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

Lord Rosser Excerpts

Wednesday 27th June 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bringing this Motion forward. I start from the position that immigration detention does not do anybody any good. I find it hard to think that one would be liable to be harmed, whether one is vulnerable—a term I do not find easy—or not. Which of us would be robust enough?

In a previous debate, I quoted from Never Truly Free, a recent British Red Cross report on the humanitarian impact of the UK’s immigration detention system, including the mental health of detainees after release. It concluded:

“Immigration detention has a known negative impact on mental health. Most detainees will have experienced some form of trauma in their life before detention, the effects of which can be exacerbated in detention”.


It also stated:

“The damage done by detention does not simply go away once someone is released and the negative impact on mental health persists long after detention”.


I say this because I do not want to belittle, by implication, the experience of detainees who are not vulnerable—or at any rate, not “particularly vulnerable”, as per the phrase in Section 59—and to make the point that the definition of torture might be a little less difficult if we detained fewer people and for no longer than a maximum fixed period.

I have some sympathy with those who struggle with that definition, but this will always be a problem when you start from the wrong place and grapple with something that is not necessary. As has been asked, why is it necessary to distinguish torture from ill treatment for this purpose? The noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Lister, referred to Shaw—like Leveson, he must have got used to becoming a noun. It prompts me to ask whether he had any input in the content of these statutory instruments. Indeed, has he approved the definition?

As we have heard, we have been briefed by organisations with considerable experience of both working with victims of extreme cruelty and advancing the understanding of torture. They are very critical of the Government’s approach, both the detail and the principle. As we have also heard, the court did not require the Home Secretary to define the term.

What are we to make of the paragraph on “Consultation outcome” in the Explanatory Memorandum to the two instruments? It states that,

“the Home Office has discussed the proposal”—

that is, the definition—

“with interested non-governmental organisations (NGOs). The Home Office has considered comments made by NGOs and has committed to engaging with them as the detailed guidance and training for decision makers are developed”.

I was not aware that NGOs had the limited opportunity described to give their views to the Home Office, but those views are not reported in the memorandum. I take it that they were not accepted. As a matter of good practice, it seems to me that the memorandum should be much clearer on this.

My confidence in the process was not helped by the Explanatory Note to both instruments. It states:

“A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen”.


I do not know about a financial impact, but by definition there will be an impact on those undertaking Rule 35 assessments and on the numbers held in detention. There must be an impact. Medical practitioners have a difficult enough task in making assessments with time and other constraints and in a place and in circumstances which are far from the safe and supportive environment needed to work with such patients—I use the term deliberately—and which are likely to contribute to ongoing trauma, to exacerbate symptoms and to impede the healing process.

I am also interested in the concepts of control and powerlessness in the definition. At any rate, they certainly allow for the argument that a victim with a particular history of being controlled and powerless will experience detention as torture. With regard to that history, what is meant by powerlessness? The noble Lord has raised this point. Will the Minister confirm that the definition is not confined to a physical situation and that control and powerlessness may be different for different people?

Under the draft guidance, an individual is regarded as at risk—we discussed this at Questions the other day—if they are,

“particularly vulnerable to harm if placed or remaining in detention”.

Why is this in addition to the history? Why has it been added? In fact, as a matter of the construction of paragraph 7, is that something that the individual needs to declare, or is it an objective matter for the third party? I have read the paragraph several times and I am not sure.

I understand that the guidance introduces a wider range of immigration factors than before, placing far greater emphasis on non-compliance. My final question is: does this not of itself affect the balance, which we are told is sought, between,

“protecting the vulnerable and ensuring the maintenance of legitimate immigration control”?

That comes from paragraph 1, on the purpose of the guidance.

In summary, these Benches support the Motion. We share the noble Lord’s regret and our regret goes much wider, too.

[Lord Rosser (Lab)]

I add my thanks to the noble Lord, Lord Ramsbotham, for providing us with this opportunity to debate this issue of concern over the Government’s actions and decisions on the welfare of vulnerable people in immigration detention. We agree with the concerns that the noble Lord expressed about how the Government are dealing with this matter and his proposals for addressing the situation.

As I understand it, it is meant to be Home Office policy that vulnerable people, which includes the victims of torture, should be detained only in exceptional circumstances, for example, if they are likely to offend or cause a public safety risk. However, that does not always appear to be the case, because in the year ending last March there were apparently well over 26,000 exceptional circumstance cases in immigration detention. Once again, as I understand it, these are not even people whose removal is imminent, since about half are released back into the community.

