The Torture Survivors' Manifesto
Amid the avalanche of sound bites and the acres of newsprint devoted to asylum and immigration in the run up to the General Election, one vital fact was in danger of being overlooked. Many of those seeking asylum in the UK are victims of torture. As such, they deserve sympathy, and require protection.
To draw attention to the many difficulties facing this vulnerable group, the Medical Foundation published The Torture Survivors' Manifesto to coincide with the publication of Labour's five-year asylum plan, and the Conservative Party's election manifesto.
The manifesto calls for the relaxation of a number of asylum restrictions if the claimant has presented a prima facie case of torture. These include releasing torture victims from detention, giving them access to legal representation in all initial asylum decision making processes and subsequent appeals, and a proper assessment of risk prior to the removal of torture survivors to countries where genocide and mass violations of human rights have been perpetrated.
The document also addresses the torture of people held in the War on Terror, and in the conflicts in Iraq and Afghanistan. It calls for an end to US planes using Britain as a staging post when engaged in the rendition of prisoners to countries where torture is used. All candidates and political partieswere asked to support a ban on the use of evidence extracted under torture, with the manifesto also calling for independent observers to have access to all prisoners held by British forces abroad.
The manifesto was compiled by two Medical Foundation lawyers, advocacy officer David Rhys Jones and legal and policy officer (young people) Syd Bolton, with the Medical Foundation's formerhealth and human rights advisor Dr Charlotte Granville-Chapman. Initially addressed to all candidates and parties, it has been amended, and is now addressed to the Government.
Medical Foundation spokesman Andrew Hogg said on publication: "With the asylum regime growing ever tougher for claimants, it is timely to look at the cost in human terms to people who have already suffered so much. It is also an opportunity once again to remind people that many of the techniques used in places such as Guantánamo Bay amount to torture pure and simple, whatever euphemisms might be used to describe them."
The Torture Survivors' Manifesto
A) International justice and redress
We call upon the Government to take positive steps to eliminate torture worldwide AND to ensure that there is:
- NO torture here in the UK or on UK territories *i
- NO use of information extracted under torture, here or abroad *ii
- NO condoning of, or collusion in rendition of prisoners to torture regimes *iii
- Access to legal redress & compensation against torturers and foreign states through the UK courts *iv
- Full, immediate access by independent observers to all prisoners held by British forces abroad *v
B) Protection in the UK for torture survivors
The Government is called upon to ensure that there is:
- Thorough and sensitive investigation of all claims for international protection where torture is alleged *vi
- Medical documentation of all protection claims based on torture where such documentation may make a material difference to the claim *vii Access to legal representation in all initial decision making processes and subsequent appeals *viii
- In-country appeal rights for all persons making prima facie allegations of torture *ix
- An assessment of risk prior to removal for torture survivors to countries where genocide and mass violations of human rights have been perpetrated *x
- No removal against international advice *xi
- No prosecution of torture survivors for "crimes of arrival" *xii
- A certain future for all torture survivors given leave to remain.Temporary status does not provide the necessary conditions to enable them to fully benefit from therapeutic treatments.*xiii
AND to recognise that
- rape is a method of torture, particularly rape in detention *xiv
- children are especially vulnerable to acts of torture & state violence *xv
- children require additional safeguards to ensure their protection *xvi
- all decisions made on a child's behalf should put the child's welfare first *xvii
C) Prevention of ill treatment of all persons in UK immigration detention & control
The Government is called upon to ensure that:
- NO torture survivor is detained and all those identified as such whilst in detention are released
- The detention regime must be designed to ensure, above all, that the mental and physical health of detainees is not further harmed by detention
- Those in authority in places of detention must guard against the abuse of their charges
- An independent medical examination is provided for all persons prior to removal, and after a failed removal *xviii
- there is an independent, confidential and timely complaints process for the investigation of allegations of abuse by any person acting on behalf of the UK immigration authorities *xix
- Abuse of asylum detainees by any employee or agent of the immigration authorities is always treated as behaviour amounting to gross misconduct, warranting referral to the police and and, as a separate employment procedure, suspension pending investigation, and dismissal if the allegations are proven. *xx
D) Health care for torture survivors
The Government is called upon to ensure that:
- Torture survivors have free access to NHS-funded health care (including mental health care) based upon clinical need above all other criteria, for as long as they are in the UK *xxi
- Denial of medical treatment should never be used as a mechanism to deter torture survivors from seeking protection in the UK *xxii
- Torture survivors are not subjected to compulsory screening for TB or HIV before or upon entry into the UK *xxiii
- No torture survivors shall be returned to countries where necessary health and social care services are inaccessible to them. Torture survivors and their families are provided with housing and support which meets their special needs for so long as they remain in the UK.
