Asylum seeking torture survivors win legal challenge against detention rules

Mr Christopher Buttler and Ms Ayesha Christie (instructed by Duncan Lewis) for the 4th – 8th Claimants;

Ms Nathalie Lieven QC and Ms Sarah Hannett (instructed by the solicitor to the EHRC) for the Intervener;

Mr James Strachan QC and Mr Rory Dunlop (instructed by the Treasury Solicitor) for the Defendant.

Survivors of torture seeking asylum in the United Kingdom have successfully challenged UK Government rules determining who should be detained while their claims are being resolved.

A judge at the High Court in London upheld an argument by seven individual claimants and the charity Medical Justice that the Secretary of State for the Home Department’s definition of torture to acts carried out by official state agents was “too narrow”, which resulted in vulnerable applicants being detained.

Mr Justice Ouseley heard that at the heart of the judicial review claims was the contention that the SSHD had issued “unlawful” statutory guidance and policies – albeit for the lawful purpose of preventing those who are more vulnerable to harm in immigration detention from entering immigration detention or for removing them from it, unless there were sufficiently strong countervailing reasons.

The unlawfulness was said to arise from the way in which victims of torture were defined, through the adoption, with a variation, of the definition of torture to be found in the United Nations Convention against Torture (UNCAT).

This had the effect, it was said, of excluding those who are victims of torture by non-state actors, from those whose circumstances indicate vulnerability to harm in detention.

The SSHD’s response was essentially that the statutory guidance and policies had been “misunderstood”.

The statutory guidance at issue was the “Adults at Risk in Immigration Detention” (AARSG), issued under section 59 of the Immigration Act 2016, which came into force in September 2016.

The policies at issue were the Detention Centre Rules on the regulation and management of removal centres, in particular R35 relating to medical reports on those who are in detention, and Chapter 55b of the Enforcement Instructions and Guidance, (EIG 55b) for Home Office staff including case workers on “Adults at risk in immigration detention”.

R34 requires every detained person to have a physical and mental examination within 24 hours of admission to the detention centre, while R35 states that a medical practitioner must report to the manager on the case of any detained person who may have been the victim of torture or whose health is likely to be injuriously affected by their detention – a copy of which must be sent to the Home Secretary.

The definition of torture in this respect had previously been considered in EO and Others v SSHD EWHC 1236 (Admin), in which it was held that the meaning was not confined to acts by state agents, but the Home Office updated its guidance and policy and under the revised definition torture inflicted by non-state actors was not to be considered torture for the purposes of the medical examinations.

The claimants – who included victims of sexual and physical abuse and forced prostitution, trafficking, homophobic attacks, and a child kidnapped by the Taliban who was tortured before escaping his captors – backed by Medical Justice, contended that the decision to change the definition of torture was “not rational, lacked any evidential basis, and flew in the face” of what was decided in EO.

The claimants argued that the definition of “torture” used in the AARSG was “unlawfully restrictive”, was contrary to the definition of “torture” in the Detention Centre Rules and R35 in particular, and had “no rational justification” in relation to the identification of those particularly vulnerable to harm in immigration detention; that the EIG 55b caseworker guidance was “inconsistent” with the AARSG; and that the public sector equality duty in section 149 of the Equality Act 2010 (EA) had not been complied with.

The SSHD had conceded that the decisions to detain the claimants had been unlawful, but maintained that they would still have been detained pursuant to lawful decisions made under the new policies.

Handing down the judgment, Mr Justice Ouseley said: “Aspects of the AARSG in relation to the definition of ‘torture’ are unlawful: the correct interpretation of ‘torture’ in R35 was ignored; the list of indicators was exclusive; this conflicted with the purpose of s59, and lacked a rational or evidence base.

“The UNCAT definition of ‘torture’ intended for use in the AARSG and R35 would require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach. All this meant that EA issues were not considered on the proper basis.”

In November 2016 the judge had ordered interim relief to the effect that the EO definition of torture should be substituted for the UNCAT definition.

It is understood that the Government does not intend to appeal against the ruling, which could affect hundreds of cases.