Domestic policy is that vulnerable people are unsuitable for detention, and that they should only be detained exceptionally, or when their care can be satisfactorily managed. Those who, according to policy guidance, should be treated as vulnerable are the same in relation to detention generally as in the Detained Fast Track.1 In practice vulnerable individuals are detained.
Following a review of the treatment of vulnerable people in detention (the Shaw Review) in January 2016,2 NGOs expected that guidance would follow the main message of the report – that fewer people should be detained and that better systems need to be designed to reduce the number of vulnerable people detained. However, the policy guidance3 issued in response the report makes it more difficult to secure release based for example on their experiences of torture or of their deteriorating mental health. This is the subject of ongoing litigation.4
The Immigration Act 2016 has introduced an obligation on the Home Office to issue guidance on the detention of vulnerable groups.5
Detention of women
Pregnant women may only be detained where (a) they will shortly be removed from the UK; and (b) there are exceptional circumstances justifying detention.6
During the passage of the Immigration Act 2016, the government announced a time limit for the detention of pregnant women.7 This was in response to amendments proposed to the Bill by various parliamentarians calling for a complete prohibition, a recommendation that had been made in a review of the welfare of vulnerable persons in detention (“Shaw review”), published in January 2016.
The Home Office published specific guidance concerning the detention of pregnant women in July 2016.8
The most recent inspection of Yarl’s Wood IRC, the detention centre for women, found that 99 pregnant women had been detained during 2014.9 The most recent inspection of Dungavel House IRC found that a documented victim of torture and a woman with serious health problems had been detained.10 A Report by the Detention Forum found both the policy and its application inadequate. Of their sample of 31 detainees, 77% had experienced poor mental health.11
Research for the organisation Women for Refugee Women found that of the 46 women detainees interviewed, prior to their arrival in the UK, 72%, had been raped, 11 of them by soldiers, police or prison guards, and 41%, had been subjected to other forms of torture, most by state officials. Over 80% had been either raped or otherwise tortured.12 A smaller sample in a further study in 2014 made similar findings. Of the 34 women who disclosed their experiences of persecution to the researchers, 19 said they had been raped; 21 had experienced other sexual violence; 28 said that they had experienced gender-related persecution consisting of rape, sexual violence, forced marriage, forced prostitution, or female genital mutilation. 21 women said that they had been tortured in their home countries.13 Previous research for Medical Justice found that only 5% of pregnant women detained were in fact removed from the UK, the ground for which they were placed in detention.14
Detention of children
Where a person is treated after screening as under 18 they are not detained. Home Office published policy is that children may be detained for short periods pending removal if other steps in the family removal procedure do not result in their leaving the UK,15 and this was the purpose of the Cedars detention centre (which closed in October 2016). 74 children were recorded as leaving detention in 2016; 52 were given temporary admission or temporary release (into the community) and 17 removed from the UK. Of the remainder one was granted leave to remain and four recorded as ‘other’.16
The instances of applicants detained as adults and found to be children has reduced since the case of AA in June 2016. Figures published by the Children’s Rights Alliance for England (CRAE) state that between 1 January and 31 July 2016 the Refugee Council assisted 16 young people detained as a result of the Immigration Officer’s decision to treat as adult based on appearance only. Of these, seven were assessed as children and a further eight treated as children pending further assessment.17
Detention of seriously ill persons
The High Court has found a number of breaches of Article 3 ECHR in relation to the detention of severely mentally ill people and such detention has also repeatedly been found unlawful under domestic law and in the Court of Appeal.18 Torture survivors continue to be detained even after Rule 3519 reports (see section on Special Procedural Guarantees).20 A report for the Home Office by the Tavistock Institute concluded that vulnerable detainees could deteriorate in detention, partly because of antagonism between different agencies and the conflicted aims of detention. This could only be remedied by a culture change.21 Members of Parliament who conducted an inquiry into immigration detention found that people suffering from mental health conditions were detained for prolonged periods and that it was not possible to treat mental health conditions in IRCs. They recommended that at the very least the policy around mental health should be changed to that which was in place before August 2010, which stated that individuals with a mental health condition should only be detained under exceptional circumstances.22
The Home Secretary in February 2015 announced an independent review into the welfare of those in immigration detention.23 This review (“Shaw Review”) was published by the Home Office in January 2016 and initial reactions were broadly welcoming, as the review found that too many people were detained and made a total of 64 recommendations, some of them relating to policy (including an absolute prohibition on detaining pregnant women) and many relating to particular groups of people described as vulnerable. The government response was very much shorter, contained few concrete policy changes, although announced it would publish a new ‘Adults at Risk’ policy. When this policy was published,24 some of its contents were heavily criticised as a move that would result in fewer safeguards, not more.25
Detention of people with serious medical conditions, serious mental illness or serious disability, is only considered unsuitable if the condition 'cannot be satisfactorily managed' in detention.26 However, the centres are not equipped for elderly people and those with disabilities and few Immigration Removal Centres (IRCs) have 24 hour health care. The policy has been criticised by the UN Committee against Torture27 by the All Party Parliamentary inquiry into Immigration Detention,28 and by the Detention Forum.29
Until 2013 healthcare in IRCs was provided by private companies contracted to the UK Border Agency. In 2013, health care in England was transferred to the National Health Service commissioning provisions. This was a change which had been argued for by medical professionals, Parliamentarians and others. However, the NHS has contracted the healthcare in IRCs to commercial companies which have been running detention and escort services and not to specialist health providers. As a result, staff and facilities for identifying and treating mental illness and distress vary greatly between IRCs.30 The Home Office does not collect data on the numbers of people with mental illness in immigration detention. NGOs regularly request the numbers of incidents of self-harm in immigration detention which required medical treatment. These were 111 in the second quarter of 2015, with 554 individuals at risk. Detention centres have a local group of approved visitors, who provide an external point of reference for detainees and the centre. Visitors increasingly report that detainees are experiencing high levels of anxiety and distress, are self-harming, have symptoms of depression or post-traumatic stress disorder (PTSD), or are suffering from severe and enduring mental illness.31 The courts have held that even someone who is so severely ill as to be hospitalised may remain in immigration detention in hospital.
