Author
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. The relevant guidance is the ‘Adults at Risk in immigration detention’ and it permits the detention of vulnerable people in certain circumstances as identification as an adult at risk does not automatically result in release. A person will be considered an adult at risk if they say or if medical or other evidence is provided that they are suffering from a health condition or have experienced trauma (such as torture) that would mean they are particularly vulnerable to harm in detention. Alternatively, observations from members of staff that lead to a belief that the person is at risk could also lead to them being classed as an adult at risk under the policy.[1]
Rule 35 of the Detention Centre Rules provides that where there is evidence that a detainee has been tortured, or for any other reason their health would be injuriously affected by detention, a report should be made to the caseworker for release to be considered. Rule 35 guidance was updated in 2019.[2]
Following a review of the treatment of vulnerable people in detention (“the Shaw Review”) in January 2016,[3] 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 Adults at Risk policy guidance issued in response the report, which also fulfilled the requirements of section 59 of the Immigration Act 2016, makes it more difficult to secure release based for example on their experiences of torture or of their deteriorating mental health, as the policy expects a heavy evidential burden to be met.[4] As a result, vulnerable people continue to be unlawfully detained.[5]
The definition in the Adults at Risk policy was more limited than that provided in the UN Convention against Torture (UNCAT). In a case brought by Medical Justice the definition in this new policy was challenged; the case was heard in March 2017 and judgment delivered in October 2017.[6] At an early stage of the case the Home Office was ordered to revert to the more generous UNCAT definition, which as the case was successful, remains the policy.
Stephen Shaw, former Prisons and Probation Ombudsman, was asked to review the extent to which his recommendations have been met; this review began in autumn 2017 and was published in July 2018,[7] alongside a response from the Home Secretary.[8] The government has since then increased its use of detention, including of vulnerable people as a new policy on detaining victims of trafficking was published in November 2021.[9]Oversight of the Adults at Risk Policy forms part of the work of the Independent Chief Inspector of Borders and Immigration.[10] The ICIBI’s second report into Adults at Risk[11] concluded that the policy and practice improvements were moving at ‘an unacceptably slow pace’ even taking into account the difficulties posed by the Covid-19 pandemic. As with other ICIBI reports, the government response is published simultaneously[12] and only accepted the recommendations in part, including not wholly accepting that previous recommendations be implemented. The ICIBI’s third annual inspection found that the Rule 35 report process, which is supposed to identify people who will be harmed by detention, was not working as it should, and that there were delays as well as unfounded suspicions of abuse of the system by detention centre staff.[13]
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.[14]
During the passage of the Immigration Act 2016, the government announced a time limit for the detention of pregnant women.[15] 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 the “Shaw review”, published in January 2016. The Home Office published specific guidance concerning the detention of pregnant women in November 2016.[16]
Although there were no official reports of the numbers of pregnant women detained the practice continues, as described in a media article.[17] The only immigration removal centre exclusively for women was Derwentside immigration removal centre which opened in December 2021, and in November 2023 the government announced that in 2024 it would be repurposed and become an all-male facility.[18] Yarl’s Wood immigration removal centre was previously for women only but was converted to mixed sex in January 2021, holding mainly male detainees. A 2022 inspection found it “not safe enough”.[19]
Detention of children
Where a person is treated after screening as under 18 they are not detained. The published policy of the Home Office 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,[20] and this is the purpose of the family ‘Pre Departure Accommodation’, which has been located at Tinsley House Removal Centre since May 2017. 31 children entered detention in 2022.
It is not known how many age disputed children are detained, the guidance states that the threshold for anyone claiming to a child is high and that caution must be exercised against detention.[21]
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.[22] Torture survivors continue to be detained even after Rule 35[23] reports (see section on Special Procedural Guarantees).[24] 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 IRC. 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.[25] There have been numerous reports on the damage caused to detainees’ mental health, including suicidal ideation, self-harm, depression and post-traumatic stress disorders.[26]
[1] Home Office, Adults at risk in immigration detention, 16 March 2022, available at: https://bit.ly/3OPJrGn and Home Office, Offender management: caseworker guidance, 18 March 2024, available at: https://bit.ly/4bOhBE5.