i)Torture is defined by the 1984 UN Convention Against Torture as meaning "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 is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." In today's world euphemisms such as "non-physical coercion" are being used to avoid the accusation of torture. Torture methods are being reinvented and renamed to emphasise the psychological pressure used to obtain information rather than immediate physical suffering. The Medical Foundation sees psychological harm as no less damaging than physical scarring. Cruel, inhuman and degrading treatment is no less damaging to the civilised world than torture.
ii) In early April the House of Commons foreign affairs committee (FAC) said it was "surprising and unsettling" that ministers had twice refused to tell members whether they received or acted on information extracted under torture, and called on the government to "give straight answers". Foreign Secretary Jack Straw, responding to the FAC report, said he wanted to "positively reject this suggestion that British policy in any way condones or encourages torture" but he again refused to reveal whether intelligence procured by torture had been used. Instead he reiterated his previously-stated position that Britain could not ignore intelligence obtained by other states by means of torture if that information could be used to save lives by preventing a terror attack. This position gives the green light to states to continue to torture while denying Britain any opportunity of maintaining the moral high ground.
iii) The Government has refused to clarify whether there has been any British role in the US practice of flying terrorist suspects, without any legal process, for interrogation to third countries - some of which are known to use torture. The UK is said to have been a major staging post for US jets carrying out such renditions.
iv) "Many people think that reparation for torture means the right to financial compensation. However, it can be much more than that. Reparation for torture can include many different aspects such as: Medical care and treatment (both physical and psychological) to help torture survivors recover their health and well being; Truth and justice, such as an official apology and acceptance of responsibility for what happened, punishment of those who inflicted the torture, recognition of the facts, and remembrance of those who suffered; Return of rights and entitements which were lost in conjunction with the torture, such as pension and employment rights, rights of residency, or return of personal belongings; Guarantees that the violation will not be repeated, such as imposing severe punishment on perpetrators in order to deter future violations by the same individual or others, as well as changing the laws that failed to protect victims from torture, and reforming the practices of public institutions (such as the police, and military) to ensure that torture will not be tolerated in future; and Compensation for the pain and suffering sustained and for losses and expenses incurred." The Torture Survivors Handbook, Medical Foundation and REDRESS, 2004
v) The Medical Foundation calls for the European Committee for the Prevention of Torture to be given access to detainees held by British forces abroad, particularly those in Iraq. The Committee upholds the enforcement of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT), with spot checks on places of detention among Council of Europe members. The United Kingdom has entered a declaration in respect of the territorial application of the ECPT, with the result that at present, committee representatives may not have access to overseas detention facilities administered by the UK. Only the UK and The Netherlands, among the 45 Member States of the Council of Europe, have made such declarations.
