Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018

Baroness Lister of Burtersett Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I will not beat about the bush. The purpose of my regret Motion is to ask the Minister whether the Government will consider the immediate withdrawal of these two statutory instruments before they can do harm to certain vulnerable individuals, and until a number of preconditions, of which the Home Office has been made aware and which I will outline, have been completed. Statutory Instrument 410 introduces the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016, enacting the draft updated guidance contained in the Immigration Act 2016. Statutory Instrument 411 introduces a new definition of torture into detention centre rules. Together, they provide the statutory footing for the adults at risk framework, introduced in September 2016 to improve safeguards for people who are particularly vulnerable to harm in detention. As neither instrument is due to come into force until 2 July, there is still time to withdraw them and initiate the alternative action that I will put forward. If this appears a little tight on timing, I should explain that I tabled my Motion some weeks ago, but its date was confirmed by the Whips’ Office only last week. The remainder of my contribution will be an explanation of why I am making this request.

In a recent debate on the vulnerable persons resettlement scheme, tabled by the noble Lord, Lord Scriven, I mentioned that the Independent Asylum Commission, which reported in 2009 and of which I was a commissioner, characterised the attitude of the Home Office to any asylum seeker, or indeed any outside advice or information, as a “culture of disbelief”. This was triggered by our hearing of a Sri Lankan victim of torture whose case was not believed by the Home Office, which resulted in him being sent back to Sri Lanka, where he was tortured again. Luckily, when he returned here for the second time, his case was believed.

In 2015, in response to growing concerns about the use of immigration detention, the Home Office commissioned Stephen Shaw to carry out a review of the welfare of vulnerable people in immigration detention. In his report he highlighted the lack of safeguards for vulnerable detainees and recommended a drastic reduction in the use of immigration detention. The Immigration Minister’s broad acceptance of Shaw’s recommendations was given statutory footing in Section 59 of the Immigration Act 2016, the purpose of which is to ensure that all individuals, particularly those who are vulnerable to harm if detained, are identified and protected. In the event, neither statutory instrument, nor the adults at risk guidance, delivers that purpose.

The proposed definition of torture is far too complex to be easily applied by Home Office caseworkers and doctors in the identification of vulnerable persons, and its concepts are clinically nebulous. For example, it invites doctors to make subjective judgments as to whether a victim did enough to resist ill-treatment or whether he or she was sufficiently robust to cope with it. Extracting the necessary information will require intrusive investigation of a vulnerable person that far exceeds the safeguards and the standard of proof that applies. In particular, the concept of powerlessness is ill suited to the determination of vulnerability to harm in detention, as both doctors and caseworkers will struggle to form a consistent and fair interpretation of such complexity.

The definition in SI 2018/411 seeks to distinguish between torture and ill treatment. That is an important distinction in international law, but entirely unnecessary and inappropriate when identifying those vulnerable to harm in detention. Even when applied correctly, the definition will exclude a whole cohort of victims of severe ill treatment who do not fall within the indicators of risk. These include victims of interpersonal violence on grounds of race, ethnicity, sexuality, tribal groups, blood feuds or clan origins, none of which presents an obvious situation of powerlessness in relation to the perpetrators of violence.

In fact, the adults at risk guidance has raised the threshold for a decision not to detain by increasing the evidentiary burden on vulnerable individuals. Under the previous policy, and not subject to the culture of disbelief, victims of torture needed only to show independent evidence of their history of torture in order to be considered unsuitable for detention, except in very exceptional circumstances. The new guidance, however, includes an additional requirement to present specific evidence that detention is likely to cause harm in order for release to be seriously considered. That evidence is extremely hard to come by before harm has actually occurred. By introducing a much wider range of immigration factors that have to be considered before a decision not to detain can be justified, the guidance has also weakened the protection offered to vulnerable people.

A number of NGOs working with immigrants immediately raised serious concerns about the adults at risk guidance, including the changes to the definition of torture, which previously had been based on case law and was not defined in government policy. This had been proved to be wide enough to include victims of torture, who, evidence showed, were particularly vulnerable to harm in detention. The charity Medical Justice and seven detainees challenged these changes in the High Court, the judge finding them to be unlawful and ordering their suspension. In addition, the judge instructed the Home Office to review and reissue the policy in a reasonable time, but did not place any obligation on the Home Secretary to define torture in the updated policy.

In parallel with this, Stephen Shaw carried out a second review—this time, of the Government’s progress towards fulfilling the recommendations in his first—which he delivered to the Home Secretary at the end of April this year. Despite promises that it would be published by the end of this month, it has still not appeared. Indeed, the Minister, who had clearly seen it when he responded to a recent Early Day Motion on the subject in another place, did not disclose any of its conclusions or recommendations to those taking part in the debate, which left them in the dark as to what he was saying. He also back-pedalled on the promised date of the report’s publication. Therefore, I ask the Minister to clarify the situation regarding the date of publication of Shaw’s second report and to tell the House when we can expect both it and the Government’s response.

The statutory instruments were laid before Parliament on 27 March this year, following a wholly inadequate and expedited consultation on the new definition of torture with a limited group of NGOs. They cautioned that no further definition should be considered in isolation from the necessary revisions to other elements of the safeguards, such as detention centre rules and the adults at risk guidance. They also asked the Home Office to await publication of the second Shaw review, to allow consideration of his findings before laying changes before Parliament. Their cautions were studiously ignored. I cannot help contrasting the Home Office’s unseemly rush to publish what is so clearly flawed with its unseemly procrastination over the short-term detention rules, taking over twice as long as World War II to publish in 2018 something originally promised in 2006. The noble Lord, Lord Dubs, whose letter on immigration of 28 March I co-signed, was also studiously ignored when he proposed the same action.

