Torture and the Treatment of Asylum Claims

Gareth Thomas Excerpts

Thursday 2nd March 2017 Westminster Hall

[Dr Mathias]

I thank the right hon. Gentleman very much for that intervention. I am aware of Supreme Court cases, but I do not want to mention specific cases today because I want to find as much common ground as possible with the Government, and I do not want to presume judgment of any particular cases, but I absolutely agree that the present statements by the Prime Minister and the Leader of the House do not match our historical cases. That is why it is important today to be absolutely sure of where our standard is. I absolutely agree that in the past we have not lived up to our standards.

In view of the current global situation, I still believe we are the leaders, whether we choose to be or not. We absolutely need transparency about the past. Like the right hon. Gentleman, I am looking closely at the court cases. However, we must recognise that today we are not only the place to be against torture, but the place that can diagnose torture. People can get the best treatment for torture and can be rehabilitated to return to the community as fully participant members of society. That is the ultimate aim, and I do believe we lead on that.

[Mr Gareth Thomas (Harrow West) (Lab/Co-op)]

Is there not a further test for us as a country? Not only should we have the higher standard in terms of rejecting torture and having the best treatment, as the hon. Lady said, but when an asylum seeker comes to this country and alleges torture, it is our duty to take that case particularly seriously. Is the hon. Lady aware of concerns that people from Sri Lanka who have applied for asylum, alleging torture, have perhaps not had their cases inspected as rigorously as they might?

[Dr Mathias]

Again, I will not comment on individual cases. In my constituency of Twickenham in south-west London, I have come across the Tamil community. I have worked abroad in many countries, so I am aware of countries that have particular cases. I want the people of Sri Lanka who seek asylum to get the gold standard level of investigation and, if they seek asylum here, the best rehabilitation. I hope that answers the hon. Gentleman.

Historically, we have been at the forefront. After the second world war, we were a signatory to the universal declaration of human rights, which includes article 5 against torture. We signed up to the European convention on human rights, which led to our Human Rights Act 1998. We are also a signatory to the UN convention against torture and other cruel, inhuman or degrading treatment, which the UK ratified in 1988. I thank the Library for pointing out that in our common law we also have what is pertinent from section 134 of the Criminal Justice Act 1988. On torture offences, we state:

“It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or omission.”

We have signed the European and UN declarations, but our case law also sets a high standard. I said that historically we have done well. The late Lord Bingham mentioned that 300 years ago the English Bill of Rights stated that punishment that is cruel and unusual should not be inflicted. So our history goes back more than 300 years and has been at the forefront.

However, as the right hon. Member for Orkney and Shetland has said, our past has not always been adequate and may not be the standard we should attain now. Although the Prime Minister has said we do not sanction torture and do not get involved in it, I want the Minister to be clear today that we do not sanction complicity and are not involved in it. I want the Minister to say, “We do not sanction rendition and do not get involved in it”—I use the present tense because I do not want to influence the ongoing court cases.

Whether we like it or not, we lead globally against torture. That is important, because about a month ago I met a diplomat from another country and I talked about a torture case that is known to Amnesty International. When I mentioned the torture of sleep deprivation, I was corrected and told, “This is not torture. This is mistreatment.” Then I realised that although our law sets us against such treatment, whether physical or mental, or act or omission, we need to make it clear to other countries that we are absolutely and wholly against using such things as prolonged sleep deprivation, degrading treatment—the case I have referred to involved a fellow doctor in prison being made to eat his own faeces, while another prisoner was stripped naked and asked to crawl on all fours—and mental torture, such as when someone’s relative is executed or subjected to a mock execution in front of them. We must recognise such things as torture and not say that there are sub-levels of torture, or cruel, inhuman or degrading treatment. We oppose it utterly and will lead in that field. I want the Minister to be clear about that.

Historically, we have done well at recognising and treating severe cases of mental and physical trauma. More than 100 years ago, we became specialists at treating soldiers who were victims of shellshock or who had been buried alive. Our medical specialists became adept at treatment and rehabilitation, and enabling people to be full members of the community. We led in that field. The late Helen Bamber was also a leader, with regard to knowledge of and respect for people who suffered torture, and their treatment and rehabilitation. There was a centre in Denmark, and Helen Bamber made our country one of the leaders in the field. Today we have specialist organisations, such as Freedom from Torture, which specialise in recognising the signs of torture, rehabilitating people who have experienced it and enabling them to be full members of the community. We have many success stories on which to build.

