Immigration Detention (Victims of Torture)

Debate between Kate Green and Joan Ryan

Thursday 14th June 2018 Westminster Hall

[Joan Ryan]

I know that those APPGs do valuable work. After seeing examples of the harm caused to vulnerable adults by immigration detention—I am sure we will hear more today—I hope the Government will pay more serious attention to this than their legislation from past years demonstrates, particularly since the introduction of the adults at risk policy in 2016.

[Kate Green (Stretford and Urmston) (Lab)]

I congratulate my right hon. Friend on securing the debate. I draw the House’s attention to my entry in the Register of Members’ Financial Interests relating to the support I receive for my work on asylum and immigration. Does she agree that, for those who have already suffered torture and persecution in their home countries and who flee here for security, to have that pain compounded in detention, with abuses against them carried out by those who detain them, is the ultimate outrage and something of which we should be deeply ashamed?

[Joan Ryan]

Absolutely. I will later ask the Government whether they are not ashamed of the harm caused in their name and which it is within their gift to change—not only is it within their gift, it is under the instruction of the High Court.

The debate provides an important opportunity to scrutinise these matters and to call on the Government to honour their promises to improve the protections for identifying and securing the release of vulnerable adults at risk in immigration detention. The debate also enables us to refer to there being no time limit for immigration detention, unlike in nearly all other European Union countries. That adds to the lack of protection, to the suffering and to the likelihood that the serious mental health harm being inflicted will increase suicide attempts.

The debate is particularly pertinent because the new Home Secretary has pledged to review the Home Office’s hostile environment policy—admittedly because of the Windrush scandal. The 70th anniversary of the arrivals on the Windrush is currently being debated in the main Chamber. I am sure that, as they arrived, they did not expect what has happened recently. The example of what has happened to the Windrush generation should be a warning to the Government that we do not raise these issues to make party political gains; we raise them because there is a humanitarian need and a human rights cause that the Government should not need reminding that they need to address, given what has happened with the Windrush scandal.

The treatment of vulnerable people in our country’s immigration detention system should be an important part of the Home Secretary’s review. It is the considered judgment of esteemed organisations, such as Freedom from Torture, Medical Justice, the Helen Bamber Foundation and Bail for Immigration Detainees, that the current safeguards and the Government’s proposed changes to the law have failed to provide, and will fail to deliver, adequate protection to vulnerable people. That view is held across the board.

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[Kate Green]

I am sorry to intervene on my right hon. Friend again. Does she agree that one deficiency of the current arrangements for identifying vulnerable individuals is that, at that very first stage, Home Office staff rely on Home Office information and do not obtain other objective evidence, which might support their making a better decision?

[Joan Ryan]

Absolutely. All the evidence tells us that there are major problems with the screening, and all the expert organisations that have commented on this situation, including the Red Cross, tell us that the Government’s changes will not provide the protection that should be provided.

Long-standing Home Office policy has required that vulnerable people, including those with independent evidence of torture, should not be detained unless in exceptional circumstances, but in practice many are. We know from extensive medical evidence that immigration detention can seriously harm the mental health of detainees, particularly those who have previously suffered from ill treatment, and the conditions of immigration detention can be appalling. In a series of findings between 2012 and 2015, the High Court said that the Government’s immigration detention system amounted to “inhuman and degrading treatment”.

In 2015, undercover reports by Channel 4 News inside Yarl’s Wood and Harmondsworth immigration removal centres revealed abuse of detainees and references to medical mistreatment. When the then Home Secretary, now the Prime Minister, commissioned the former prison and probation ombudsman Stephen Shaw to conduct a review into the welfare of vulnerable persons in detention, his damning report, published in January 2016, found that safeguards for vulnerable people were inadequate and that detention was used too often and for too long.

The Government responded by drafting and implementing their adults at risk policy, which incorporates the detention centre rules and the guidance on detention of vulnerable persons. However, that flagship policy, which is intended to safeguard vulnerable adults by routing them away from or out of detention, is not working—far from increasing protection for vulnerable detainees, it has increased the risk of harm.