[2] Home Office, Detention services order 09/2016 Detention centre rule 35 and Short term Holding Facility rule 32, March 2019, available at: https://bit.ly/2RLvoDw.
[3] Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, Cm 9186, January 2016, available at: http://bit.ly/2kqYkln.
[4] Medical Justice, Putting Adults at Risk, 2018, available at: https://bit.ly/4bKzrIh.
[5] See e.g. Duncan Lewis, ‘Home Office Admits Unlawfully Detaining Person with Severe Mental Illness After Legal Claim’, 6 February 2024, available at: https://tinyurl.com/3czh9e9a.
[6] Medical Justice and Others v Secretary of State for the Home Department Equality and Human Rights Commission (Intervener) [2017] EWHC 2461 (Admin), available at: https://bit.ly/3uPGs9W.
[7] Stephen Shaw, Welfare in detention of vulnerable people review: progress report, July 2018, available at: https://bit.ly/2JQVvmb.
[8] Home Office, ‘Home Secretary statement on immigration detention and Shaw report’, 24 July 2018, available at: https://bit.ly/2uVZdGQ.
[9] Home Office, Offender management: caseworker guidance, 18 March 2024, available at: https://bit.ly/4bOhBE5.
[10] Independent Chief Inspector of Borders and Immigration, Call for evidence: ‘Adults at Risk’ in immigration detention, 25 January 2019, available at: https://bit.ly/2ETM5XY.
[11] ICIBI, Second annual report into Adults at Risk in Immigration Detention, 21 October 2021, available at: https://bit.ly/33Viz30.
[12] Government response to the second ICIBI report on Adults at Risk in Immigration detention https://bit.ly/3SRNLWE.
[13] ICIBI, Third annual inspection of Adults at Risk Immigration Detention June to September 2022, 12 January 2023, available at: https://bit.ly/3UP6ZPg.
[14] Section 60 Immigration Act 2016.
[15] Government, ‘New time limit planned for pregnant women in detention’, 18 April 2016, available at: http://bit.ly/2lcjhBE.
[16] Home Office, Detention Services Order – Pregnant women in detention, 1 November 2016, available at: https://bit.ly/3OT0QOg.
[17] The Guardian, ‘Unlawfully detained woman who miscarried receives £50k payout’, 19 August 2019, available at: https://bit.ly/31N8dx3.
[18] Home Office, ‘Promotional material: Derwentside immigration removal centre: factsheet’, 15 January 2024, available at: https://bit.ly/3uKhitq.
[19] HMIP, ‘Yarl’s Wood – worrying decline in safety for detainees held in prison-like conditions’, 3 October 2023, available at: https://bit.ly/3SPTht5.
[20] Home Office, Family Returns Process operational Guidance, available at: November 2023, https://bit.ly/3uPGA9q.
[21] Home Office, Assessing age for asylum applicants: caseworker guidance, 31 March 2023, available at: https://bit.ly/48q3iTy.
[22] For example, High Court, R (on the application of Lamari) v Secretary of State for the Home Department [2012] EWHC 1630, available at: https://bit.ly/3SHqLti, and Court of Appeal, R (on the application of Das) v Secretary of State for the Home Department [2014] EWCA Civ 45, available at: https://bit.ly/48nBuPr, High Court, R (on the application of MD) v Secretary of State for the Home Department [2014] EWHC 2249 (Admin), available at: https://bit.ly/49pJ5OP.
[23] Rule 35 Detention Centre Rules, available at: https://bit.ly/3T5VMbQ.
[24] ICIBI, Third annual inspection of Adults at Risk Immigration Detention June to September 2022, 12 January 2023, available at: https://bit.ly/3UP6ZPg.
[25] APPG on Refugees & APPG on Migration, The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom, 2015, available at: http://bit.ly/1GLjtbG.
[26] Helen Bamber Foundation, The impact of immigration detention on mental health, September 2022, available at: https://bit.ly/3T8v3LK.