I therefore regret that although the Government have made clear statements against torture, which show the lead we are giving, they can and need to do better with respect to handling asylum cases involving evidence of torture. The Minister and the Secretary of State will be aware of the report “Proving Torture”, released in November, which contained a small number of clear instances where the decision to reject an asylum application, accompanied by a medico-legal report, was overturned by a higher tribunal because, worryingly, of the mishandling of specialist medical evidence. I understand that the Home Office may have done its own sample study. I am sure I have the Minister’s attention, as such instances are a waste of taxpayers’ money; however, the worrying thing is the additional distress caused to people seeking asylum who have been tortured, whether physically or mentally.

Whether the Minister refers to the clear cases presented by Freedom from Torture, or the cases that I believe have been looked into by the Home Office, he will recognise that there is a problem in the system, and that every caseworker needs some training on cases where torture may be involved. It is perhaps somewhat akin to the situation of general practitioners: they are not specialists, but they need knowledge of every specialty to be able to give adequate treatment and make a referral.

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[Dr Mathias]

I appreciate what the Minister says, but I have seen a handful of cases—confidentially, without the names—and, without being a specialist myself, have talked to one of the doctors involved with the charity. From the small number I have seen, the decisions have been overturned not because of extra evidence, but because the evidence presented to the first caseworker was not handled adequately. On appeal, the information given was found to give sufficient grounds for granting asylum. It is not my field, but I have some relevant background and have had some experience in different countries of the simple treatment of people returning to a community having been tortured, so I have a great deal of respect for the specialty. I cannot believe that without training a non-medical caseworker would be able to understand the medico-legal report with respect to the need for asylum. In the 21st century, a specialist is needed to diagnose the invisible mental scars.

I gave an example earlier of the torture of one prisoner of conscience. For me, even saying the words “mock execution of a family member” upsets me. However, if the Home Office is talking about using specialist caseworkers, it must watch out that the specialists do not become hardened by having to hear and read such material day in, day out. Again, there is a similarity to what happens in therapeutic counselling, in which I do have a background. There are models in other fields and professions. It is mandatory for therapeutic counsellors to have regular supervision to check their bias and their own mental health. I do not believe that the Home Office is giving sufficient weight to the needs of the Home Office caseworkers. The great thing is that we have the expertise. Freedom from Torture, a UK-based organisation, is one of the global leaders in the field. The training programme has already been agreed by the Home Office, but just not rolled out for all caseworkers.

[Mr Gareth Thomas]

I support what the hon. Lady is saying, and it will be interesting to hear the Minister’s response. According to the Freedom from Torture report for this debate, in many of the torture-related asylum cases it examined, where a refusal was overturned on appeal, the immigration judge specifically referred to the strength and high quality of the medical evidence. That suggests that the hon. Lady is right and that if the Home Office asylum caseworker had handled the case better, there would have been no need to go to appeal.

[Dr Mathias]

I thank the hon. Gentleman and hope that Freedom from Torture and all the staff involved have heard his words. Again, I believe that we are leading. The specialty is a difficult one, so we should be proud that excellence has been attained in it. Asylum seekers should have confidence in our system. However, to refer back to the cases that I saw, without the names, it is depressing when a caseworker questions expertise on that level, with respect to understanding how distressed someone might be as a result of a particular mental torture. I would not question a specialist in that way if I were not in the field. The hon. Gentleman’s point was well made.

Better training is needed for all caseworkers. I am sure that the Minister is aware that many asylum cases do not initially present with evidence of torture, especially if the scars are invisible. It would be advantageous for the Home Office if training were rolled out for everyone. If it wants a specialist unit, it must be very careful about how to protect the members of staff from fatigue and maintain excellence. It takes time to do those small samples, and where the Home Office and Freedom from Torture did some, I believe that the quality assurance and the audit for these cases is lacking.

I fear that in the 21st century the number of cases is not going to decrease, so the Home Office needs to up its game. We have a 300-year history of being leaders on this issue. Right now there is a vacuum in the world for setting the standard. We have to fill that vacuum, because we are able to, and we have shown that historically. We should be transparent when we let ourselves down—it is not just letting down the people who have suffered; it is letting down the United Kingdom. I want the Government and the Minister to reaffirm our position as heading the world in standing against torture and all cruel, inhuman and degrading punishments.

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[Mr Gareth Thomas (Harrow West) (Lab/Co-op)]

I pay tribute to the hon. Members for Twickenham (Dr Mathias) and for East Kilbride, Strathaven and Lesmahagow (Dr Cameron), my hon. Friend the Member for Stretford and Urmston (Kate Green) and the right hon. Member for Orkney and Shetland (Mr Carmichael) for securing this debate on a hugely important topic. I commend the way in which the hon. Member for Twickenham introduced it.

