whether to continue detention.
5. The standard referral letter issued by our MLR service and any clinical letter issued by Freedom from Torture should be classified as level 3 evidence when considering whether to continue detention.

Immigration control factors and the ‘balancing act’

The reason why a level 2 classification for a Rule 35(3) report is so dangerous for torture survivors is that it allows the Home Office to give more weight to immigration considerations in the ‘balancing act’ introduced by the Adults at Risk guidance. Under the previous policy framework, the burden lay on the Home Office to demonstrate that the high threshold of ‘very exceptional circumstances’ had been met in order to continue detention. Caselaw established that the crucial factors in this assessment were the risk of re-offending and harm, or if an imminent removal was possible.[17] Past criminal offending, liability to enforced removal and a refusal to leave voluntarily would not, alone, meet the high threshold.

The AAR guidance outlines the immigration factors to consider: the realistic prospect of removal within a reasonable period; public protection issues including a previous criminal history even if this bears no relation to immigration issues and relates to offences for which time has been fully served; not having taken up the option of a voluntary return, or not having complied with the process; having lived and worked illegally in the UK for some time. This list very significantly lowers the threshold below ‘very exceptional circumstances’ even for level 3 evidence.

The Home Office argues that the move away from the ‘very exceptional circumstances’ standard has not weakened the protection afforded. This is not correct. They have replaced a standard relating principally to the risk of re-offending, inflicting harm or absconding, as well as imminent removal, with a far broader range of factors, placing greater emphasis on non-compliance. This, in fact, introduces a much higher threshold for release: in Q2 2016, 39% of Rule 35 (3) reports resulted in release, but this dropped sharply after the introduction of the guidance and now stands at 15%.[18]

Our review of 19 cases referred to our MLR service suggests that the weight given to immigration factors not only far exceeds that previously applied under EIG 55.10, but even manages to exceed the instructions given within the Caseworker Guidance. In every case we reviewed, continued detention was justified on the grounds that removal was considered possible within a reasonable timeframe. However, in only one case was removal predicted within two weeks. In almost all other cases, the substantive asylum interview had not yet taken place and, allowing for the decision-making process and appeals, removal was anticipated in anything from four weeks to 14 weeks but no date had been set. On average, 10-14 weeks was given as the predicted wait for removal. We do not consider 10-14 weeks as a ‘reasonable’ timeframe to justify continued detention.

The immigration factors taken into consideration in the 19 cases included being a visa overstayer, and someone with no close ties in the UK to ensure compliance. By far one of the most prevalent justifications for continuing detention noted in our overview of the 19 cases is the dismissal of the asylum claim as ‘late and opportunistic’ because it was made in detention purely in order to prevent removal. Not only does this prejudge the outcome of the asylum claim but it also ignores that, for many asylum applicants, detention is the first point at which they will encounter free legal advice. In our experience, torture survivors may make very late claims due to the level of trauma they have endured, their fear of authorities, the shame and stigma attached to their experience, the precarious and often isolated nature of their lives, and their ignorance of the protection framework. Another justification used by immigration officers is the argument that, now aware that the Home Office wishes to remove the individual, the applicant will not comply with immigration control measures should they be released.  There is no way for the detainee to argue against this logic.

Following the suspension of the Detained Fast Track, detention largely now happens as a result of enforcement activity. Therefore it is no surprise that many detainees within the 19 cases we reviewed had lived and worked in the UK illegally and some had failed to report when required. However, the question of how much weight is attached to these factors becomes pertinent at this point. There are many reasons why a torture survivor may have lived or worked illegally in the UK or may have refused to take up voluntary return, particularly when it is now promoted before the substantive interview has even taken place. Beyond these, the threshold to justify continued detention of a torture survivor must necessarily be high bearing in mind the wealth of independent evidence demonstrating the impact of detention on torture survivors, and the Home Office’s own acknowledgement that there is a presumption against detention for such individuals. In none of the cases we reviewed did we see any evidence of criminal activity punished with a sentence of 12 months or more, nor a risk of re-offending or harm to the public. Under EIG 55.10, it is hard to see how detention could have been lawfully maintained in any of the 19 cases we looked at.

Recommendation:

6. Replace the broad range of immigration factors with the threshold of ‘very exceptional circumstances’ to justify the continued detention of those identified as particularly vulnerable to harm in detention.

