Government admits policy change led to unlawful detention of hundreds of torture victims

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In Medical Justice & Ors v Secretary of State for the Home Department & Anor [2017] EWHC 2461 (Admin), the High Court found that the government’s attempt to limit the definition of ‘torture’ to those who had suffered at the hands of State officials was unlawful, unjustified and unreasonably forced doctors at detention centres to grapple with political issues.

As reported in the Guardian, the government admitted to unlawfully detaining hundreds of claimed victims of torture under its new policy, which was supposed to reduce the number of vulnerable persons held in immigration detention.

If you don’t have time to read the judgment (a hefty 50 pages), here’s a detailed overview.

Background

For many years, the detention of vulnerable persons under immigration powers was decided under a relatively brief policy contained in Chapter 55.10 of the Enforcement Instructions and Guidance (‘EIG’).

Chapter 55.10 provided that certain categories of persons should normally be detained only in “very exceptional circumstances”. The categories included:

• Those suffering from serious mental illness which cannot be satisfactorily managed within detention…
• Those where there is independent evidence that they have been tortured.

When the government tried in 2013 to narrow the definition of ‘torture’ by reference to the definition in Article 1 of the UN Convention Against Torture (‘UNCAT’), they were thwarted by Mr Justice Burnett in R (EO & Ors) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin).

The UNCAT definition of torture requires the involvement of State agents (or their complicity or acquiescence) in the infliction of severe harm for specific purposes.

EO concluded that there was a ‘common understanding’ that the word ‘torture’ meant:

…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind. (para. 82)

In other words, the identity of the perpetrator (be they State actor or a family member) was irrelevant.

Detainees who had suffered severe violence at the hands of criminal gangs, victims of trafficking or forced labour and victims of gender-based violence who could not satisfy the requirements of “UNCAT torture” could nevertheless bring themselves within the more widely defined concept of “EO torture” and potentially qualify for release under Chapter 55.10 of the EIG.

The new policy

On 12 September 2016, the government made sweeping changes to the policies governing the detention of vulnerable adults.

This followed publication of a report by Mr Stephen Shaw CBE entitled: “Review into the Welfare in Detention of Vulnerable Persons”, Cm 9186 (‘the Shaw report’).

It recommended root and branch reform of the detention estate and among other things suggested that the categories of vulnerability should be expanded to include a wider range of persons at particular risk in detention.

After much campaigning by interested organisations, Parliament passed the power in section 59(1) of the Immigration Act 2016 into law. It reads:

59 Guidance on detention of vulnerable persons

(1) The Secretary of State must issue guidance specifying matters to be taken into account by a person to whom the guidance is addressed in determining—

(a) whether a person (“P”) would be particularly vulnerable to harm if P were to be detained or to remain in detention, and

(b) if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention.

But rather than just expanding the list of categories in Chapter 55.10 (as the Shaw report suggested), the legislation spawned 3 new separate but interlinked policy documents:

1. Adults at Risk in Immigration Detention (‘the AAR’): this was statutory guidance laid before Parliament and approved under negative resolution, by virtue of the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016;
2. the Detention Services Order, DSO 9/2016, which dealt with the management of doctor’s reports where there were concerns a person had been a victim of torture (also known as Rule 35 reports);
3. Chapter 55b of the EIG, which provided guidance to caseworkers and other staff on the application of the AAR, (old Chapter 55.10 was also withdrawn).

The main thrust of the changes was to insert “UNCAT torture” as the new definition and thus to require agents of the State to be involved in the harm inflicted (or alternatively to require the involvement of terrorist groups holding territory in instability of civil war, such as Al-Shabaab or Boko Haram, for instance).

While other risk categories were also included (such as victims of FGM), there was no catch-all category for persons who did not meet the requirements of “UNCAT torture”, who did not fall within alternative risk categories but who could qualify for release under the more widely drawn “EO torture” .

As will become clear, in producing this change, the government had omitted to update the Detention Centre Rules which effectively still referred to the wider “EO torture” rather than the narrow “UNCAT torture” definition.

The arguments on judicial review

The Claimants argued that the AAR used an unlawfully restrictive definition of torture that was contrary to the definition in the Detention Centre Rules 2001 and bore no rational relationship to the identification of vulnerable persons in detention, that Chapter 55b was inconsistent with the terms of the AAR and that the policy failed to comply with the public sector equality duty under section 149 of the Equality Act 2010.