In his first review, Stephen Shaw said that detention in and of itself undermines welfare and contributes to vulnerability. Half a dozen court cases in the last few years have drawn attention to the unacceptable treatment of detainees. I believe that the death rate among detainees in immigration detention has risen. Last year, 11 people died in custody.

The situation reached such a state that in 2015 the now Prime Minister, then Home Secretary, asked Stephen Shaw, the former Prisons and Probation Ombudsman, to conduct a review of the welfare of vulnerable persons in detention. His report concluded that the safeguards for vulnerable people were inadequate, that immigration detention was used too often and for too long, and that the impact on mental health increases the longer detention continues. However, in implementing their adults at risk policy, the Government did not fully address the concerns raised by Stephen Shaw. Indeed, the Government’s detention centre rules and guidance on the detention of vulnerable persons seemed to increase the risk of harm. In its first 10 weeks of implementation, the Government’s adults at risk policy was applied incorrectly in almost 60% of 340 cases. Torture survivors continue to be detained and torture is one of the 10 indicators of risk in the adults at risk policy.

The guidance on the detention of vulnerable persons increases the burden of providing evidence on the vulnerable individual, since specific evidence will be needed that detention is likely to cause harm and the risk of harm in detention has to outweigh a range of immigration factors, such as the risk of absconding. In effect, it requires a person to prove that they will not abscond, which one would have thought was extremely difficult to do. The guidance already includes a broad range of immigration factors that can justify detention, even of torture survivors.

The result has been that the release rate, following a report designed to screen torture victims out of detention, has fallen considerably. In the third quarter of 2016, before the policy change, nearly 40% of those in the report in question were released. In the first quarter of 2018 that number had fallen to just 12.5%. Those figures were borne out in a 2017 High Court ruling in a case brought against the Home Office that the adults at risk policy unlawfully imprisons through immigration detention hundreds of victims of torture. The Home Office had previously decided to narrow the definition of torture so that it refers only to violence carried out by state actors. Apparently, it now excludes vulnerable survivors of non-state abuse, such as by ISIS, Hezbollah or the Taliban.

The Government have tabled the two statutory instruments we are discussing in response to the High Court’s ruling. However, the organisation that brought the successful case against the Home Office has said that the new torture definition is inappropriate and too complex for caseworkers and doctors to apply to specific cases, and that even when applied correctly the definition will exclude a group of victims of severe ill treatment who do not fall within the other indicators of risk.

As I understand it, the Government were actually asked by NGOs to await the publication of Stephen Shaw’s re-review into the welfare of vulnerable people in detention to allow consideration of his findings before laying changes before Parliament. The Government have now had the Shaw re-review for some two months, but others have not been given a chance to consider his latest recommendations since, subject to the Minister saying otherwise, it has not been made available by the Government.

The Government’s argument for not allowing consideration to be given first to the findings of Stephen Shaw’s re-review appears to be that they could be in difficulty if they have not produced a revised adults at risk policy within 12 months of the October 2017 High Court judgment. But did the judgment specifically say that, and did it say that the Government should not await the outcome of any re-review before revising their adults at risk policy? The Government have had the Shaw re-review for two months. There is nearly a further four weeks to go before the Summer Recess, without taking account of the two-week short sitting in September. If this Government want to speed up processes, they have previously shown that they can do so. They could have, and still can, in this case and ensure that there is an opportunity to consider these two statutory instruments while they are still drafts in the light of the findings of Stephen Shaw’s re-review. Doing so might avoid the Government having another uncomfortable day in court.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank the noble Lord, Lord Ramsbotham, for securing this debate. I want to say at the outset that I appreciate his insight into this issue of immigration detention and the concern that he has consistently shown for the welfare of detainees. I also thank other noble Lords from all sides of the House for their contributions.

We put significant effort into encouraging individuals to comply with the Immigration Rules and to support those with no right to remain to leave the UK voluntarily. Unfortunately, a minority of individuals refuse to comply, and detention can be a necessary and proportionate tool for enforcing their return.

As I have said, detention is used sparingly, and we operate a strong presumption in favour of not detaining. At any one time, of those people with no lawful basis of stay in the UK and who are liable to removal, 95% are managed in the community and not in detention. The number of individuals whom we detain has decreased. In the year ending March 2018, there was an 8% reduction in the number of people entering detention compared with the previous year.

