Detention of vulnerable applicants
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. In practice vulnerable individuals are detained.
Following a review of the treatment of vulnerable people in detention (“the Shaw Review”) in January 2016, 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 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. 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. 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 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, alongside a response from the Home Secretary. The response elicited a mixed reaction from stakeholders although in its evidence to the Joint Committee on Human Rights the government laid out details of its strategy. Criticisms of the safeguards introduced as a result of the initial report remain. Oversight of the Adults at Risk Policy will now form part of the work of the Independent Chief Inspector of Borders and Immigration.
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.
During the passage of the Immigration Act 2016, the government announced a time limit for the detention of pregnant women. 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 July 2016.
The latest inspection of Yarl’s Wood IRC in June 2017, the detention centre for women, reported that some conditions had improved since the previous report although:
- 70% of detained women were released into the community, not removed from the UK.
- few women were released on the basis of torture evidence; it was noted that the Home Office were reluctant to see rape as torture;
- Whilst the number of pregnant women detained had reduced, 28 were detained in the six months leading up to the inspection.
Although there were no official reports of the numbers of pregnant women detained the practice continues, as described in a media article.
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, and this is the purpose of the family ‘Pre Departure Accommodation’, which has been located at Tinsley House Removal Centre since May 2017.
73 children entered detention in 2019, including 42 ‘child asylum detainees’.
The instances of applicants detained as adults and found to be children has reduced since the case of AA in June 2016, although they do still occur but are not recorded.
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. Torture survivors continue to be detained even after Rule 35 reports (see section on Special Procedural Guarantees). 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. 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. A report by Amnesty International UK looked into the use of detention and its consequences; in their interviews with detainees and their families the most common consequences reported were damage to mental and physical health and harm for family members, particularly women and children.
Following the Shaw Review in January 2016, 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 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. 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. The Immigration Rules were amended to reflect the new definition of torture. The Adults at Risk policy has also been revised. The Independent Chief Inspector of Borders and Immigration is conducting an annual review of adults at risk in Immigration Detention but the government has yet to publish the first year’s report.
Home Office, Enforcement Instructions and Guidance – Chapter 55 Detention, para 55.10
Section 60 Immigration Act 2016.
The Guardian, ‘Unlawfully detained woman who miscarried receives £50k payout’, 19 August 2019, available at: https://bit.ly/31N8dx3.
 Home Office, Enforcement Instructions and Guidance, Chapter 45 Families and Children, Family Returns Process operational Guidance.
High Court, AA v Secretary of State for the Home Department  EWHC 1543 (Admin), 20 June 2016.
For example, R (S) v Secretary of State for the Home Department  EWHC 2120 (Admin); R (BA) v Secretary of State for the Home Department  EWHC 2748 (Admin); R (HA) v Secretary of State for the Home Department  EWHC 979 (Admin); R (D) v Secretary of State for the Home Department  EWHC 2501 (Admin); R (on the application of Lamari) v Secretary of State for the Home Department  EWHC 3130 and R (on the application of Das) v Secretary of State for the Home Department  EWCA Civ 45, R (on the application of MD) v Secretary of State for the Home Department  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’ (2013) 27:1 Journal of Immigration Asylum and Nationality Law 41-46.
Rule 35 Detention Centre Rules.
 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.
Home Office, Review of Mental Health Issues in Immigration Removal Centres Immigration & Border Policy Directorate, 2015.
All Party Parliamentary Group on Refugees & the All Party Parliamentary Group on Migration, The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom, 2015, available at: http://bit.ly/1GLjtbG.