In its initial 10 weeks of implementation, the adults at risk policy was applied incorrectly in almost 60% of 340 cases. From January to September 2017, Freedom From Torture’s medico-legal report service received 101 referrals for suspected torture survivors in immigration detention, and 14 of its treatment clients were detained between January 2016 and November 2017. Torture survivors continue to be detained.

The guidance on the detention of vulnerable persons raised the threshold for a decision not to detain by increasing the evidentiary burden on the vulnerable individual. As a result, the release rate following a rule 35 report—designed to screen torture victims out of detention—has fallen dramatically. In quarter 3 of 2016, before the policy was introduced, 39% of those with a rule 35 report were released. In quarter 1 of 2018, that number had fallen to 12.5%.

I urge the Minister to publish more detailed information and data on the functioning of the adults at risk evidence levels and the rule 35 process. Since the adults at risk policy was introduced, how many people have been categorised as an adult at risk under levels 1, 2 and 3, and how many within each of those categories resulted from a rule 35 report? I hope all the scribbling going on among officials and by the Minister herself means that we will get some answers to these questions today.

For each of the adults at risk categories, how many people were subsequently diverted from detention—in other words, not routed into detention? How many were released from detention as a result of a rule 35 report and under which categories? I hope we get some answers today, but I certainly intend to correspond further with the Minister and will consider parliamentary questions as a means to get more data on those matters.

Although it might be the case that the overall number of people in detention is decreasing, there were still more than 27,000 people placed in immigration detention last year. When I reveal that figure to people, they are shocked. I do not think the general public realise how many people are held in immigration detention and they are horrified when they hear that number.

In 2017 alone, 11 people died in custody. Detainees are dying at a faster rate in immigration detention than we have seen before. According to Freedom from Torture,

“statistics for 2017 show that 446 people self-harmed to an extent that they required medical attention. This constitutes a 30% increase over the last two years, which is even worse when we remember there has been a reduction in how many people are detained. Her Majesty’s Inspectorate of Prisons has noted that there has been a significant increase in deaths in detention, particularly self-inflicted deaths: in 2017 there were at least five self-inflicted deaths in immigration removal centres compared with only three in the previous five years.”

There were 2,272 people on formal self-harm watch last year. That constitutes approximately 8% of the detained population, or almost one in 10.

Last September, the BBC’s “Panorama” programme investigated conditions in Brook House immigration removal centre and exposed a culture of abuse and widespread instances of self-harm and attempted suicides by detainees. In its most recent inspection report on Yarl’s Wood, published in November 2017, Her Majesty’s Inspectorate of Prisons found that vulnerable women were still being detained, despite

“professional evidence of torture, rape and trafficking, and in greater numbers than we have seen at previous inspections.”

It concluded:

“The effectiveness of the adults at risk policy...was questionable”.

I would go further: this catalogue of failings shows that the Government’s policy is not fit for purpose.

Let us remember that, despite all the evidence, the Government are not changing their policy. We did not see that in the delegated legislation a few days ago. They are not making changes because they have listened or seen the evidence for themselves; they are doing so because they were pulled into the High Court and told that they must make changes.

The analysis that the policy is not fit for purpose was borne out by the ruling of the High Court last year in a case brought against the Home Office by Medical Justice and seven detainees. It found that the Government’s policy unlawfully imprisoned hundreds of victims of torture. That was due to the Home Office’s deeply regrettable decision to narrow the definition of torture so that it refers only to violence carried out by state actors, and excludes vulnerable survivors of non-state abuse. We discussed that in the Delegated Legislation Committee, and I made the point then that the definition excludes anybody tortured—I am sure we can all come up with our own groups—by Hezbollah, ISIS, Daesh, Hamas or whoever. It excludes all those people and encourages states to outsource torture to their proxy groups. I cannot believe the Government are not aware of that.

We need a change. During the Delegated Legislation Committee last week, it was galling to hear the Minister say:

“The adults at risk policy represents a proportionate and rational way of carefully balancing the vulnerability considerations against immigration considerations.”—[Official Report, Third Delegated Legislation Committee, 6 June 2018; c. 12.]