For every individual detained, there must be a realistic prospect of removal within a reasonable timescale. As part of the decision to detain, there should be an assessment as to the likely duration of detention. In addition, alternatives to detention will have been considered, or will have failed, in each case.

The majority of people are held for short periods. Ninety-one per cent of those leaving detention in the year ending March 2018 were detained for less than four months and 64% for 28 days or less.

As the noble Lord, Lord Rosser, mentioned, the welfare of vulnerable people in immigration detention is of the utmost importance to the Home Office. Where it is necessary to detain people to remove them, a number of safeguards are in place. One of these is the adults at risk in immigration detention policy, referred to by the noble Lord. Others include the presence of healthcare staff in all immigration removal centres and residential short-term holding facilities; a comprehensive suite of published guidance and operating procedures to govern conditions in centres and support the well-being of detainees; regular reviews of detention by senior officers to ensure that detention remains appropriate; and independent judicial oversight of immigration detention.

The adults at risk policy, implemented in September 2016, provides a vital safeguard. It was a key part of our response to Stephen Shaw’s review of the welfare of vulnerable people in immigration detention commissioned by the Prime Minister when she was Home Secretary. Under this policy, vulnerable people are detained, or their detention continued, only when the immigration considerations in their case outweigh the evidence of vulnerability—the balance that the noble Baroness, Lady Hamwee, talked about. Detention decisions are made on the basis of all available evidence. Cases are reviewed at regular intervals and whenever new evidence comes to light in respect of removability and vulnerability.

That brings me to the new definition of torture in the context of immigration detention. I do not think that anyone would dispute that victims of torture—and, indeed, all those identified as vulnerable—should be considered to be particularly at risk of harm in immigration detention. But it is not, and has never been, government policy that such individuals should never be detained. There is no absolute exclusion from detention for any category of person. However, for individuals considered to be at risk, the policy strengthens the presumption against detention. It carefully balances an individual’s vulnerability considerations against the immigration considerations so that detention is considered in individual cases only when immigration considerations outweigh the risk identified.

The way in which torture is defined in the context of immigration detention has a long history. We currently use the EO definition established in case law in 2013. This is a broad definition which led to some cases being inappropriately considered as torture, thereby diverting attention from the most vulnerable. As a result, the Home Office brought into force the United Nations Convention against Torture definition of torture, with the introduction of the adults at risk in immigration detention policy in 2016. Following a judicial review of the policy, and as an interim relief measure, the High Court ordered the Home Office to revert to the EO definition, and we did so in December 2016. The court subsequently declared the UNCAT definition to be unlawful when used for the purposes of immigration detention. However, it declared that the adults at risk policy was inherently sound and lawful.

In addition, the court further stated that the EO definition was deficient for the purposes of immigration detention. The judge set out his carefully considered view of what a rational definition should look like in this context, taking into account the impact of acts of harm on those in detention. He came to this view having heard a wealth of expert evidence, including that provided by experts associated with the litigants, Medical Justice. We have used the judge’s clearly expressed view as the basis for the definition set out in the statutory instruments laid before Parliament on 27 March 2018. In answer to the question “Why can’t we withdraw the SIs?”, we cannot withdraw them and revert to the old definition of torture as laid out in EO as that was judged to be deficient for the purposes of immigration detention. It was too broad and led to some cases being inappropriately considered, diverting attention from the most vulnerable, as I have said.

The court also said that the broad safeguarding provisions were not effective and the guidance needed to be amended. The statutory instrument bringing into force the revised statutory guidance meets this requirement.

Noble Lords have said that the Home Office should have waited for Stephen Shaw’s follow-up report to be published before making any amendments to the definition of torture. Let me be clear: the changes we are making are to implement the court’s judgment in full, with the reasonable timescales it set out. Until Mr Shaw’s report has been formally published, I cannot discuss its contents. However, I can say that officials kept Mr Shaw’s team informed of the work they were doing to implement this new definition while they engage with the NGOs on this issue.

[Lord Rosser]

In the light of the Minister’s comment that officials had informed Stephen Shaw of what they were doing, is she saying, or seeking to imply, that in fact his re-review has given the Government’s proposals in these statutory instruments a clean bill of health? If that is what it has done, why not publish it now?

[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—