The effective function of the operational safeguards

The Rule 35 process

Many problems raised previously concerning the function of the Rule 35 process remain despite the introduction of the Adults at Risk framework. There is no evidence that training or new templates have improved the accessibility or quality of the reports produced by medical practitioners. Detainees must have a medical screening within 2 hours of arriving in detention, during which they are asked if they have been tortured. There is no guidance on how this question is asked in the screening and we do not know whether the definition of torture is explained by the nurse, so many detainees will not know that what happened to them counts as torture. The detainee should be given an appointment with a GP within 24 hours of admission, during which a Rule 34 examination should take place. In the spirit of the presumption that vulnerable people should be released as soon as possible, it is assumed the Rule 35 should be carried out swiftly but in practice it is not required and so does not happen. An overview of our 19 cases suggests that many detainees are still waiting a long time for a Rule 35 report – many are detained for months before the Rule 35 is produced. Furthermore, in over the half the cases we reviewed the Home Office failed to respond to the Rule 35 report within the two-day deadline.

Our review also indicates that medical practitioners are still not completing the reports to an adequate standard to allow the Rule 35 and Adults at Risk safeguard to function as intended. Most do document the account of torture but with varying levels of detail. In a minority of cases there was no body chart to note the location of scars, and in all but a handful of cases, the medical practitioner makes no reference whatsoever to any mental health issues relating to the experience of torture. As mentioned earlier, in the absence of this essential information, the immigration officer should revert back to the medical practitioner to request further information. In the 19 cases we reviewed, there is no evidence that this happens. This may explain why so many of the Home Office response letters in our sample rely on the absence of a diagnosis of serious physical or mental health conditions indicating the detainee is unfit for detention as justification to refuse release under Rule 35. Only two of the Rule 35 reports we reviewed for this submission included an opinion by the medical practitioner on the current effect of detention on the detainee.

According to DSO 09/2016 the medical practitioner should escalate their concerns to the Home Office IRC management team if they feel that their Rule 35 report has not been acted on appropriately. Our review of the 19 cases did not show any indication that the medical practitioners involved had reviewed the Home Office response, had taken any steps to challenge the refusal of release, or had monitored the wellbeing of the vulnerable detainee to see if their condition worsened during their detention. It should not be necessary to monitor the deterioration of the health of vulnerable detainees in order to satisfy a process that is supposed to be preventive, but good medical practice and the duty of care towards the patient suggests that they should be doing this following identification of vulnerability through a Rule 35.

Shaw’s first report was highly critical of the Rule 35 process and called for the Home Office to consider an alternative to the current Rule 35 mechanism, including whether doctors independent of the IRC system (for example, Forensic Medical Examiners) would be more appropriate to conduct the assessments. We strongly caution against any change that would make it harder for a survivor of torture to be identified and released. To suggest that a higher level of expertise and qualification is required in order to flag up a concern that someone may be a torture survivor, would contribute further to a rise in the evidential threshold and oblige the detainee to prove to a higher standard that he or she is a victim of torture in order to obtain release. DSO 09/2016 defines a medical practitioner as a “person who is vocationally trained as a general practitioner and fully registered within the meaning of the Medical Act 1983”. This is more than sufficient to perform the task required under Rule 35 (bearing in mind the low standard of proof that applies). However, this is contingent on the medical practitioners being provided with the time required to perform their function, and being held to the standards of care expected in general medical practice.

Shaw’s report identified the problem at the core of the Rule 35 process – ‘that the Home Office does not trust the mechanisms it has created to support its own policy’. We believe the problem goes beyond a lack of trust, to a fundamental neglect of the process characterised by insufficient resourcing for Rule 34 medical examinations and the completion of Rule 35 reports. The attempt to narrow the torture definition in the Rule 35(3) process and, by extension, the adults at risk framework is no more than an effort to reduce the operational pressure on the Rule 35 process and tackle a perceived abuse of that process.

Recommendations:

7. 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 low evidential threshold required.
8. Rule 35 assessments should take place within 24 hours of a health screening appointment or a Rule 34 examination that identifies a possible torture survivor.

The Detention Gatekeeper Team

As part of the adults at risk framework, a Detention Gatekeeper Team has been introduced as the only safeguard in place prior to detention. This team has responsibility for assessing vulnerability and advising caseworkers on detention decisions. However, Home Office staff responsible for the advice and the ultimate decision do not have any contact with the individual at this point and can only rely on information that is already available on the individual’s file in order to identify if they are vulnerable or ‘at risk’.

The immigration officer involved in the enforcement activity is the only Home Office staff member who has direct contact with the vulnerable adult prior to detention and therefore, is the only Home Office representative in a position to identify current vulnerability. However, there is no process in place to facilitate active screening of vulnerability at the point of enforcement activity and prior to detention so it is extremely unlikely that any questions regarding vulnerability, or any attempts to identify indicators, are applied at this point.