Will the Minister clarify how the policy is proportionate and rational when, according to Medical Justice, it has

“fundamentally weakened protections for vulnerable detainees, leading to more rather than fewer being detained, for longer”?

How is it proportionate and rational to propose amending the detention centre rules and guidance as set out in the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018 and the Detention Centre (Amendment) Rules 2018, when Medical Justice, which brought the successful litigation against the Home Office, said that the changes will not deliver inclusive, protective and effective detention safeguards for vulnerable people? Medical Justice brought the litigation and the High Court agrees with it. The Government now propose changes, but again Medical Justice says that they will not deliver the required outcome. It beggars belief that the Minister and the Government are not listening.

I did not get a satisfactory response to the question from the Minister in the Committee last week. However, I received a letter from her yesterday—finally responding to a letter that I wrote to her at the end of March, expressing my concerns about immigration detention matters. Given that I wrote my letter two and half months ago, it would have been useful to have the Minister’s response prior to the Delegated Legislation Committee last week. The time lag is unacceptable. In her response, the Minister claimed again that

“the policy we have in place, which will be enhanced by the amendments we lay before Parliament, is rational, sensible and balanced, and provides vulnerable people with proportionate levels of protection.”

What does “proportionate levels of protection” mean? Proportionate to what? That feels like a huge step back from the Government’s commitments in the adults at risk policy. Certainly, it is not what Stephen Shaw had in mind. Drawing on medical evidence, Shaw said in his report’s conclusions that

“detention in and of itself undermines welfare and contributes to vulnerability. I need hardly say that a policy resulting in such outcomes will only be ethical if everything is done to mitigate the impact”.

We should be seeking maximum levels of protection for vulnerable people—not proportionate levels. Can the Minister please clarify today what she means by “proportionate levels” of protection?

The Minister also said in her letter that her

“officials have engaged with a range of NGOs and inspectorates in producing and developing the Statutory Instruments.”

I do not know what criteria the Minister uses to judge adequate levels of engagement with outside organisations, but I know that the NGOs are not happy with the way the Minister and the Home Office have conducted the so-called consultation. Freedom from Torture, Medical Justice and others have said that the Home Office failed to consult appropriately or to consider relevant evidence. How can it be, to use the Minister’s words, “proportionate and rational” of the Government to ignore the advice of expert organisations when drafting the statutory instruments, and proportionate and rational of the Minister to run the risk that the Government will face further court action, by ploughing on regardless of criticism?

When the High Court ruled against the Government last year, it placed no obligation on the Home Secretary to define torture in the new policy. Medical Justice and Freedom from Torture cautioned that the new torture definition set out in the Detention Centre (Amendment) Rules 2018 was unnecessary, inappropriate and too complex for caseworkers and doctors to apply to specific cases. That is the very point raised by my hon. Friends. Last week, the Minister said that she did not accept that assessment. I ask her to check again. Organisations commenting on the Home Office training to accompany the new adults at risk guidance said that

“it is quite obvious that the caseworkers did not understand the torture definition”.

They stated:

“The training focuses very closely on distinguishing between victims of assault and victims of torture, rather than on identifying vulnerability. The training kept creeping back to notions of detention and physical restraint in the language used to explain the definition, and it was clear there was no common understanding of what severity or powerlessness means in the examples used.”

I hope that we do not hear those points referred to in court at some time in the next 12 months, but I fear that we may.

Freedom from Torture and Medical Justice said that

“even when applied correctly, the definition of torture will exclude a group of victims of severe ill-treatment who do not fall within the other indicators of risk”.

I ask the Minister to look at the matter again. I urge her to replace the current categories of torture and sexual or gender-based violence with a more inclusive category, modelled on the detention guidelines from the UN High Commissioner for Refugees, namely victims of torture or serious physical, psychological, sexual or gender-based violence or ill-treatment.

NGOs have stipulated that the new catch-all provision in the revised guidance on the detention of vulnerable persons

“does not adequately mitigate the risk of excluding from the protection of the safeguard those known to be at risk of harm in detention.”

