Why Medical Justice had to challenge Home Office policy on torture survivors

24 November 2016

New Home Office policy increases the risk of vulnerable people, including torture survivors, being detained and harmed. Kris Harris, Research and Policy Worker at Medical Justice, felt they had no choice but to challenge the policy in court.

On 12 September this year, a new Home Office policy on immigration detention came into force.

It was introduced in the face of mounting criticism of the welfare of vulnerable people in detention – including the scathing Shaw review, which found detention is being used too frequently, for too long and that current safeguards are failing to protect the most vulnerable. 

The review showed detention is harmful to those detained, especially for those with pre-existing vulnerabilities.

In response, the Government promised wide-reaching and transformative change in the form of its ‘Adults at Risk’ policy – which promised to ensure fewer vulnerable people were detained for shorter periods of time.

Broken and ineffective

But the first draft caused widespread concern among those – like Medical Justice – who work with vulnerable people in detention.

Firstly, the guidance relied heavily on the very same mechanisms so severely condemned by Shaw and others and already shown to be ineffective. Though it introduces a new gatekeeping team, in charge of making detention decisions across immigration teams, they still only have access to information from the same broken and ineffective systems.

Secondly, the new policy changed the previous broader definition of torture – an act inflicted by any individual or group – to the more restrictive United Nations Convention against Torture definition: an act inflicted by a state actor or with a state actor’s acquiescence.

We fear this new definition is complex and will lead caseworkers and detention centre doctors to apply it in a way that excludes many victims of non-state violence.

Thirdly, as well as requiring detainees to show evidence that they are victims are torture, the guidance requires them to show that they will suffer harm in detention.

Where the previous policy set out clearly that detention of vulnerable people should only happen in very exceptional circumstances, this new guidance seeks to balance the various indicators of risk of harm in detention against the individual’s ‘immigration factors’. 

No choice but to challenge in court

Fearing the proposed policy would in fact lead to more vulnerable people, including torture survivors, being detained for longer periods of time – the exact opposite of its promise – a broad range of campaigners tried to engage with the Home Office through face-to-face meetings and written submissions.

Those efforts went largely unheeded.

Left with a policy that increases the risk of vulnerable torture survivors being detained and harmed, we at Medical Justice felt we had no choice but to challenge the policy change in the courts. Upon granting permission the judge noted that the case raises important issues that need to be definitively determined.

Our challenge is now under way, linked with seven individual cases brought by Bhatt Murphy and Duncan Lewis Solicitors.

At an initial hearing on Monday, Mr Justice Ouseley granted an application made by Duncan Lewis for interim relief – meaning the new definition of torture will now be suspended until a full hearing in March next year.

In the meantime, we hope the Home Office will reconsider, reverse these policy changes which further erode safeguards for torture survivors and institute a process that properly protects vulnerable detainees.