On 18 December 2002, the UN General Assembly adopted the Optional Protocol to the UN Convention against Torture (OPCAT). The aim of the OPCAT is to prevent torture and other forms of ill-treatment by establishing a system of regular visits to places of detention carried out by independent international and national bodies. During UNCAT hearings in Geneva this year the UK delegation stressed that "the UK believes it is important that the Optional Protocol enters into force early. We are concerned that only five of the 20 ratifications needed for entry into force have taken place. For that reason, on 26 June 2004 the Foreign Secretary launched a world-wide lobbying campaign encouraging other countries to join the UK in signing and ratifying it." However, the delegation stated later in the proceedings (in regard to Afghanistan and Iraq) that, "those parts of the [Torture] Convention which are applicable only in respect of territory under the jurisdiction of the state party cannot be applicable in relation to actions of the UK in Afghanistan and Iraq." Thus the delegation refused to accept, inter alia, that the transfer of detainees to Iraq and Afghanistan authorities "from UK physical custody" created legal rights and responsibilities under Article 3 of the European Convention on Human Rights "because the individuals in question are subject to the jurisdiction of either Iraq or Afghanistan."
vi) i.e appropriately skilled and trained Home Office decision-makers, properly applying accepted principles of asylum and human rights law, including the correct application of credibility tests, standards of proof, expert evidence etc; within a non-threatening and conducive interview setting to enable torture survivors to feel able to recount their experiences; and within a timeframe which is not accelerated to the extent that the ability of the torture survivor to state their claim is compromised at the expense of administrative targets. For example: UNHCR have prepared a Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. The Handbook states: "[Par 198] A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case. [Par 199] While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case."
vii) Documenting torture is not necessary in all cases. Circumstances will frequently arise where the decision-maker is able to conclude, on the basis of testimony alone, that an individual may be treated as a torture survivor for the purposes of determining their asylum claim. However, where a negative decision might be forthcoming but for the documentation of torture then documentation must be facilitated.
viii) Under changes to the legal aid regime in 2004 asylum seekers no longer have an automatic right to representation at interview paid for out of public funds. Such representation will only be paid for where the applicant is suffering from a "recognised and verifiable mental incapacity". This sets the threshold much to high. Torture survivors may well require representation at interview in order to ensure that aspects of their asylum claim are fully disclosed without the individual suffering significant incapacity. Representation at appeal is subject to a merits test which is often taken to require a "better than 50% chance of success." Torture survivors should not have such a strict test applied to them. The standard or proof in asylum claims is set very low but the burden remains on the applicant. There is a real risk that a torture survivor may not be capable of fully disclosing the circumstances of her torture in open court without representation.
ix) Under Schedule 3 parts 1 – 6 of the Asylum and Immigration (Treatment of Claimants Etc.) Act 2004 ( AI( ToC etc.) Act 2004 ) there is widely expanded use of non-suspensive appeals procedures – that is, appeal rights only possible after leaving the UK – by the use of certification to deem cases clearly unfounded from certain listed countries and situations. The Medical Foundation reminds all parties that the power of certification under these provisions should not be used against any person who has made a prima facie allegation of torture, irrespective of the view of the Secretary of State that any particular country is presumed safe.
In the recent High Court case of Husan v Secretary of State for the Home Department EWHC189(Admin ) Wilson J decided that the inclusion of Bangladesh on the safe countries list was unlawful. At paragraph 38 (c) he said "In the section on torture there was inclusion of a reference to the report by Amnesty International for 2003 to the effect that torture remained widespread." He further concluded at paragraph 60 that "no rational decision-maker could have been satisfied that there was in general in Bangladesh no serious risk of persecution of persons entitled to reside there or that removal of such persons thither would not in general contravene the UK's obligations under the Human Rights Convention. The objective material drove and drives only one rational conclusion; and it is to the contrary."
