Around 26,000 people were held within the immigration detention estate in the UK 2010. The majority of these people sought asylum at some stage in the process. Within this population exist survivors of torture.
It is estimated that between 5 and 30% of asylum seekers have suffered torture. Whilst some of these will bear scars of the abuse they underwent, others who may have been raped or electrocuted, for example, will rarely bear physical signs. All, however, share the common injustice of being detained for administrative immigration purposes. The UK Border Agency (UKBA) policy is that where there is independent evidence of torture, an individual will only be detained in very exceptional circumstances.
The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force in 1987. Article 1 (1) provides a definition of torture:
“... 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.”
Torture is prohibited under international law but remains widespread across the globe. A systematic and deliberate act of inflicting pain on others, the consequences of torture often involve long-term mental and physical pain.
In the experience of Medical Justice, victims of torture are routinely detained. This is particularly problematic because this population often suffers both the mental and physical effects of their torture for many years afterwards. This, coupled with the trauma of being detained for an indefinite time period, the limbo of their legal status, the specific medical needs of this vulnerable population, language difficulties and isolation from a community can all be highly damaging and/or injurious to one’s health.
Immigration detainees have particular health needs, many of whom are afflicted with mental health problems. There is a growing body of evidence that notes that these problems can be associated with their experiences pre-flight (prior to coming to the UK); exacerbated by immigration detention; or indeed caused by immigration detention itself.
The Detention Centre Rules 2001, set up by statute, outline the special regulations for the management of Immigration Removal Centres (IRCs). Rule 35 of the Detention Centres Rules 2001 is designed to safeguard vulnerable individuals.
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.
For vulnerable individuals and victims of torture, Rule 35 is the primary safeguard to facilitate their release from detention. Once a report is generated under Rule 35, the UKBA caseowner must review the individual’s detention in light of the findings. Whilst being a victim of torture does not necessarily mean automatic release, where there is independent evidence, individuals should be released absent exceptional circumstances. Moreover, the information contained in Rule 35 reports should be ‘capable of constituting independent evidence’.
However, as this report will show, victims of torture are routinely detained and Rule 35 fails to secure their release. Even UKBA itself in its recent audit showed its failure to implement the rule and follow appropriate procedures. Her Majesty’s Inspectorate of Prisons (HMIP) and other official bodies have consistently reported on UKBA’s failure to follow its statutory duty with regards to Rule 35.
This report will chart the history of UKBA’s failure to follow its own policy regarding the detention of victims of torture. It will illustrate the disregard that UKBA shows not only to external criticism but also to the vulnerable individuals themselves, many of whom report of the “second torture” they have had to face in immigration detention since coming to this country to seek sanctuary.
[Excerpt from Introduction, citations removed]
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