Written evidence submitted by Medical Justice (IDD0020)

In recent years there have been two major reviews into the operation of immigration detention in the UK – the joint APPG on Migration and APPG on Refugees “Inquiry into the use of Immigration Detention” and Stephen Shaw’s “Review into the Welfare in detention of Vulnerable Persons”. Both reports identified a systematic overreliance on immigration detention, too many vulnerable people detained for too long, inadequate healthcare provisions and a failure of existing safeguards. The reviews found shortcomings in both the identification of vulnerable people and in the policies designed to maintain wellbeing. In addition, the literature review by Professor Bosworth demonstrates incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability. The conclusions of these two reviews are before the committee so this submission will focus on developments following the first Shaw review.

The initial process of detention, including the decision to detain and screening for vulnerability

We are concerned about the quality of decisions to detain – consistently more than 50% of those detained are released back into the community, bringing into question the decision to detain in the first place.  In addition, identification of those unsuited for detention according to the Home Office’s own Adults at Risk policy appears to be inadequate.

Following the recommendations of the Shaw review a Gatekeeper team was set up in June 2016 to scrutinise all proposed detentions and to “ensure that there is no evidence of vulnerability which would be exacerbated by detention”[1]. We are concerned that there is no active screening for vulnerabilities, that the Gatekeeper Team makes decisions based purely on available information and does not invite submissions from the detainee or their representative. Even where there is evidence of vulnerability on file, we have seen individuals detained without apparent meaningful assessment by Gatekeeper team.

Q, a victim of torture with well documented diagnosis of depression and PTSD, was detained despite having previously attempted suicide in detention and having extensive medical evidence, which had previously deemed sufficient to justify a grant of discretionary leave to remain in the UK.

T was subjected to physical and sexual abused as a child and as a result had significant mental health problems. She was detained in 2016 and released after a Rule 35 report set out her scarring and mental health problems. In 2017 she was re-detained, despite this well documented history, and released 20 days later following a second Rule 35 report.

In addition, it appears that roughly the same proportion of detainees (around 10%) receive Rule 35 reports as before the introduction of the AAR policy indicating that there has been no significant drop in vulnerable people detained. The HMIP inspection of Yarl’s Wood in 2017 found “that almost one in five detainees were assessed to be at the higher levels of risk”[2] whilst a 2017 inspection of Harmondsworth found 40% of detainees were considered to be adults at risk according to the policy[3]. 

The treatment of vulnerable persons subject to immigration detention, particularly the effectiveness of the Rule 35 process and the Adults at Risk policy

The Adults at Risk policy, which was introduced to protect vulnerable people, has led to more vulnerable people being detained for longer. Thus the policy in place now is less protective than the previous policy (in 55.10 of the Enforcement Instructions and Guidance). This is due to several serious issues with the AAR policy:

Vulnerability and the move away from a category based approach

The policy’s interpretation of ‘dynamic assessment of vulnerability’ has led to a weakening of the previous protective categories. A focus on holistic assessments of vulnerability can have obvious benefits however, the way it is applied in the AAR policy serves to remove the protection of belonging to a category recognised as at increased risk of harm in detention, such as victims of torture.

We recommend reinstating a category-based approach to identifying vulnerability where demonstrating that one belongs to a category at increased risk of harm in detention triggers protection from this risk. In addition, there should be an effective catch-all category which captures those who are particularly vulnerable to harm in detention but who do not fall within one of the pre-set categories

AAR evidence levels and the additional requirement to demonstrate likely harm

The introduction of different Levels of Evidence of risk has led to a lowering of the threshold for maintaining detention of those at risk of harm in detention. It is important to bear in mind that these levels are a measure of available evidence and not of vulnerability. Someone assessed as an Adults at Risk level 1 is not necessarily less vulnerable than someone assessed as level 2 – they simply have less evidence of said vulnerability. So, someone very vulnerable could end up being detained for a long time due to lack of evidence or issues with credibility which may in fact be the result of this very vulnerability.

For example, a victims of trafficking who entered the country illegally and claimed asylum late – all as a result of their trafficking – have their detention maintained due to these ‘immigration factors’ even in cases where the individual has a ‘reasonable grounds decision’ accepting that it is likely they are a victim of trafficking. Or someone who has been deported and re-trafficked to the UK has their detention maintained on account of having breached their deportation order.

The Levels of Evidence are balance against a wide range of ‘immigration factors’ e.g. overstaying, late asylum claim, removal possible imminently, could potentially be used to outweigh any risk of harm. These can hardly be considered exceptional circumstances. In addition to demonstrating that they belong to a category of persons identified as at increased risk of harm in detention the AAR policy requires that detainees demonstrate that they are likely to suffer harm in detention to qualify for protection equivalent to ‘very exceptional circumstances’ (the threshold in the previous policy).