- 1. See para 55.10, Enforcement Instructions and Guidance – Chapter 55 Detention, Home Office.
- 2. Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, Cm 9186, January 2016, available at: http://bit.ly/2kqYkln.
- 3. Home Office, ‘Adults at Risk’ in immigration detention, 6 December 2016, available at: http://bit.ly/2l4ZXkS.
- 4. Medical Justice is challenging the policy: http://bit.ly/2l4d85J.
- 5. Section 59 Immigration Act 2016, available at: http://bit.ly/2jqhiEv.
- 6. Section 60 Immigration Act 2016, available at: http://bit.ly/2jqhiEv.
- 7. More information available at: http://bit.ly/2lcjhBE.
- 8. Home Office, Enforcement instructions and guidance – Chapter 55a Detention of pregnant women, 12 July 2016, available at: http://bit.ly/2jDmhBK.
- 9. HM Inspector of Prisons, Report on an Unannounced Inspection of Yarl’s Wood Immigration Removal Centre, 13 April – 1 May 2015, available at: http://bit.ly/1jcXlkH.
- 10. HM Inspector of Prisons, Report on an Unannounced Inspection of Dungavel House Immigration Removal Centre, 9 -20 February 2015, available at: http://bit.ly/1CXuYdk.
- 11. Detention Forum, Rethinking ‘Vulnerability’ in Detention: a Crisis of Harm Report by the Detention Forum’s Vulnerable People Working Group July 2015, available at: http://bit.ly/1MnTX0E.
- 12. Women for Refugee Women, Detained: Women Asylum Seekers Locked up in the UK, 2014, available at: http://bit.ly/1db63fw.
- 13. Women for Refugee Women, I am Human: Refugee Women’s Experiences of Detention in the UK 2015, available at: http://bit.ly/1WChYDl.
- 14. Natasha Tsangarides and Jane Grant, Expecting Change: The Case for Ending the detention of pregnant women, Medical Justice, 2013, available at: http://bit.ly/1H8tt30.
- 15. Enforcement Instructions and Guidance Chapter 45 Families and Children, , Family Returns Process operational Guidance.
- 16. Home Office, Statistics – Children in Detention, Q4 2016, available at: http://bit.ly/2lYPrA5.
- 17. CRAE, State of Children’s Rights in England 2016, November 2016, available at: http://bit.ly/2khAmqi.
- 18. For example, R (S) v Secretary of State for the Home Department  EWHC 2120 (Admin) (5 August 2011); R (BA) v Secretary of State for the Home Department  EWHC 2748 (Admin) (26 October 2011); R (HA) v Secretary of State for the Home Department  EWHC 979 (Admin) (17 April 2012); R (D) v Secretary of State for the Home Department  EWHC 2501 (Admin) (20 August 2012); R (on the application of Lamari) v SSHD  EWHC 3130 and R (on the application of Das) v SSHD  EWCA Civ 45, R (on the application of MD) v SSHD  EWHC 2249 (Admin). See Jed Pennington, Deplorable Failure, Bureaucratic Inertia and Callous Indifference: The Immigration Detention of Mentally Ill People by the UK Border Agency, Journal of Immigration Asylum and Nationality Law (2013) Vol. 27 no.1 pp. 41-46.
- 19. Home Office, Detention Centre Rules, Rule 35 available at: http://bit.ly/1N8GLM7.
- 20. Independent Chief Inspector of Borders and Immigration and Chief Inspector of Prisons, The effectiveness and impact of immigration detention casework, 2012, available at: http://bit.ly/1BGKAH8 and Natasha Tsangarides, The Second Torture: immigration detention of torture survivors, Medical Justice, 2012, available at: http://bit.ly/1GC9Yg2.
- 21. Review of Mental Health Issues in Immigration Removal Centres Immigration & Border Policy Directorate, The Home Office A report prepared for Home Office by Dr David Lawlor, Dr Mannie Sher and Dr Milena Stateva, 2014, published 2015.
- 22. The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom A Joint Inquiry by the All Party Parliamentary Group on Refugees & the All Party Parliamentary Group on Migration 2015, available at: http://bit.ly/1GLjtbG.
- 23. Home Office, ‘Home Secretary announces independent review of welfare in detention’, 9 February 2015, available at: http://bit.ly/1Gw1Hbo.
- 24. Available at: http://bit.ly/2cpNKYm.
- 25. Including Medical Justice, Briefing on ‘Adults at risk in immigration detention’ draft policy, available at: http://bit.ly/2kROeef.
- 26. UK Visas and Immigration, Enforcement Instructions and Guidance, Chapter 55.10, available at: http://bit.ly/1FwiCIP.
- 27. UNCAT, Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session, 6-31 May 2013.
- 28. The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom A Joint Inquiry by the All Party Parliamentary Group on Refugees & the All Party Parliamentary Group on Migration 2015 http://bit.ly/1GLjtbG.
- 29. Rethinking ‘Vulnerability’ in Detention: a Crisis of Harm Report by the Detention Forum’s Vulnerable People Working Group July 2015.
- 30. Ali McGinley and Adeline Trude, Positive duty of care? The mental health crisis in immigration detention, AVID and BID, 2012, available at: http://bit.ly/1BGukWG.
- 31. Ali McGinley and Adeline Trude, Positive duty of care? The mental health crisis in immigration detention, AVID and BID, 2012.