Their concerns have been ignored by the Government. NGOs, as well as a cross-party group of parliamentarians, also called on the Government to wait for the publication of Stephen Shaw’s re-review of the welfare of vulnerable people in immigration detention before laying the statutory instruments before Parliament in 2018. That was mentioned in Committee last week and I am afraid that the response was far from satisfactory. I am not even sure that I count it as a response at all. It held no water.

The request to wait for the re-review is perfectly sensible. The High Court did not demand that the Home Office should respond to the court order before Shaw published, so that is not an adequate answer. We are now in the bizarre situation where Parliament must consider the revised definition of torture and the amended guidance separately from the findings of the Shaw re-review. It would have been much better to give the Home Office, parliamentarians and expert organisations the benefit of considering the changes in the light of the full insights from Shaw. Given that the statutory instruments are not due to come into force until 2 July, I urge the Government to withdraw them so that a proper consultation can be carried out on the basis of Shaw’s recommendations. Last week, the Minister said in Committee that Stephen Shaw’s new report had been given to the Home Office at the end of April—a matter of a few weeks after the statutory instruments were tabled—and that it will be published with the Government’s response later in June. I ask the Minister to reaffirm when it will be published. Can she guarantee that it will be this month?

The Home Secretary said in a recent written statement to the House on the Windrush scandal that it was

“fundamentally important that the lessons from this episode are learned for the future, so that this never happens again.”—[Official Report, 24 May 2018; Vol. 641, c. 53WS.]

However, it is very difficult to have any confidence in Home Office Ministers when they are demonstrably unwilling to learn the important lessons on how to increase protection for victims of torture and other vulnerable people in immigration detention. Freedom from Torture, Medical Justice, the Helen Bamber Foundation and Bail for Immigration Detainees could not be clearer:

“Under current arrangements the Adults at Risk policy does not work to ensure that fewer vulnerable people are detained for shorter periods of time. It is already failing and the proposed changes will exacerbate the problem.”

It is their considered and expert judgment that a terrible situation is going to be made even worse.

The Government should be ashamed, yet at no stage have I heard the Minister offer any kind of apology to the victims of torture and other vulnerable people who have suffered under the policy. It is a prime example of the hostile environment that flourished when the Prime Minister was Home Secretary. The adults at risk policy was drafted on her watch. I know that the Minister has been in her post only six months, so I urge her to apologise on the Prime Minister’s and the Government’s behalf for the torment that so many individuals have faced.

However, an apology alone will not be sufficient. We need a fundamental review of immigration detention policy. We need a policy devised with consideration, care and compassion for victims of torture and other vulnerable people. We need a more humane approach, which should also include an end to indefinite immigration detention. I urge the Minister to reflect and act on the concerns that I have expressed and to commit to engaging far more constructively with parliamentarians and NGOs on these important issues. I look forward to her response.

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[Kate Green (Stretford and Urmston) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Sharma. I do not have a great deal to add to the eloquent speeches of my right hon. Friend the Member for Enfield North (Joan Ryan) and my hon. Friend the Member for Birmingham, Yardley (Jess Phillips). Like them, I have been absolutely devastated by some of the stories I have heard of what has been happening to vulnerable people, who have committed no crime and who are locked up by the state when they have already suffered unimaginable trauma.

I became aware of just what that means for individuals at the St Bride’s Destitution Project, which is run with the British Red Cross at St Bride’s church in my constituency. It is a drop-in for refugees and asylum seekers, many of them destitute, to find company or to get some advice, food or clothing.

While I was there on a visit, a lady came in who had just been released from Yarl’s Wood and sent all the way back to Manchester that afternoon. That was not the first time that this had happened to her, because one of the features of our detention system is that people are in and out, in and out. We have a cat and mouse situation of taking people into detention, deciding they are vulnerable or do not pose a risk, releasing them and then—later in the protracted process of handling their claim for status—bringing them back into detention again.

