The government has tabled a number of adjustments to the rules on detention, to come into force this summer. The most significant is the changed definition of “torture” in the context of the detention of vulnerable people.

Government forced to change tack on torture

The revision comes following the judgment in the case of Medical Justice & Ors v Secretary of State for the Home Department [2017] EWHC 2461.

In September 2016, the Home Office narrowed its definition of “torture” to exclude acts committed by non-state actors. This meant that those who had been tortured by a non-state group, such as paramilitaries or terrorist groups, could be detained by the Home Office.

The court in Medical Justice held that this new approach was unlawful, as explained in this post written at the time. In a wide-ranging judgment, the High Court concluded that:

Aspects of the [Adults at Risk in Immigration Detention statutory guidance] in relation to the definition of “torture” are unlawful: the correct interpretation of “torture” in R35 [of the Detention Centre Rules] was ignored; the list of indicators was exclusive; this conflicted with the purpose of s59 [of the Immigration Act 2016], and lacked a rational or evidence base. The UNCAT definition of “torture” intended for use in the AARSG and R35 would require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach. All this meant that E[quality] A[ct 2010] issues were not considered on the proper basis.

This has led to a significant revision of the definition of “torture”.

The new definition of “torture”

The change to Rule 35 of the Detention Centre Rules is made in the Detention Centre (Amendment) Rules 2018 (SI 2018 No. 411). Associated changes to statutory guidance are made in the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018 (SI 2018 No. 410).

The new definition will come into force on 2 July 2018, a full nine months after the government’s loss in the High Court.

Rule 35 is amended as follows:

(6) For the purposes of paragraph (3), “torture” means any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in a situation in which—

(a) the perpetrator has control (whether mental or physical) over the victim, and

(b) as a result of that control, the victim is powerless to resist.

At present it is very difficult to secure release from detention under Rule 35. In the last published quarter (Q4 2017), there were 693 “Rule 35 reports” prepared by medical practitioners, resulting in only 107 people released from detention.

While widening the definition to include non-state actors is a step in the right direction, significant problems remain. The wisdom of a novel legal definition of a torture, for use exclusively in the context of detention, is surely open to question. The substance of the definition itself has also come under attack. The charity Freedom from Torture says that the new definition is “needlessly complex and engages vague concepts that have no clinical or legal foundation”.

Detention of vulnerable people

The Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018 also introduce new guidance on the detention of vulnerable people. This replaces the existing guidance from 2 July.

The new guidance is identical to the old, save for an amended paragraph relating to “indicators of risk”. The list of conditions or experiences which indicate that a person may be particularly vulnerable to harm in detention is now followed by:

The above list is not intended to be exhaustive. Any other relevant condition or experience that may render an individual particularly vulnerable to harm in immigration detention, and which does not fall within the above list, should be considered in the same way as the indicators in that list. In addition, the nature and severity of a condition, as well as the available evidence of a condition or traumatic event, can change over time. (emphasis added)

The introduction of clear guidance that the list of indicators is not exhaustive clearly follows from the judgment in Medical Justice.

Short-term Holding Facilities

The government has also introduced a set of rules on detention in holding rooms at ports and airports. The Short-term Holding Facility Rules 2018 (SI 2018 No. 409) also cover the sole short-term residential detention centre currently open — holding rooms are known as “non-residential” STHFs — and commence on 2 July.

These rules contain a number of stipulations on admission and discharge, facilities within STHFs, and access by other persons to the facility.

One development is the introduction of a statutory time limit on detention in holding rooms. Rule 6 provides that individuals may not be detained in a holding room for more than 24 hours unless there is authorisation by a SEO/Senior Officer grade, or above, where exceptional circumstances require it.

By comparison with the change in the definition of “torture” above, this development seems cosmetic. The Home Office’s Policy Equality Statement explains that “it will not in practice affect reporting centre holding rooms as these facilities are not operated on a 24-hour basis”.