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Are safeguards from the harm caused by immigration detention working?
This article provides an overview of some of the safeguards available for those who are held in immigration detention, focussing particularly on those who have been victims of torture. These safeguards are all the more important following the expansion of detention powers under section 12 of the Illegal Migration Act. Despite the many changes, it has been made clear that the adults at risk guidance remains applicable to any person who would be particularly vulnerable to harm in immigration detention.
Safeguards under the Detention Rules 2001
Under rule 34 of the Detention Rules 2001 every person entering detention should be offered an appointment with a medical practitioner at the immigration removal centre where they are being held within 24 hours of arrival. This should include an examination of their physical and mental health.
If a disclosure is made or concerns are raised that a person may be injuriously affected by detention, has suicidal intentions or have been tortured then an appointment must be made with a doctor for an assessment to be completed under rule 35 of the Detention Rules 2001. This aims to ensure that particular groups are brought to the attention of those within the Home Office with direct responsibility for reviewing detention and the power to order the person’s release.
There is an ongoing duty on health professionals in the immigration removal centre to report to a doctor “any detainee who claims to have been a victim of torture or gives an indication that this might have been the case”.
If, for any reason (of which there may be many), a disclosure around possible vulnerabilities has not been made during a healthcare appointment, or indeed has been missed, it is possible for an individual to make their own request for a rule 35 assessment to be carried out.
It should be noted that reports from third parties about a person’s health or claims that they are a victim of torture, for e.g. a letter from their legal representative or previous GP, will not automatically result in a rule 35 assessment being completed. However, they must be forwarded to the immigration removal centre doctor and Home Office responsible officer to review.
What is a rule 35 report?
Rule 35 requires the immigration removal centre medical practitioner to assess any detained person:
(1) whose health is likely to be injuriously affected by continued detention or any conditions of detention;
(2) who is suspected of having suicidal ideations; or
(3) who the practitioner is concerned may have been a victim of torture
If there are concerns about any of the above then a report should be prepared. These reports must be prepared by a doctor only and are to be provided on specific templates depending on which subsection applies (which can be found in Detention services order 09/2016 v.7.0).
It should be noted that even if disclosures are made, a doctor is not required to make a report under rule 35(3) if they do not have their own concerns that the detainee may have been a victim of torture or does not meet the definition of torture, as set out in the The Detention Centre (Amendment) Rules 2018.
In their casework, Medical Justice, have seen an increase in the number of rule 35 responses stating that this definition has not been met and have expressed concerns surrounding this. It is important to note that even if it is considered that the definition of torture has not been but there are still have concerns that the person may be an adult at risk who is vulnerable to harm in detention this should still be raised with the immigration enforcement detention engagement team.
Regardless of whether it is a report under rule 35 subsection 1, 2 or 3 the doctor must set out the basis, with evidence, for the specific concern.
What happens next?
The medical practitioner must submit the report to the manager of the immigration removal centre who is required to send a copy of the report to the Secretary of State/relevant Home Office official without delay.
Once the report has been sent to the relevant Home Office official, they have two working days to provide a response. The response must engage with the concerns raised and set out clearly the reasons why detention is, or is not, being maintained. In light of the content of the report, the person’s detention should be reviewed in line with the Adults at Risk policy
Any response should be provided to the person detained, explained to them with the use of an interpreter if needed, and should be sent to the legal representative, if there is one recorded on file.
The response must also be sent back to the doctor, so they are aware of the outcome. If a doctor feels that the concerns raised in their report have not been properly addressed, then it is open to them to escalate this with the Home Office, however it is unclear how frequently this happens in practice.
Is the rule 35 process working?
