New Home Office guidance on the detention of vulnerable adults comes into force today. [1] Read it here.

It follows the damning Shaw Report into the welfare of vulnerable people in
detention and comes at a time when the UNHCR has launched a new global strategy to end the detention of asylum seekers (with the UK as one of 12 target countries).

Meanwhile, in August, lawyers suffered a setback in a legal challenge against the UK’s Detained Asylum Casework process (a slower substitute for the unlawful Detained Fast-Track process) when the Court of appeal refused permission to appeal against the High Court’s dismissal of most of the issues being raised.

The direction of travel is clear: the government is starting to respond to rising anxiety over the routine use of immigration detention in all cases.

The new policy guidance states:

The intention is that the guidance will, in conjunction with other
reforms referred to in the Government‟s response, lead to a reduction in the
number of vulnerable people detained and a reduction in the duration of
detention before removal. It aims to introduce a more holistic approach to the
consideration of individual circumstances, ensuring that genuine cases of
vulnerability are consistently identified, in order to ensure that vulnerable
people are not detained inappropriately. The guidance aims to strike the right
balance between protecting the vulnerable and ensuring the maintenance of
legitimate immigration control. (page 4)

…the intention is that fewer people with a confirmed vulnerability will be
detained in fewer instances and that, where detention becomes
necessary, it will be for the shortest period necessary (page 5)

The definition of an adult ‘at risk’ is found at section 7 (page 6) but is not exhaustive and is supplemented by a longer list of ‘risk indicators’. Those indicators include trans or intersex persons (although, inexplicably, lesbian, gay and bisexual persons are not on the list despite being identified in the Shaw report as being potential risk categories at pages 47 and 267).

However, the Home Office guidance is aware of its own limits and quite rightly acknowledges the need for flexibility:

12. It cannot be ruled out that there may be other, unforeseen, conditions that
may render an individual particularly vulnerable to harm if they are placed in
detention or remain in detention. 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.

Persons who are ‘at risk’ should be detained only if certain immigration factors (listed at section 14) outweigh the risk factors so as to rebut the presumption in favour of release.

Helpfully, the Secretary of State must consider alternative measures to detention and all reasonable voluntary return options before detaining ‘at risk’ persons (sections 16 and 17). Any failure to take these factors into consideration could well form the basis of a successful challenge to an individual’s detention.

[UPDATE: 12:39pm The Guardian has published a letter from leading NGOs critical of the fact that:

The policy increases the burden of evidence on vulnerable people and balances vulnerability against a wider range of other factors.

They are calling for a review before the policy, which was rushed through with little effective Parliamentary scrutiny, is implemented.

They note that the new policy refers at page 7, footnote 3 to an outdated and overly restrictive definition of ‘torture’.

The footnote appears to be an unfortunate error.

The Home Office’s other policies on detention (Chapter 55) and victims of torture (Detention Rule 35 Process Guidance) do not share this defect, nor does the binding case law in R (EO & Ors) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) at paragraphs 81 to 82.

Perhaps the Home Office will re-consider the wording of the new policy and make some amendments?]

[UPDATE: 6:19pm Over the course of today it has become clear that the previous policy framework contained in Chapter 55 and the Detention Rule 35 Process Guidance among other places has been replaced wholesale by the new policy on adults at risk. The email update arrived shortly after 2pm. That is a rather drastic step which merits a more detailed look at the further changes made to the entire policy framework – to follow.]

[1] See the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016. The Guidance was drafted under the power in section 59(1) of the Immigration Act 2016.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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