The legal issues

The starting point of Mr Justice Ouseley’s discussion of the legal context is the well acknowledged but often ignored principle that policy-making in the area of detention (as with other immigration functions) must be sufficiently clear and transparent in order to allow the persons affected to bring informed challenges against adverse decisions (see paras. 7 to 8).

The Home Office position was that the policy was intended to enhance the protection of persons subject to torture by officials of the State and/or terrorist groups and that all victims of trauma were protected under it.

There had been a steep rise in the number of Rule 35 medical reports following EO, which was both a strain on resources and stretched the definition of torture to considerable lengths. Many of those released following Rule 35 reports were in good health (despite past injuries), would abscond following release and therefore used the Rule 35 procedure to frustrate removal.

The government admitted that it had unlawfully applied the policy to the 7 claimants in this case and that the implementation of the new policy was marred by: ‘errors and misunderstanding’.

There was also some dispute (ultimately left unresolved) over whether the General Comment by the UNCAT committee which identifies that States who acquiesce in the infliction of torture by non-State actors ought to fall within the definition in Article 1 of UNCAT.

The expert evidence

Expert opinion highlighted that requiring doctors to make non-medical judgments about the involvement of the State in any mistreatment was problematic.

The key feature that made victims of serious ill-treatment vulnerable when detained under immigration powers was not the identity of the perpetrator but a sense of helplessness. According to an expert from the Helen Bamber Foundation:

…the simple inability to control or influence the environment in immigration detention has been described by torture victims both to me and to other clinicians, as inducing the state of fear and helplessness they experienced when tortured.

The Court’s conclusions

After a lengthy trawl through the views of expert psychiatrists assembled primarily by the claimants’ lawyers and the observations from various UN organisations, the Court concludes that:

• The government’s argument that the old definition of torture had been impliedly repealed by the issuing of new statutory guidance was rejected. ‘It is not open to the SSHD by issuing policy statements to alter the meaning of a statutory instrument, whether expressly or by necessary implication.’ (para. 126);
• The DSO 9/2016 was unlawful because it advised medical practitioners to apply “UNCAT torture” even though the Detention Centre Rules referred to the old definition (para. 127). The policy scheme was supposed to be a coherent whole and the inconsistency could not be explained away;
• There was further inconsistency between the AAR (statutory guidance) and Chapter 55b (the operational guidance to caseworkers). Although the latter took a wider approach to persons whose experience of torture did not come within “UNCAT torture”, the AAR effectively excluded some of the persons in this category (para 141).
• The AAR failed to fulfil its statutory purpose to identify adults at risk and its exclusion of persons who fall outside of “UNCAT torture” and who do not meet any of the other indicators of risk;
• There is no evidence that a claimed torture victim’s vulnerability to harm in detention is affected by whether or not the perpetrator of violence or severe pain is a State official or not. The attempt to impose a narrow define of torture had no evidence base or rationality behind it (para 153 to 157);
• It is irrational and unlawful to require medical practitioners to make political judgments about the background to the trauma that they are assessing. Such a requirement undermined trust between patient and practitioner (para. 163).
• It was too early to decide the challenge under the Equality Act 2010, which presupposed that the policy was lawful. As and when a new and lawful policy was introduced, that could then be tested against the public sector equality duty.

Towards a new definition of ‘torture’

Interestingly, neither “UNCAT torture” nor the modified definition of “EO torture” were found satisfactory for the purposes of preventing the unnecessary detention of vulnerable adults.

Without spelling out a new definition in this context, the Court suggested that the ingredients should include the infliction of ‘severe pain and suffering… [in] a situation of powerlessness…’. The ‘powerlessness’ depends on the circumstances and may, for example, relate to the identity of the perpetrator or the length and severity of the experience (para. 177 and 181).

It isn’t clear from the judgment whether this new definition was the subject of argument between the parties. It doesn’t read as though much (if any) argument was heard on it.

Summary

It is probable that the government may seek to introduce this modified definition as and when it gets around to altering the policy guidance in this area.

Further guidance seems inevitable given just how badly the government’s policy has weathered this judgment. We may yet see the introduction of a third definition of ‘torture’ incorporating Mr Justice Ouseley’s views on ‘powerlessness’ as a requisite ingredient.

[I previously acted for one of the non-lead claimants challenging the lawfulness of the AAR policy].