Unsurprisingly, this process does not work seamlessly. Medical Justice have done extensive research on this issue and in April 2022 produced the report “Harmed Not Heard: failures in safeguarding for the most vulnerable people in immigration detention” which sets out in detail the systemic issues with the process. In preparation for the report Medical Justice analysed anonymous data from 45 medico-legal assessments completed between July and December 2021 and found that:
82% of the people identified by Medical Justice clinicians as having clinical evidence of a history of torture, of that group four of those did not have a Rule 35(3) report included and of the 34 Rule 35(3) reports completed, 76% did not directly identify the patient as at risk of harm caused by detention and no one had a separate Rule 35(1) report to identify the risk of harm to their health due to detention
These figures clearly indicate that the individuals had been failed by the rule 35 safeguarding system, something that has also been set out time and time again in other reports and publications including Helen Bamber Foundation’s report “Abuse by the System: Survivors of trafficking in immigration detention“. The Independent Chief Inspector of Borders and Immigration’s third annual inspection of ‘Adults at Risk in immigration detention’ which was published in January 2023 also identified significant shortcomings in the Rule 35 process. The report made a range of robust recommendations for how the rule 35 process could and should be improved.
The main takeaway from the reports on this issue is that the process itself is subject to long delays, there is too high an evidential burden; reports are routinely rejected for minor errors; the training is insufficient and internal review panel recommendations are overturned by senior Home Office officials.
Vitally, the Chief Inspector’s report made a strong recommendation that the Home Office:
Within 6 months, expedite the planned review of the Detention Centre Rules which includes the review of Rule 35, taking into account the findings of this inspection, with particular reference to the development of a resilient, operational model for the Rule 35 team, to enable it to effectively meet peaks in volumes of Rule 35 reports received. (recommendation 8)
The Home Office partially accepted this recommendation. This review remains outstanding.
Unevidenced allegations of “abuse” of the system
It is important to note that rule 35(3) reports are not the same as a medico-legal report. Immigration removal centre medical practitioners are not trained in standards relating to documentation of torture such as the Istanbul Protocol.
In light of the above it is all the more concerning that the Home Office appear insistent on “cracking down” on independent medical evidence provided for people in detention.
The background to this goes back to the first annual inspection on the Adults at Risk in Immigration Detention by the Independent Chief Inspector of Borders and Immigration, which covered the period of November 2018-May 2019. During this inspection Home Office staff indicated that they had concerns about the potential abuse of the use of medico-legal reports in detention cases. The Home Office asserted that they had seen a sharp increase in the number of reports submitted by certain nationalities who were subsequently released from detention. It was suggested that some legal representatives were commissioning reports with the intention of securing their clients’ release.
It was also alleged that medical evidence indicating vulnerabilities was untrue or exaggerated. The Home Office asserted that they were seeing reports from some experts commissioned by some legal representatives with ‘remarkable similarities’ between the histories of trauma given and the diagnoses contained in the reports as well ‘repeated use of whole sections of text’.
When pressed the Home Office declined to give further details of the allegations made. There also seemed to be little consideration that the medico-legal reports in question might have been a proper response to the high evidential threshold within the Adults at Risk policy or to the Home Office’s own flawed systems in place for identifying vulnerabilities in detention.
The Home Office were at pains to point out that no reputable report writers were involved in their concerns. Organisations such as Freedom from Torture, Helen Bamber Foundation, Medical Justice, the Immigration Law Practitioners’ Association and Forrest Medico-Legal Services responded that they shared the Home Office’s concerns, if there was evidence that medico-legal reports were being produced that were not objective and impartial and had been prepared for inappropriate reasons. The organisations added that they would encourage the Home Office to report clinicians found to be behaving improperly to their professional bodies (such as the General Medical Council). To date it does not appear that any such reports have been made.
The Home Office then launched a pilot project shortly before the Covid-19 pandemic, whereby independent clinicians would provide a ‘second opinion’ on the diagnoses included in medico-legal reports with which Home Office caseworkers had concerns. This pilot was suspended and then resumed in December 2020. A review of a small number of cases that had been considered by Home Office caseworkers was involved.
The second inspection of adults at risk in immigration detention
This issue was explored further in the Second annual inspection of adults at risk in immigration detention by the Independent Chief Inspector of Borders and Immigration. It was noted that, “All too often, their principal concern was the perceived abuse of the system, for example of Medico-Legal Reports, which coloured how staff at all levels thought about detainees and the safeguarding mechanisms which existed in the AAR policy”. The report also said that “the Home Office and inspectors had different perceptions as to the volume and depth of the evidence presented. The impact of the measures employed by the Home Office to address this abuse, such as referrals to regulators, was not always clear to inspectors.”