For individuals who have a contact history with the Home Office, there may be information available to the Gatekeeper Team such as an asylum screening interview, or medical evidence relating to the asylum claim. None of this evidence is likely to engage with the question of the likely harm of detention. For those who made their claim a long time ago or who have never made an asylum claim, there is likely to be very little information regarding vulnerability on file. There may also be no pre-existing record of vulnerability because the individual has never needed to or had the opportunity to self-identify or has had no awareness of the implications of disclosure of vulnerability for an asylum claim or the routing of that claim. It may only be in detention that the individual has the opportunity to go through a screening process in which s/he is asked about torture and trauma, has contact with a legal representative familiar with the identification of vulnerability, and is provided with an opportunity to document that vulnerability through the Rule 35 process.

This means that people who – according to the AAR guidance - should not normally be detained are being routed into detention at the point of enforcement activity.

Our MLR Service receives referrals from solicitors who represent people in detention who have been identified as possible torture survivors. Between January and September 2017, we received 101 referrals from detention. Of these, 42 of the referrals we accepted had a Rule 35 report on file confirming that s/he was a torture survivor. Each of these individuals could have been identified prior to routing into detention if an attempt had been made to identify vulnerability at the point of enforcement activity. By the time the referral was made to our MLR service, many of these individuals had been in detention for some time, and their mental and physical health had significantly deteriorated.

For the adults at risk safeguard to work, Home Office needs to put in place a screening process to apply at the point of enforcement activity to facilitate the disclosure of vulnerability prior to a decision about detention.

It is important to recognise that even with a screening process in place, some people will not feel able to disclose experiences that indicate vulnerability, at the point of enforcement activity. For this reason, it is crucial that non-disclosure at this point is not subsequently used by the Home Office to make a negative assessment of someone’s credibility, if they later disclose a traumatic experience as part of a protection claim. This risk does not outweigh the importance of seeking to facilitate disclosure of vulnerability at crucial points in the immigration enforcement process.

UNHCR’s Vulnerability Screening Tool[19] may offer a model for such a screening process. The tool has been developed “to help guide and inform frontline workers and decision-makers on the relevance of vulnerability factors to detention decisions, referrals to alternatives to detention, open reception facilities, community-based placement and support options, in the context of asylum and migration procedures and systems.”

The tool has been designed to be used by non-specialist frontline workers and so reporting centre staff, immigration officers, asylum caseworkers, and members of the Detention Gatekeeper Team could be trained to use it. The tool focuses on four key vulnerability domains based on widely recognised indicators (child; sex, gender, gender identity, sexual orientation; health and welfare concerns; and protection needs) with a scooping-up provision to catch any additional vulnerability factors. It also encourages a dynamic approach to the identification of vulnerability and advocates for regular screening both before and after the decision to detain. Unlike the AAR guidance, the tool does not rely heavily on documentary evidence of vulnerability but acknowledges that, for the purpose of screening a far lower evidential threshold must apply and so observations and self-disclosure may be sufficient.

We understand that it is the Home Office intention to build the capacity of ‘first responders’ – frontline staff who are in a position to identify vulnerability – to do so more effectively. We welcome this intention but we caution that it must be backed up by clear and consistent guidance as well as practical tools and processes to aid identification.

Recommendations:

9. We recommend that the Home Office should develop a screening process, in consultation with relevant stakeholders, to apply at the point of enforcement activity (raids or reporting events) to facilitate the disclosure of vulnerability prior to a decision about detention. This could be based on the UNHCR Vulnerability Screening Tool.
10. All guidance relating to the identification of vulnerability should be brought into line so that it is consistent across all Home Office functions and allows those functions to collaborate to identify adults at risk, highlight all operational risks associated with that vulnerability, and inform all decisions made concerning that individual.
11. All the operational safeguards in place to prevent the detention of torture survivors should be examined thoroughly, including those responsible for preventing torture survivors being routed into detention such as the Detention Gatekeeper Team.
12. There needs to exist a mechanisms by which the operation of the entire adults at risk framework – including the Detention Gatekeeper Team and the Rule 35 process - can be effectively and independently monitored, and accurate data can be published.

Conclusion

While the adults at risk framework may enable the identification of more vulnerable individuals, this identification is of no value if, due to the absence of documentary evidence of risk of harm, the excessive weight carried by immigration factors or a predicted removal date, the absence of any screening pre-detention, and the dysfunction of operational safeguards within detention, the individual is not released.

The Home Office’s fundamental failing is in seeking to tweak elements of the framework in isolation, in the hope of alleviating some of the operational pressure on that part of the process. It is essential that the department views the framework holistically and balances any changes to one part of it against likely impact or implications for the whole safeguard. The Home Office must also return to the first principles that motivated the creation of the adults at risk framework: to “strengthen the approach to those whose care and support needs make it particularly likely that they would suffer disproportionate detriment from being detained”.

19 April 2018