A man using crutches told the inspectors to the detention centre where he was held that he had been raped, shot and tortured in his home country and continued to experience both physical pain and stress. He said that detention “makes it worse; you can’t do anything. If you’re outside you can be taken to a hospital and get better treatment. Here you’re told ‘you’ll be okay’ and just given painkillers”. But detention reviews made no mention of his mobility issues. (Health issues 4.25)

A joint thematic review by HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration has been published today considering the effectiveness and impact of immigration detention casework.

The report raises serious concerns over the UKBA's treatment of torture survivors and victims of trafficking in immigration detention; people who should never have been detained in the first place, or who should have been released as soon as they were identified, but languished in detention and almost certainly suffered harm as a result.

The report is damning of very poor practice at UKBA, describing medical reports on torture survivors as "often perfunctory... contain no objective assessment", and that replies to such reports are "often cursory and dismissive". This is shameful, but does not say anything that we at the Helen Bamber Foundation have not been aware of (and campaigning about) for the last 8 or 10 years.

We call upon the Home Office to implement the reports recommendations immediately and in full.

Indeed, some of the most important recommendations do no more than urge UKBA to follow rules that already exist. The report recommends that the UKBA actually follow its own policy by only detaining torture survivors and victims of trafficking in exceptional circumstances and, when it does so, this should be clearly documented on file and explained to the detainee. (Main recommendations 1.17.) This documentation often begins with a report prepared by a doctor in the health care team of the detention centre.

These reports are prepared under rule 35 of the Detention Centre Rules and relate to special illnesses and conditions including torture claims. Rule 35 states that medical practitioners should report to centre managers “on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention… any detained person he suspects of having suicidal intentions … any detained person who he is concerned may have been the victim of torture … [and] pay special attention to any detained person whose mental condition appears to require it”.

Although rule 35 does not provide for a detainee’s release, it places an obligation on the centre’s health care team to report concerns to UKBA. This then requires the responsible case owner to consider “whether continued detention is appropriate”. The case owner is required to respond using a pro forma, copies of which are sent back to the Immigration Removal Centre (IRC) and the detainee’s legal representative. Where there is independent evidence that they have been tortured, detainees should normally only be detained in very exceptional circumstances (chapter 55.10 of the UKBA Enforcement Instruction and Guidance, ‘Persons considered unsuitable for detention’).

Inspectors found little evidence of the effectiveness of the rule, which is supposed to provide a safeguard for vulnerable detainees. In the sample for the report, nine Rule 35 applications were submitted, but none led to release. (Rule 35 and protection of detainees who are unfit to detain 4.29). The report criticises UKBA for failing to note what "exceptional circumstances" might permit detention in these cases.  (Reviewing Detention 1.9)

In February 2011 UKBA carried out an audit of rule 35 cases. This promised significant changes to the rule 35 process. It is clear from the inspectors’ report that any changes introduced have been completely ineffective. 

Similar concerns were raised over victims of trafficking. (The decision to detain 1.7) Rule 35 is silent on the subject of victims of trafficking and there is currently no administrative mechanism for detention centre doctors to report their concerns about such persons to UKBA. The case of Mr L highlights the issues: a competent authority (a UKBA case worker specially trained to identify, protect and support victims of trafficking) confirmed that he was a victim of trafficking but no mention was made in the initial detention minute or subsequent detention reviews that Mr L was a trafficking victim, or what exceptional circumstances justified his detention.

Five detainees told inspectors that they had post-traumatic stress disorder (PTSD), and others mentioned experiences of torture and symptoms that might indicate PTSD, but their detention reviews did not adequately consider such health problems. The report found that the Rule 35 process did not provide the necessary safeguards for vulnerable detainees.  (Reviewing detention 4.1  Mental Health. Post-traumatic stress disorder 4.27)

In another case study, Mr TM had been found by an immigration judge to be a torture survivor: “The marks on his body do suggest that he has suffered physically and those marks do therefore point to past persecution”. The allegation of torture was raised in a Rule 35 report but UKBA did not release him and the response to the Rule 35 report failed to make reference to the immigration judge’s findings or explain what the exceptional circumstances were that justified detention. 

HM Inspectorate of Prison inspection reports routinely review a sample of Rule 35 reports and case owners’ responses and Mr TM's case illustrates a common theme; that Rule 35 reports are often perfunctory and contain no objective assessment of the illness, condition or alleged torture. The replies are often cursory and dismissive and, as in this case, it is extremely rare for a Rule 35 report to lead to release. (4.30)

Disturbingly, of the nine cases reviewed by inspectors where a Rule 35 report had been submitted, eight had not had a new entry created in the UKBA database that detailed the Rule 35 application, its basis or whether the person had been released or continued to be detained. While a separate entry had been created in the remaining case, it had been done incorrectly, not completed as the instructions required and had not been ‘closed’ to record whether or not detention had been maintained. (4.31)

This thematic review indicates that lessons have not been learnt and action has been delayed. One recommendation of the inspectors' report is the introduction of degrees of independent oversight. Certainly something more than a themed report every few years is urgently required.

The effectiveness and impact of immigration detention casework. A joint thematic review by HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration, is published today, 12 December 2012

Special illnesses and conditions (including torture claims)

35.—(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.