So what to do about this mess? As I put to the Minister at the start of my contribution, the statutory instruments should be immediately withdrawn and any changes to existing policy regarding the safeguarding of victims of torture or ill treatment postponed until after the publication of the second Shaw review, and subject to a proper consultation, subject to government guidelines. There is no need to define torture in either the adults at risk guidance or detention centre rules, so the proposed definition should be withdrawn from both. The broad range of immigration factors used to justify detention of those identified as being particularly vulnerable to harm should be replaced by a return to the previous threshold of very exceptional circumstances. There should be no need for a victim of torture or ill treatment identified as likely to be vulnerable to harm in detention to demonstrate any further why he or she is likely to suffer harm in detention. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bring forward this regret Motion on such an important subject. He has already made the case against the new definition of torture in the regulations extremely persuasively. I shall simply do two things: first, ask the Minister some questions; and, secondly, underline why this is so important.

In her letter to me of 24 April drawing the regulations to my attention, the Minister acknowledged concerns raised by some NGOs about the Government pressing ahead with these changes in advance of the publication of Stephen Shaw’s review into the implementation of his previous report into the welfare of vulnerable people in detention, already mentioned. She sought to reassure me that the changes made at this point are,

“purely for the purposes of implementing”,

the High Court judgment on the definition of torture. But that is no reassurance at all; it is the very fact that this judgment is being implemented in this way that concerns the NGOs that have years of experience of working with people who have suffered torture.

Even if the Home Office were correct in its view that it needed to act swiftly, why did it need to do so by introducing a new definition of torture in the face of well-grounded objections from these organisations? As the noble Lord, Lord Ramsbotham, said, the High Court did not require a new definition of torture in response to its decision. Why could not the Home Office revert to the status quo ante until after the publication of the Shaw review and then consider the question as part of the wider review of the treatment of vulnerable people?

The same question was asked by my honourable friend Joan Ryan MP at the end of the debate she initiated in the House of Commons on 14 June. However, the Minister, while acknowledging that the current adults at risk policy is far from perfect—which is welcome—did not really answer the question, even though she said that she would. She said she was not seeking to turn the clock back without explaining why, in answer to Joan Ryan’s question, and I would be grateful if the Minister could do so now.

In doing so, could she also explain why the Home Office has seen fit to disregard the views of organisations such as Freedom from Torture and the Helen Bamber Foundation, which know more than anyone about the cruelty of torture and its terrible effects? It is the evidence from these and other organisations, such as the BMA, Women for Refugee Women and, most recently, the British Red Cross, that underlines why this Motion is so important.

I find it difficult even to imagine what it must be like to have been be subjected to torture. It is too easy for it remain a rather abstract concept and to lose sight of what it means to have been deliberately harmed by a fellow human being with often devastating consequences. Yesterday I attended the 10th anniversary celebration of Survivors Speak Out. One of those survivors spoke of his time in detention. He said, “We have already suffered so much”, and compared the experience of detention with the torture that he and fellow survivors had lived through.

In its report on health and human rights in immigration detention, the BMA noted:

“Pre-exposure to trauma is a key contributor to the rates of mental health problems in the detained population. One theme that emerges from the literature is that of the ‘retraumatisation’ detention can cause—in particular for those who may have experienced trauma in the form of detention or at the hands of authority figures in their home country”.


It also noted that the detention environment can be particularly retraumatising for LGBT individuals who have faced persecution and women who have suffered sexual assault and gender-based violence.

--- Later in debate ---

[Baroness Williams of Trafford]

I will get on to when it will be published. I am simply saying that officials kept the team informed of the work they were doing to implement the new definition while they were engaging with NGOs. We will carefully consider all of Stephen Shaw’s recommendations, as we did last time, and take them into account when we review detention centre rules, including the operation of the rule 35 reporting mechanism later this year. We will publish his report with a full government response before the House rises in July, in answer to noble Lords’ questions.

As I said, the current imperative is to ensure that, in the light of the court’s very clearly expressed view, we implement a lawful and effective definition of torture for the purpose of the adults at risk policy. There is no reason to delay this. It is separate to, and not dependent on, Mr Shaw’s report.

It has been suggested that the new definition of torture in the context of immigration detention is too complex to be applied by caseworkers and doctors. I do not accept this. It fully reflects the guidance handed down by the High Court. The court, in turn, had the benefit of a large amount of expert and clinical evidence, much of which was submitted by the litigants, Medical Justice. So there is no reason to believe that caseworkers and doctors will find the definition of torture set out in the statutory instruments too complex.

The noble Baroness, Lady Lister, asked whether the consultation with NGOs was sufficient. There was no legal obligation to run a consultation, but officials willingly engaged with them on the definition of torture and on caseworker guidance and training.

The noble Baroness, Lady Hamwee, asked—

[Baroness Lister of Burtersett]

I think the Minister might be getting us a bit mixed up, because the noble Baroness, Lady Hamwee, spoke more about consultation. What she wanted to know, and therefore what I will ask now, is: what was the response? That was not made clear in the Explanatory Memorandum. The response to us was that the organisations are very unhappy about this, which is why this Motion has been brought this evening.

[Baroness Hamwee]

Perhaps I may come back on that. I quoted the paragraph on the consultation outcome because the implication of the Home Office saying it has considered comments from the NGOs is that there is no difference between them, or at least nothing substantial, and that we should not be worried about whether the NGOs made critical comments—which we have discovered they did.