‘Chronically dysfunctional’ UKBA process leaves survivors at risk of wrongful detention

The risk that torture survivors face of being wrongly held in administrative detention in the UK was exposed yet again last week, as HM Chief Inspector of Prisons became the second inspectorate in as many months to find significant failings with UK Border Agency detention practices.

As part of a follow-up unannounced inspection of Harmondsworth immigration removal centre, HM Chief Inspector of Prisons, Nick Hardwick, considered the effectiveness of 'Rule 35' medical reports – a safeguard that when properly employed should ensure that torture survivors and other vulnerable people are identified and released from detention, except in 'very exceptional circumstances'.

In reality, however, the Chief Inspector found that these reports 'were of poor quality, often providing no clinical judgement'. He was also forced to repeat recommendations that were made in January 2010, after finding this time that the UKBA had still failed to ensure that all health services staff at Harmondsworth were trained in recognising and dealing with torture and its consequences, as well as a similar failure to ensure that Rule 35 reports clearly identified whether injuries had likely resulted from torture.

On another previous recommendation, which stated that 'where there is medical evidence of previous torture or that a detainee's health is likely to be injuriously affected by detention, the Detention Centre Rule 35 process should be followed' (or in other words that the UKBA should follow its own published policy) the Chief Inspector found that worryingly this had only been 'partially achieved' by the Agency.

Dr Juliet Cohen, Freedom from Torture's Head of Doctors, said:

The Chief Inspector's findings on the failures within the Rule 35 process are very worrying, although sadly not surprising. We have been consistently raising concerns with the Border Agency that it has not done enough to rectify the problems with poor quality reports and bad decision making by case owners. We remain deeply concerned about the impact on individuals – we have worked with many survivors who have been re-traumatised by their detention experiences in the UK. These people should never have been detained. This report shows that the Border Agency is still failing to take responsibility for the proper implementation of its own procedures and failing to safeguard the health of those it detains.

"Freedom from Torture has previously called on the Home Affairs Committee to urgently open an inquiry into unlawful detention. The Chief Inspector of Prisons' findings further underline the need for the issue to be addressed as part of the Committee's long-awaited asylum inquiry."

The report comes less than two months after the Independent Chief Inspector of the UKBA, John Vine, made a series of recommendations to the Agency after he found there is currently "too great a risk" that survivors of torture are being placed – again contrary to the UKBA's own policy – in the Detained Fast Track (DFT) system whilst their asylum applications are considered.

Speaking at the time, Kolbassia, a former detainee and now co-ordinator of Survivors Speak OUT – a network of former Freedom from Torture clients – explained the impact that immigration detention can have on a survivor of torture:

For people who have survived torture being put in immigration detention is like reinforcing that our torture was somehow legitimate. We have done absolutely nothing wrong and for those of us lucky enough to escape to a country known to respect human rights we start to hope that we are now safe. But being in detention brings back the feelings of isolation and paranoia and you cannot sleep for the fear you might be tortured again. It is like a mental torture."

In response to on-going concern over the failings of the Rule 35 process from Freedom from Torture and other NGOs, the UKBA finally published the results of a much-delayed audit in March 2011, which completely failed to deliver on its commitment to establish the extent to which the Agency is complying with the policy.

Freedom from Torture CEO, Keith Best, said:

It has now been over 12 months since the Agency published – more than a year overdue – the results of an internal audit of the Rule 35 process. This woefully inadequate report revealed that in 91 per cent of cases where Rule 35 forms were filed by medical practitioners the individuals were not released – but staggeringly the audit offered no explanation as to why these decisions to continue detention were taken.

"This latest report by the Chief Inspector of Prisons supports what doctors at Freedom from Torture have repeatedly found and sheds further light on why the UKBA may be so reluctant to explain its decision-making process – namely that Rule 35 reports and subsequent responses to detainees 'were often insufficient or formulaic, and gave limited assurance that the needs of individuals had been fully considered.'"

In August last year it was revealed that the Home Office paid more than £11 million compensation in 2010 to people held unlawfully in immigration removal centres – including cases of torture survivors and other vulnerable individuals.

Keith Best added:

We have stated it frequently and the fact remains that the Rule 35 process is chronically dysfunctional and there is no doubt it continues to contribute to the unlawful detention of many vulnerable people."

Next month the charity Medical Justice will launch 'The Second Torture: The Immigration Detention of Torture Survivors' – a report which is expected to contain further damning evidence of this broken system.