The Chief Inspector recommended that, “In future, where a case of fraud is suspected, take urgent action to bring this to the attention of the regulatory bodies responsible for investigating professional misconduct and malpractice”. As noted above it does not appear that this has been done.
It was also commented that the data on the number of, and outcomes from, medico-legal reports was poor. The inspection quoted the Home Office’s own internal analysis which showed that the number of detentions in which an medico-legal report was raised increased from 51 in 2017 to 2315 in 2019, but that analysis was caveated:
The data show the prevalence with which each issue was raised in detention. However, trends in prevalence should be interpreted with caution. An increase could be caused by many factors, including: (i) an increase in detentions of people with a genuine basis for raising that issue, (ii) increased awareness of that issue among people in detention and their representatives, or (iii) a change in the perceived likelihood of achieving one’s aims through one means rather than another.
Reasons for release can be complicated, and may involve multiple factors. As a result, we cannot say that someone raised an issue and was released as a consequence, only that they raised the issue and were subsequently released. … Outcomes of the issues raised are included where possible. However, a negative outcome does not necessarily mean that the issue was raised spuriously. The individual may have genuinely believed that their application was well-founded, but the relevant decision-making body disagreed with their claim. It is impossible to understand the person’s motivations purely from the statistics. Similarly, the fact that an issue was raised by an individual does not necessarily mean that the claim was well-founded.
The second opinion process
Despite there being an absence of comprehensive and reliable data on the evidence of abuse of the medico-legal report process, in September 2022 (updated 28 September 2023), following the pilot, an interim Home Office policy, Requesting a second opinion for an external medico legal report was published. This allows the Home Office to seek a second opinion from ‘a Home Office contracted doctor’. The basis upon which such a second opinion should be sought is unclear.
The pilot notes that “All external medical reports requiring consideration under the Adults at Risk in Immigration Detention (AAR) policy received while a person is detained under immigration powers should be referred into the second opinion process,” but restricts the number of reports which may be referred to 10 a week and “Referrals which are received above that capacity will not receive a second opinion, regardless of case background or profile.” All ‘second opinion’ assessments are conducted remotely by video-link. It goes on to state that:
Content from the second opinion report should be used to help determine the overall weight attributable to the external medical report. … For instance, in cases where the second opinion expresses concerns regarding the evidence or methodology presented, this may mean downgrading the evidence level which might have (on face value) otherwise resulted from the content of the external medical report.
Similarly, in cases where the second opinion echoes the concerns in the external medical report regarding the vulnerability of the person and potential impact of detention upon them, this serves to strengthen the evidence of the vulnerability.
The policy then directs for caseworkers to decide vulnerability based on whether “the Home Office contracted doctor writing the second opinion report considers [findings made in the external medical report/medico legal report] not to be well-founded.”
This policy is currently under challenge by Medical Justice and permission to proceed was granted on 25 July 2023. More details on this challenge can be found here. The full hearing was heard on 29-30 November 2023 and judgment is awaited so we should know more on this in the coming weeks or months.
Given there is clear clinical research on the detrimental impact that detention can have on a persons mental health, it is imperative that not only are legal representatives aware of the safeguards available to those in detention but are also aware of their failings. The failure to safeguard those in detention has been publicly laid bare in the Brook House Inquiry and according to research from Medical Justice shows that the failures in clinical safeguarding present at the time of the inquiry remain, and in some instances have worsened.
Indeed following the publication of the Brook House Inquiry Report the Independent Chief Inspector of Borders and Immigration wrote in the Guardian that he was concerned that the Brook House issues mirror concerns he had raised and that he was worried that the Home Office lacked the will to address them.
When giving oral evidence to the Home Affairs Committee recently the Chief Inspector elaborated on this and expressed frustration at not being able to discuss concerns with the minister and that “this is a huge area of risk, particularly against the backdrop of the Illegal Migration Act coming in and an increase in immigration detention. He was potentially putting more people at risk into a system that was broken”.
We are aware that the Independent Chief Inspector of Borders and Immigration is gearing up for his fourth Adults at Risk inspection and no doubt the recommendations will be worth looking out for.
This article was written with helpful contributions from Idel Hanley at Medical Justice.