I have the privilege of representing a significant number of residents who were born in Sri Lanka. Over the years, a number of them, particularly those from the Tamil community, have contacted my office or visited my advice surgery for help with their claims for asylum. A number of them have alleged that they have been victims of torture in Sri Lanka. Freedom from Torture has informed me that Sri Lanka remains its top country both for those receiving therapy and for medico-legal reports on torture in custody. That reflects a trend that it has seen over several years. How we treat the asylum cases of people from Sri Lanka who make allegations of torture is surely one of the key tests for how the Minister and the Home Office more generally handle asylum cases involving torture.

In its 2016 annual report, Amnesty International stated:

“Torture and other ill-treatment of detainees—including sexual violence—continued to be reported and impunity persisted for earlier cases.”

That is in relation to Sri Lanka.

“Suspicious deaths in police custody continued to be reported. Detainees died of injuries consistent with torture and other ill-treatment, including beatings or asphyxiation. Police claimed suspects committed suicide or in one case drowned while trying to escape.”

That is a 2016 Amnesty International report describing the situation in Sri Lanka.

In 2012, Human Rights Watch published a report about allegations of torture and other ill-treatment in Sri Lanka. It documented a number of cases of refused asylum seekers who were returned from this country to Sri Lanka to face ill-treatment and persecution. Indeed, the family member of a constituent of mine was returned to Sri Lanka, where he was subjected to torture.

The context underlines the point that it is vital that any claim for asylum must be assessed fairly and thoroughly, given that the stakes are so high. I pay tribute to those who work for the Home Office on asylum cases—it is far from a glamorous job, but it is hugely important to this country—and maintain the integrity of our borders and this country’s reputation as a place that takes allegations of torture seriously. We want to continue to be a place where those who have been tortured and have applied for asylum are taken particularly seriously. Thankfully, there has been some political progress and improvement in human rights in Sri Lanka since that 2012 report, but it is not yet enough.

I want to ask the Minister a number of questions about the way asylum claims are processed. The Freedom from Torture report that I referred to when I intervened on the hon. Member for Twickenham certainly fits with the experiences of some of my constituents. At the crux of any claim for asylum is an assessment of the claimant’s credibility. To be granted refugee status, asylum claimants need to show that there is a “reasonable degree of likelihood” that they will face persecution if they return to their country of origin. That is significantly lower than the standard of proof in criminal cases. Evidence of past persecution, and particularly of torture, is likely to be a strong indicator of the risk of future persecution, but asylum seekers are unlikely to be able to gather documentary evidence methodically as they flee, so medico-legal reports are among the most persuasive evidence available for the assessment of their claims. However, I have seen cases in which the evidence of a medical expert has been dismissed or questioned by a caseworker who has little or no clinical expertise. I have also seen cases in which one part of the claimant’s story is not believed, and is used to argue that their whole claim should be dismissed as incredible. The injuries documented by a medical expert are explained away as having occurred some other way.

Freedom from Torture described five ways in which medical experts work, which are not always considered properly by asylum caseworkers. It is concerning that caseworkers currently receive only a very short, one-hour slot in their induction training on handling medical evidence of torture. That clearly is not enough, given the problems in decision making that Freedom from Torture identified and that others in the House are aware of. Will the Minister respond to the first recommendation in the Freedom from Torture report and explain why the full-day training module that has been developed has not yet been rolled out for asylum caseworkers? Will he confirm that it will be rolled out as soon as possible?

Getting the decision right first time is clearly better for the claimant and is surely better for the taxpayer, too, as it spares the expense of a costly appeal. Crucially, it allows the claimant to get on with their life. Will the Minister give his view on whether the changes to legal aid in the previous Parliament have affected asylum seekers’ access to the legal advice that they might need to obtain a proper medico-legal report?

About 10 years ago, a pilot scheme was set up to try to improve the quality of asylum decision making. It involved closer collaboration between asylum caseworkers and legal representatives at an early stage in the process to ensure that a decision is make after all the facts of the case have been considered. I understand that it was followed up by the early legal advice project under the coalition Government. Will the Minister give his view on why those measures were not pursued further and whether that type of approach may be beneficial when considering asylum claims involving an allegation of torture?

Next week is International Women’s Day and so I want to ask the Minister for his views on how claims involving allegations of rape and sexual violence are considered. Does more need to be done to protect some of the most vulnerable asylum claimants, in particular in light of a number of disturbing revelations from Yarl’s Wood detention centre in recent years?