Evidence that a person is ‘likely to suffer harm’ is difficult to obtain. In practice most detainees are unlikely to obtain such evidence until significant harm has already occurred, thereby encouraging a ‘wait and see’ approach whereby vulnerable individuals are detained despite their recognised increased risk of harm until such time as they can demonstrate that they are suffering harm.

This change is reflected in the release rate following Rule 35 reports. Following a slow but steady increase resulting from targeted training of doctors and case workers, the most recent data shows a catastrophic decline in release rates following a Rule 35 report after the introduction of the Adults at Risk policy in Q3 2016 – meaning vulnerable persons are detained for longer. See graph below:

We recommend abandoning levels of evidence in the AAR policy to ensure that the detention of all those identified as particularly vulnerable to harm in detention can be detained only if there are ‘very exceptional circumstances’. The policy should retain the commitment for a self-declaration of vulnerability to trigger a duty of inquiry into the asserted vulnerability.

Definition of torture

The Adults at Risk policy initially introduced the United Nations Convention Against Torture (UNCAT) Article 1 definition of torture to the AAR policy and Rule 35 reports. This was found to be unlawful in a challenge brought by Medical Justice and others v SSHD as the narrower definition served to exclude some individuals, who the evidence showed were particularly vulnerable to harm in immigration detention, from the ambit of the policy. This was contrary to the statutory purpose of section 59 IA 2016, which did not allow the statutory guidance “to exclude some particularly vulnerable people” (§149).

The UNCAT definition for Rule 35 (3) reports was in place from the introduction of the AAR policy on the 12th of September until being suspended on 7th of December following an order by the High Court. The impact of the change can be seen clearly in the graph below, where the percentage of detainees entering detention who received Rule 35 reports fell sharply after the introduction of the Adults at Risk policy introduced the new definition of torture.

The Home Office have now laid a statutory instrument with a proposed new definition of torture before parliament. We are concerned that this definition still excludes some victims of torture and that it is too complex to be effectively applied by case workers and doctors working in immigration detention. We, and other NGOs, have tried to raise these concerns with the Home Office who have ignored our concerns.

We recommend that the “torture” and “victims of sexual or gender based violence” categories in the AAR policy are replaced with a more inclusive category modelled on the UNCHR detention guidelines, namely ‘victims of torture or other serious, physical, psychological, sexual or gender based violence or ill-treatment’ and that this change is reflected in the Rule 35 mechanisms to allow a broader set of indicators of risk to be identified.

Ineffective safeguards in detention

The AAR policy has not improved identification of those at risk in detention. The policy relies heavily on the Rule 35 process despite the Shaw Review concluding that “no one expressed any satisfaction with the current arrangements” (p.102). There is a gap in reporting mechanism for those who qualify as Adults at Risk but are not necessarily victims of torture, thus not covered by Rule 35 (3) – these include many of the groups that were added following the recommendation of the Shaw Review – victims of sexual and gender based violence, transsexual persons, those with PTSD or learning difficulties, victims of trafficking. Rule 35 (1) and (2) to report on suicidal ideation and concerns that continued detention will be injurious to health are little used and represent an inappropriate threshold. No rule 35 report is required for e.g. survivors of domestic violence unless it is deemed torture or for transsexual detainees, those with PTSD etc.).

We recommend that the Rule 35 process is updated to ensure that it can effectively identify all vulnerable groups – e.g. redraft Rule 35 reports to reflect the wider UNHCR category (see above) to reflect AAR policy on vulnerability, lower the threshold for reporting health issues and reinvigorate the reporting of suicide and self-harm risk. Rule 35 or other assessment should happen within 24 hours of declaration or suspicion of someone being at risk. Provide bespoke training to ensure doctors and case workers are properly trained in the process.

Lack of follow up of those identified as vulnerable

There is a lack of follow up of those detained despite being identified as at increased risk of harm in detention – this means when harm does substantiate this is often initially missed.  Where someone is defined as an Adults at Risk, and a decision has been made that detention should be maintained despite this, there is a very troubling lack of follow up on this vulnerability.

“At both Brook House and Morton Hall, we obtained lists of detainees identified by the Home Office as being at risk of harm under the new policy, but neither the Home Office teams at the centres or custodial managers had these lists. They could not, therefore, systematically identify and support all at risk adults, nor monitor the impact of detention on them over time.”[4]

The management of Immigration Removal Centres, including provision of health services

Inadequate healthcare provision

We continue to be extremely concerned about the quality of healthcare provided in immigration detention centres. The care provided fails to meet equivalence with that provided in the community, mental health services continue to be inadequate or inappropriate. There has been little change in the healthcare provision following the Shaw Review, that we are aware of, and we continue to see serious failings in healthcare provisions, around the quality of care, around the attitude of staff and in particular in relation to mental health services.