When that lady came in, she collapsed in front of me. She literally collapsed. Her legs gave way beneath her, not for a physical reason, but for the sheer relief of being out of detention. I have never seen anything like it. I was moved and horrified. The distress that lady felt and her relief at being out of that situation will stay with me all my life. What threat she posed to our community and society I cannot imagine. The threats were being directed by us, as a state, at her.

I endorse everything that has been said about the deplorable, inhumane way that we are treating people in detention, particularly about the failure of the process to screen out at the first stage people who should not be going to detention at all. I would also like to draw the attention of right hon. and hon. Members to the complete failure of the assessment process when people try to avail themselves of rule 35 inside our detention centres.

Women for Refugee Women produced a compelling report on the experiences of a group of women that it was able to talk to in Yarl’s Wood, some of whom had sought rule 35 reports. Sometimes those women had had to wait a considerable period even to have the assessment and the report prepared—women who present as highly vulnerable and are then told to wait days, if not weeks, until someone takes the time and has the capacity properly to assess that vulnerability. That would not happen in any other part of our public services. It should not happen to those vulnerable people.

Even when those women obtained a rule 35 report and it confirmed that they were survivors of gender-based or sexual violence, many of them were still kept in detention. I cannot understand how they were not released when it had been identified that those women had experienced something that any woman in this room will know would be torturous. We could not live with that. We would be vulnerable as a result.

We have to recognise that many of those who spend time in detention will be released and returned to the community. Some 56% of those in detention return to the community after a time.

[Joan Ryan]

That is a really interesting statistic—56%—and I thank my hon. Friend for making such a powerful contribution to the debate. Let us remind ourselves: Home Office policy is that people should be detained only in exceptional circumstance. How can that be being applied if 56% are then released?

[Kate Green]

My right hon. Friend is absolutely right, and when she was talking about detention not being proportionate, I thought, “How can it be proportionate, when more than half the people who are detained are clearly not a risk that means we have to lock them up? If they were, they would not be returned to the community.” It makes no sense.

We need some clear answers from the Minister on the failure of the assessment process—or lack of process—before people are detained, and we need much greater insight into what the Government are doing to address the fact that in detention, the way of screening, assessing and dealing with vulnerable adults is still not working well, despite the adults at risk policy and the availability of rule 35.

Just today, I was sent a copy of the Independent Monitoring Board’s report on what happens when people are deported from detention centres. There, too, we have a catalogue of poor-quality treatment of people who are leaving the country and are therefore likely to be traumatised, angry and frightened. Although it is legitimate to remove them, we should do that in a way that is dignified and humane. The report makes it clear that we do not consistently do that. How can we hold our heads up in a civilised country if we have to shackle people unnecessarily, deny them access to private toilet facilities and leave them to get off a plane in their home country without any knowledge of what support they will have or what situation they are walking back into, and without any advice available?

At every stage of the process, our system shames us, especially in relation to the most vulnerable people who have suffered persecution, torture and abuse. I hope the Minister understands how much concern there is about the way our detention system works—not just among those of us who could be in the Chamber this afternoon, but across the House. Like my hon. Friends, I very much look forward to her response to that concern.

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[Joan Ryan]

What the Minister has just said beggars belief in the light of the statistic mentioned by my hon. Friend the Member for Streatham—

[Kate Green]

Stretford and Urmston.

[Joan Ryan]

Stretford and Urmston. Streatham is not very far away, is it? You would think, with my accent, I would have been able to get that right—I do apologise.

My hon. Friend talked about 56% of people being released back into the community. There clearly is a problem. It is not as the Minister says. I do not understand what confidence we can have if she cannot take account of that. Will she also confirm that the Shaw re-review will be published later this month?

[Caroline Nokes]

That is an important point about proportionality and the numbers who are released from immigration detention. We use detention to ensure that people who have no right to be here are returned to their home country. However, it is important that when additional information emerges and people demonstrate vulnerability, there is constant review. They can ask at any moment for consideration of immigration bail. That will be automatic after four months and every month thereafter. I accept that we do not make correct decisions all the time. I welcome the fact that when evidence emerges of vulnerability or of another reason it is inappropriate for somebody to be in detention, we are happy for them to be released into the community and for their case to be managed in a better way than detention.