Furthermore, it is well known that anxiety disorders or post-traumatic stress disorder are triggered by distressing or frightening events of the sort that the hon. Member for Twickenham outlined, and that they can cause problems with concentration and memory, which may well affect sufferers’ ability to present their case properly in an asylum interview, in particular as they are asked to relive and relay those traumatic experiences. Is that proper consideration in the asylum decision-making process? Does more need to be done to give adequate training to decision makers?

Finally, on human rights abuses and torture in Sri Lanka specifically, I ask the Minister to take this away to colleagues at the Foreign Office. At the height of the conflict in Sri Lanka, Britain led the way in Europe on the removal of Sri Lanka from the GSP plus trading arrangements under the generalised system of preferences. GSP plus is granted only to countries in the developing world that have made significant progress on human rights. The European Commission’s removal of GSP plus from Sri Lanka signalled Europe’s concern, very much including Britain’s, about reported human rights abuses and, notably, the use of torture.

Last year Sri Lanka applied to access the GSP plus scheme again. Earlier this year the European Commission found that in its view Sri Lanka now met the criteria. As I said earlier, there has been some progress in addressing human rights concerns in Sri Lanka, in particular following the election of President Sirisena, but significant concern remains that human rights abuses including torture are ongoing in parts of the country and that, in particular, there will be no independent international involvement in the judicial process to examine allegations of such abuses and torture that have already taken place, especially at the end of the 2009 conflict.

Amnesty International, Human Rights Watch and indeed the Foreign Office’s most recent human rights report all state that concerns about human rights abuses in Sri Lanka remain. I will be grateful if the Minister gives his view of what support for Sri Lanka’s re-entry to the GSP plus scheme says about Britain’s commitment to tackle torture throughout the world, in particular at a time when others, notably our friends across the Atlantic, seem to be stepping back from their leadership on the issue.

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[The Minister for Immigration (Mr Robert Goodwill)]

I thank my hon. Friend the Member for Twickenham (Dr Mathias) for raising these important matters. It is a subject that she rightly says is a global issue, and one which, aside from the academic and clinical debates, has profound human consequences for individual survivors of torture. I am proud to share this Chamber with all colleagues who have spoken today, although I take exception to the use of the word “toxic” by the Scottish National party spokesperson when describing the Government’s policy; I certainly do not recognise that.

I will restate the Government’s position: torture is one of the most abhorrent violations of human rights and human dignity, and we unreservedly condemn its use as a matter of fundamental principle. The Prime Minister and the Leader of the House have made that point quite recently. The United Kingdom Government will continue to raise concerns about such flagrant abuses of human rights with relevant foreign Governments at every opportunity. I commend the work of organisations that support survivors of torture, and I believe our policy on handling asylum claims based on torture provides effective protection to those who need it.

All asylum claims lodged in the United Kingdom, including those involving claims of past torture, are carefully considered on their individual merits. Decision makers are fully aware of the importance of making the right decision and the consequences of refusing those who need protection. I assure hon. Members that such decisions are not taken without full consideration. Our published policy on considering asylum claims in which torture is raised and, in particular, when medical evidence is also provided is very clear and requires decision makers to approach such cases with sensitivity, to allow reasonable time for medical evidence relevant to the decision to be provided, and to carefully consider such evidence to reach an informed decision.

[Mr Gareth Thomas]

Is the Minister satisfied that all asylum caseworkers in the Home Office at the moment have received the full appropriate training for judging whether or not torture has occurred and therefore whether asylum should be granted?

[Mr Goodwill]

In an area such as this, one can never be satisfied, because that sounds like complacency. Indeed, staff development and training is something we constantly have under review. Some of the points made in this debate show that we do not always get it right. Tribute was paid, I think by the hon. Gentleman himself, to the staff who do this work. It is often a thankless task, and they do it with a degree of professionalism that we can all admire.

[Mr Thomas]

The Minister will be aware that I referenced a full-day training module that was rolled out to some asylum caseworkers, but not all, when the last asylum policy instruction was issued in 2014. Will he now instruct the relevant civil servant to ensure that all asylum caseworkers benefit from that full-day training module?

[Mr Goodwill]

I absolutely agree that it is important that staff get the relevant training. It is also important that staff with the most experience are directed to the cases where their experience can be most brought to bear. I will continue to engage with officials to ensure we are doing that as well as we can. I take this very seriously indeed.

