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

Debate between Simon Hoare and Afzal Khan

Wednesday 6th June 2018 General Committees

[Afzal Khan]

The subject before us may seem specific and technical, but it speaks to something much wider—the punitive hostile environment targeting the wrong people. The Windrush scandal brought to light shocking examples of vulnerable people getting swept up in the Government’s attempts to meet their immigration target. The public were outraged and rightly worry that the Home Office has gone too far. The former and current Home Secretaries recognised that the Home Office has lost sight of the individual and needs to be more humane and fair.

The continued detention of vulnerable people is one of the most extreme instances of Home Office inhumanity and unfairness. The Government now have the chance to get ahead of another Windrush scandal. We know that, with Windrush, warnings were not heeded. I say to the Minister today: “On this issue, you have been warned.” With Windrush, the Government removed legislative protections without scrutiny or debate. When the impact of those changes came to light, there was, rightly, outrage and condemnation of that approach. The current definition of torture was brought in in 2016 without proper consultation or debate. The result was the Home Office losing a legal battle with Medical Justice and detainees.

The Government have now carried out last-minute and very limited consultation. Those they did consult strongly urged the Government not to go ahead with these statutory instruments but to wait until the Shaw review has been published. However, those pleas have been ignored. I say to the Minister today that the Government must wait until the Shaw review has been published and consult on the full range of protections for vulnerable people in detention. Listen to us now and get ahead of the problem.

We object to the torture definition that is being considered today on two grounds. First, it is unworkable. It is too complex to be applied by Home Office staff or doctors. Concepts such as powerlessness are highly complex and nebulous. They require caseworkers to make a subjective judgment, and to go beyond the expertise of doctors being asked to decide these cases. Determining whether someone fits the definition would require doctors to interrogate detainees in a way that far exceeded the purpose of the safeguard. The problem with the previous definition that was being used, and the reason why the Home Office lost in court, was that caseworkers could not correctly apply the policy. They will have the same problem with these changes.

Secondly, it is unnecessary. The Government are attempting to construct a narrow definition of torture. It is not proposed that the definition will define a criminal offence; it is supposed to be an indicator of vulnerability to harm in detention, for use as part of the rule 35 process. As all colleagues will know, rule 35 is the mechanism by which vulnerable detainees can be brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. If it is implemented in its current form, even if it is applied perfectly, the definition of torture will exclude victims of severe ill treatment from the rule 35 process, subject to harm in detention. The Secretary of State has the power to create an inclusive category of people to be protected by the adults at risk policy. They should do that as part of a review of detention centre rules and adults at risk guidance.

Despite how the Government would like to spin it, this is not a narrow debate. This is not just about the definition of torture. Rule 35 and the torture definition it uses is just a small part of the wider adults at risk policy—the policy introduced after the Shaw review, which was commissioned by the Prime Minister when she was Home Secretary after serious and repeated scandals over the treatment of people in detention. It was supposed to provide better protection for vulnerable people in detention, but since its introduction we have seen the release rate of rule 35 go down dramatically.

In 2016, before the policy was introduced, 39% of those with a rule 35 report were released. In the first quarter of this year, that had fallen to 12.5%. The bar for proving torture has risen, and the burden of proof has been shifted on to the vulnerable individual. Under the old policy, victims of torture only had to show independent evidence of their history of torture to be considered unsuitable for detention. Now they must prove that detention is likely to cause harm. It is, of course, very difficult to prove that detention will cause harm unless someone has been detained, so preventive action is almost impossible.

On top of that, under the previous policy, victims of torture could be detained only under very exceptional circumstances—that is, if they were likely to offend or cause a public safety risk. Now, however, the risk of harm in detention has to outweigh a wide range of immigration factors, such as the risk of absconding, which is widely defined and requires a person effectively to prove a negative. How can someone prove that they will not abscond?

[Simon Hoare (North Dorset) (Con)]

I am listening with considerable care to what the hon. Gentleman is saying. He is deploying his arguments in his usual thoughtful way. Could he just clarify, if for nobody’s reference other than my own, his party’s position on the use of detention centres per se, as part of the arsenal of immigration control and management? What role does he see detention centres playing? Different Labour spokespeople, at different times, seem to have suggested both that such centres should exist and that they should not.