x) The Medical Foundation is aware that cases may be concluded under the 1951 Refugee Convention and the European Convention on Human Rights allowing that no breach of the conventions would take place by removing an individual. However, the patients of the Medical Foundation are from time to time faced with removal from the UK in circumstances where the effects of their torture continue. In a recent case in the House of Lords the Home Office stated that, "The Secretary of State accepts that there will be cases where an individual may be particularly vulnerable by reason of the continuing physical or psychological effects of persecution he has suffered in the past. Such probems may render him less able to cope with difficult conditions in his country of origin. It is open to such an applicant to apply for discretionary leave to remain in the United Kingdom on compassionate grounds." (In re B (FC) (Appellant) (2002) Regina v. Special Adjudicator (Respondent) ex parte Hoxha (FC) (Appellant)  UKHL 19) The Medical Foundation calls upon the Home Office to consider such vulnerability in every case where torture as been accepted as a real risk and to institute a "pre removal" check to ensure that any such compassionate grounds are always taken into account
xi) The United Nations High Commissioner for Refugees (UNHCR) the United Nations Childrens Fund (UNICEF), the United Nations Mission in Kosovo (UNMIK), Amnesty International and other international and non governmental organisations provide regular reports and position statements on specific conditions and safety in countries of origin. Recent papers include the March 2005 UNHCR position paper on the Continued International Protection Needs of Individuals from Kosovo which states, inter alia, " Individuals in a particularly vulnerable situation may have special needs that should be taken into account in the context of return and particularly bearing in mind the inadequate standards of health care and social welfare institutions." A non-exhausive list of persons falling under this category included: "Persons with severe and chronic mental illness (including post-traumatic stress disorders) whose condition requires specialised medical intervention of a type not yet available or readily available in Kosovo." A January 2005 UNMIK (office of returns and communities) Note on the Availability of Adequate Medical Treatment for PTSD in Kosovo. The Medical Foundation also provides country specific reports (see www.freedomfromtorture.org for list of publications). We reiterate that country information and guidance provided to Immigration and Nationality Directorate (IND) caseworkers should be balanced and objective, and not ignored, used selectively or taken out of context.
xii) Section 2 of the AI(ToC etc.) Act 2004 introduced new offences of arriving in the UK without adequate documentation. These suppement the existing wide range of immigration offences used to prosecute "illegal entrants". Imposition of penalties on refugees and asylum seekers is prohibited by Article 31 of the Refugee Convention. It's estimated that around 200 such prosecutions have taken place since September 2004. The risk that torture survivors may be subjected to criminal penalty for seeking protection is increasing. Under Section 16 of AI(ToC etc.) Act 2004 airlines can now be required to copy travel documents prior to a person leaving their country of origin. The deterrence purpose of these combined measures actively discourages torture survivors from seeking safe haven in the UK and puts them at increased risk of harm during transit. Furthermore, torture survivors may well be less able to exercise "free will" when under the care or control of a human trafficker/smuggler.
xiii) The Government's 5 year strategy "Controlling Our Borders" Command Paper 6472 of February 2005 proposed the introduction of temporary leave to remain instead of the current policy of granting indefinite leave to remain to all recognised refugees.
The creation of a prolonged period of uncertainty even after recognition as refugees will profoundly affect the ability of torture survivors to fully engage with and benefit from therapeutic treatments, and to integrate into UK society.
We do not say that all torture survivors must always be granted indefinite leave to remain but the decision determining the period of leave given to a torture survivor engaged in a therapeutic relationship is as much a clinical decision as administrative. The UNHCR Handbook (Paragraph 136) makes clear that "It is frequently recognised that a person who – or whose family – suffered under atrocious forms of persecution should not be expected to repatriate. Even though there is a change of régime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee."
xiv) "In the past, rape has frequently eluded the classification of torture because it has been deemed of insufficient severity to breach the "pain and suffering" threshold required, or, in the alternative, that it was committed by a non-state agent, including a state official acting in his personal capacity and driven purely by lust, with the result that the responsibility for the act could not be ascribed to the State. The various human rights and humanitarian treaty bodies, together with international and regional courts, now recognise that the act itself is sufficiently serious to reach the pain and suffering threshold required, while caselaw indicates that a State will retain responsibility for the actions of "rogue" officials. As a result, a state official who perpetrates an act of rape is far less likely to be deemed acting in a purely personal capacity." "Rape as a Method of Torture" Ed. Dr Michael Peel pub. 2004. Medical Foundation for the Care of Victims of Torture.