When considering asylum claims made in the UK, it is absolutely right that we offer protection to those who face torture on return to their country. However, that does not mean that all survivors of past torture will automatically qualify for protection. An individual needs to show there is a real risk of serious harm or persecution on return to their country. In some cases, the situation in a country can become normalised and change. We welcome it when conflict finishes or particular situations are resolved in countries around the world.

I appreciate concerns about decision quality and how we consider medical evidence in practice, which was highlighted in the Freedom from Torture report published last year. However, I would point out that the sample of cases in that report represents less than 1% of all asylum decisions made last year, and some of the cases used are nearly three years old. That does not mean that I do not take those individual cases very seriously. I must stress that Home Office officials are committed to approaching cases involving allegations of torture with the utmost sensitivity.

My officials have also recently met Freedom from Torture representatives. While we believe the findings in the report are not representative of the wider asylum system, we are nevertheless taking steps to further improve the decision-making process. That will include forming a specialised team who will review and sign off all cases where a medical report is provided. We are also reviewing the training programme delivered to new decision makers. I can assure Members that we are committed to getting decisions right the first time and to working with expert organisations such as Freedom from Torture to ensure that survivors of torture get the support they need.

[Mr Goodwill]

I will see what stats we have on that. I am aware that where there are judicial reviews against us in such cases, we win virtually every one—I think the last figures I saw showed that we have lost 45 cases out of 18,000. It is not always the case that cases brought to us are successful.

The right hon. Member for Orkney and Shetland (Mr Carmichael) mentioned medical reports from specialists. We do not restrict who can provide a medical report for the purposes of submitting evidence in support of an asylum claim. There are accepted international legal standards, as set out in the Istanbul protocol, “Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, which applies to the documentation of torture. We believe it is appropriate that, as a minimum, those guidelines are followed in preparing reports.

All asylum decision makers receive extensive training on how to consider asylum claims. That includes vicarious trauma training for caseworkers, to guard against hardening. We are well aware of how people can become—dare I say—used to hearing stories such as these, which is really worrying. As previously highlighted, we are committed to continuous improvement.

Let me be clear: torture has no place anywhere in the world, and we must do all we can to stamp it out. The UK Government consistently raise concerns about the use of torture, enforced disappearances and alleged police abuses, and will continue to do so. I am sure Members will be aware that my hon. Friend the Under-Secretary of State for Foreign and Commonwealth Affairs, the Member for Bournemouth East (Mr Ellwood), regularly raises human rights concerns in his dealings with overseas Governments and officials.

My hon. Friend the Member for Twickenham raised the position of the Prime Minister. The Prime Minister’s position is clear: the UK stands firmly against the use of torture, cruel, inhuman or degrading treatment or punishment, and so-called enhanced interrogation techniques. In no circumstances would we consider approving a request from a foreign Government to conduct an extraordinary rendition through the UK or one of our overseas territories.

[Mr Gareth Thomas]

I appreciate the Minister giving way again. Does he accept that torture is still a significant problem in Sri Lanka?

[Mr Goodwill]

That question is probably better directed to the Foreign Office. I know that the situation is much improved in Sri Lanka, which we welcome, but the hon. Gentleman might have evidence that he wishes to make available to Foreign Office Ministers, so that they are aware of it. I am not fully briefed on the situation in Sri Lanka. I know things are improving, which is good news, but from the points he has made, we know there is still some way to go.

We must support those in need of protection to claim asylum in the first safe country they reach. That is the fastest route to safety. International obligations under the refugee convention do not require us to consider claims made outside the UK, but we continue to support refugees in-region through our substantial aid contributions and resettlement schemes.

I will say a few words about the background of our “adults at risk” policy. The adults at risk in immigration detention policy came into force on 12 September and was accompanied by detailed caseworker guidance, following the laying of statutory guidance in Parliament. The policy is based on balancing the risk of considerations against immigration factors and on detaining vulnerable individuals only when the immigration factors outweigh the immigration considerations in any given case. It is part of the Government’s response to Stephen Shaw’s review of the welfare of vulnerable people in detention.

Measures put in place under the Immigration Act 2016, along with a new policy on adults at risk in detention and other improvements to casework processes, represent a comprehensive package of safeguards for all vulnerable detainees in the immigration system, including pregnant women. Those measures have been developed in response to Stephen Shaw’s independent review of detainee welfare. Indeed, I have made a point of visiting some of our immigration removal centres to see the conditions there. I am well aware that many people associate detention with the torture they have had inflicted upon them, and therefore there is a concern that people will see detention as bringing back the terrible experiences they have had.