Ongoing issues, many of which were raised in the previous Shaw Review: Staff shortages, unfilled positions and use of locum staff continue to be an issue[5]; long waiting times (including for R35 appointments) with some of our clients waiting 2-3 weeks for Rule 35 appointments;[6] lack of staff training in trauma and mental health, plus failures in Home Office safeguards etc, leads to mental health issues not being picked up and vulnerable people lingering in detention; we have seen instances of poor use of interpreters (including in Rule 35 assessments) where misunderstandings have potentially led to serious consequences for the persons immigration case; we continue to be very concerned about the lack of, or delays in, mental health assessments. We continue to see poor identification of vulnerability; poor quality Rule 35 reports with very little detail and little follow up on identified vulnerability outside of this process. There is poor communication and cooperation between Home Office and healthcare around vulnerability. There is a lack of healthcare participation in ACDT process.

Deaths in immigration detention

There has been a significant increase in deaths in detention in the last few years with 2017 being the deadliest year on record with 10 deaths in immigration detainees in detention or shortly following release. Since the introduction of the Adults at Risk policy there have been 14 deaths, as many as in the 5 years preceding the introduction of the policy. Of particular concern is the increase in self-inflicted deaths. We are concerned that the PPO are not investigating deaths from detention post-release due to resource constraints which means that these deaths are not investigated and any lessons that could potentially be learnt are missed.

Culture of abuse

We are extremely concerned about the culture of abuse which has been evidenced in the recent string of undercover documentaries from Yarl’s Wood, Harmondsworth and Brook House IRCs. The apparent abuses documented in the Brook House Panorama programme are all the more worrying as they seemed to show collusion across the agencies in the centre – from apparent assaults by custody officers to the manipulation and falsification of records by healthcare staff witnessing the encounter to the complicity of Home Office staff who should be acting as contract monitors on the ground. There are reasons to fear that similar conditions exist in other IRCs across the UK. 

We welcome this inquiry by the Home Affairs Select Committee. It is time for a proper review of the environment that allows this kind of culture to emerge within institutions - from the government’s policy and rhetoric of ‘hostile environment” which criminalises and dehumanises migrants, to the culture of disbelief within the Home Office, through to the impact of outsourcing and privatising of services. 

The adequacy of complaint and oversight mechanisms

We have ongoing concerns about the adequacy of the complaint process, these were detailed in our report Biased and Unjust – The Immigration Detention Complaints Process.

The scale of the detention estate, its routine nature and the culture that this has encouraged have arguably taken it beyond the capacity for effective oversight. The repeated accusations and documentation of abusive behaviour indicates a deeper issue with staff culture across the agencies in the detention system. As the former Prison and Probation Ombudsman Nick Hardwick observed “The nature of those held, the imbalance of power between detainee and gaoler and the fact that the work of the institution takes place behind high walls, out of sight, creates the conditions in which it is all too easy for abuse to take place. However, in my view, the greatest risk is the normative effect those conditions create. Away from public scrutiny, it is all too easy for even well intentioned staff to become accepting of standards that in any other setting would be unacceptable.”[7]

The process and scale of immigration detention dehumanises all those caught up in it and it is no longer merely a question of the mechanisms of oversight being ineffective but that the conditions for effective oversight are undermined by the nature and scale of detention.

However, we are concerned by the ongoing lack of openness and transparency on the part of the Home Office. It is essential that rigorous and transparent monitoring extends beyond the current Shaw review to ensure the welfare of vulnerable people in detention.

The treatment of immigration detainees in the prison estate

We are concerned about the lack of safeguards extended to those held under immigration powers in prisons and recommend that the protections of these policies, including Rule 35 (or other mechanism) and consideration by the Gatekeeper team and case progression panels to all immigration detainees, including those detained in prisons.

Time Limit and Alternatives to Detention

We believe that immigration detention is harmful and indefinite detention is particularly harmful. However, a time limit will never adequately address the problems with immigration detention and may in fact serve to legitimize detention up to the given limit. We frequently encounter detainees for whom even a single day in detention is too much and results in ongoing damage to their health. We welcome any initiative which reduces the time detainees spend in detention however, a time limit fails to address the simple fact that immigration detention is unnecessary, unjust, harmful, ineffective and a black mark on our society.

Medical Justice, April 2018