Torture survivors should not normally be detained by the Home Office.
But the awful truth is that they are. Regularly.
The law requires that where there is independent evidence that a person has been tortured detention is only justified in “very exceptional circumstances”. That principle is found in a Home Office policy document known as Chapter 55 of the Enforcement Instructions and Guidance (‘EIG’) at section 55.10.
Torture is broadly defined and includes both mental and physical forms of pain inflicted for particular purposes.
The policy is supposed to protect highly vulnerable persons from being held in immigration detention unless this is absolutely necessary. It recognises that detention can have a heavy toll on torture victims (something noted by Mr Justice Burnett in the case of R (EO & Others v SSHD  EWHC 1236 (Admin) at § 59).
For such detainees, detention can feel like re-living past traumas. Where a person’s mental or physical health deteriorates in detention because of this, the situation may actually amount to additional torture (contrary to Article 3 of the European Convention on Human Rights).
So the test for justifying detention of persons protected by section 55.10 is a very high one for good reason. The government must state what the “very exceptional circumstances” are and those circumstances must be extraordinary. It is not enough to simply show a routine risk of absconding or re-offending by pointing to the detainee’s history. That was made clear in EO at § 69.
The meaning of the phrase“very exceptional circumstances” was considered again recently in R (Abdulrahmen Mohammed) v Secretary of State for the Home Department  EWHC 447 (Admin). The politics of this case has already been blogged about by Colin Yeo at freemovement.org.
In Mohammed, the issue was whether a risk of re-offending is enough (without more) to justify detention of a torture survivor. As pointed out in EO and re-iterated in Mohammed, many people who are detained will usually possess poor immigration histories and/or criminal convictions. That is not enough to meet the demanding test of “very exceptional circumstances” (see §§ 13 to 14), which is a more demanding concept.
While Mohammed concerned the sole issue of re-offending, common sense suggests that the same principle should apply where the government relies on the risk of absconding as the only reason for detaining a torture survivor. A very high, rather than routine, risk of absconding may satisfy this test, but what Mohammed suggests is that the test is unlikely to be met solely by reference to a person’s immigration history. The government needs to show a “risk of absconding+“.
If the position were otherwise and detention of torture survivors could be justified solely on the basis of the routine risks and/or poor immigration histories, the protections in section 55.10 would offer no real protection at all to highly vulnerable individuals. Hostile as the current environment is towards refugees and migrants, that cannot be right.
Note: In this post, I refer to ‘torture survivors’ as a short way of describing persons who have some independent evidence of torture.