xv) The World Organisation Against Torture (OMCT) international conference report on "Children, torture and other forms of violence: facing the facts, forging the future", Tampere Finland Dec 2001 (www.omct.org) concluded that (p28) "children are more vulnerable to the effects of violence than adults…the general international definition of torture must be interpreted in a way which will effectively protect their rights…(p29) the interpretation should be aimed at a child-oriented meaning of the expression "severe pain or suffering, whether physical or mental"". The Medical Foundation concurs and urges all parties to commit to (a) a child-oriented assessment of torture and (b) Removal of the UK's reservation against the 1989 UN Convention on the Rights of the Child (CRC). The reservation states that: "The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time."Legal opinion for Save The Children by Nicholas Blake Qc Matrix Chambers, Sandhya Drew Tooks Court Chambers 30th November 2001 concluded (para 4iii) "The best interests principle is already part of domestic law through the Children Act 1989, the European Convention on Human Rights (ECHR) and the express recognition of the principle in the European Charter of Fundamental Rights. The application of the best interests principle under these instruments does not conflict with the operation of a firm immigration law and should not do so under the CRC but the maintenance of the Reservation to the CRC gives rise to the wrong implication that the best interests principle may be excluded wholesale from areas of executive discretion concerned with immigration, asylum and nationality.
xviii) In 2004 the Medical Foundation reported a number of cases in which immigration detainees suffered injuries as a result of excessive force being used during attempts to remove them from the UK. The MF report, Harm on Removal, was followed by a BBC TV undercover investigation into abuse of asylum detainees which led to 15 staff at an asylum seeker detention centre being suspended from frontline duties amid allegations of racism and violence now being investigated by the Prisons Ombudsman.
MF doctors examined 14 cases over a 15-week period in which asylum seekers whose claims had been rejected suffered injuries as a result of force used during attempts to remove them. In 12 of the cases force used was believed to be excessive or gratuitous. In 11 cases, handcuffs were used inappropriately, with several of the detainees exhibiting signs and symptoms of nerve damage. Medical evidence supported accounts by detainees of being held in restrictive positions with chest and/or neck compression, as well as suffering punches directed at the head and face, and kicks to the abdomen, chest and face. Injuries sustained included nerve damage, possible fracture or soft tissue injury to the base of the thumb, facial bone tenderness, tenderness over the larynx, and laceration of the scalp. Symptoms complained of included loss of consciousness, bleeding from nose and mouth, and difficulty passing urine. Apart from physical abuse, disturbing verbal abuse including that of a racist nature, was also alleged. It is striking that all 14 referrals to the MF were black, coming from either Africa or Jamaica.
xxi) In August 2004, responding to the Department of Health Consultation: Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services, the Medical Foundation expressed its concern that these proposals would, if impemented, give rise to arbitrary decisions with some patients being denied the free care to which they ought to be entitled; to discrimination on the grounds of race and nationality; and to further hardship and suffering for an already vulnerable group. The Medical Foundation pointed out the lack of any reliable evidence to suggest that those who come to the UK to seek asylum are so-called "health tourists" and recommended that the exclusion of failed asylum seekers from health care be given careful reconsideration.
xxii) Torture survivors who arrive in the UK seeking protection are not "health tourists". Torture survivors should have access to health and social care interventions to assist them in the rehabilitative process. Torture survivors already face numerous barriers when accessing health care, and this inequality in access must not be compounded by governmental policy.
xxiii)‘Migration, public health and compulsory screening for TB and HIV' – a paper by Dr Richard Coker, public health consultant at the London School of Hygiene and Tropical Medicine, examined the public health, economic, legal and ethical arguments surrounding compulsory pre-entry or on-entry screening for TB and HIV. It concluded that compulsory screening would be ineffective, costly and actually have a negative impact on public health. Health screening was introduced in the Quota Refugee Resettement Programme, and the Home Office policy was to refuse resettement to anyone with HIV/AIDS or multi-drug resistant TB.
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