Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2024

Motion to Take Note

Moved by

That the Grand Committee takes note of the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2024, laid before the House on 30 April (SI 2024/573).

My Lords, these regulations were introduced by the previous Government, so a take-note Motion seemed more appropriate than a regret Motion as there was no time to debate them before the election. I am very grateful to my noble friend the Minister for meeting me to discuss them when he had hardly had time to breathe in his new role. My understanding is that the Government will look at them again as part of a wider review of detention matters, but I thought it important that we debate them now to ensure that noble Lords’ concerns are adequately addressed in the review.

Before I turn to the regulations, we would all find it helpful, I am sure, if the Minister could say more about the review when he comes to respond. In particular, what will it cover, what will be the timescale, will expert organisations be consulted and will both Houses be able to debate the outcome? This would also be helpful to the organisations that provided a joint briefing on the regulations—in particular, Medical Justice, to which I am grateful for its help. Here I should also declare my interest as a RAMP associate.

In effect, the regulations reduce the protection provided by statutory guidance to adults at risk in detention, which could increase the risk of the kinds of human rights violations uncovered in the Brook House inquiry. There are two main concerns. The first is the deletion of the key principle, introduced in 2016, that underlines the intention that fewer people with a confirmed vulnerability will be detained in fewer instances and that, where detention becomes necessary, it will be for the shortest period necessary. Of course, this concerns the wider question of the role of detention, which I assume will inform the more general review.

The second concern is about the reinstatement of the Home Office’s power to seek a second opinion from a contracted doctor on detained individuals who have already received an independent medical assessment that documents the impact and risks to their health of their continued detention. The second-opinion policy was in place from June 2022 to January 2024, when it was deemed unlawful by the High Court following a judicial review brought by Medical Justice.

Three main criticisms have been made of the policy. First, it introduces an additional delay, which could result in an unnecessary prolongation of the period of detention. Secondly, it exposes an already vulnerable person to the risk of retraumatisation. This was emphasised in a witness statement to the High Court from a clinical adviser at Medical Justice. Citing the Royal College of Psychiatrists’ general concern about how detention might trigger reminders of an original trauma, she warned of the dangers to mental health of a reassessment requiring a detainee to relive their experiences yet again.

Thirdly, the policy could have a detrimental effect on the quality of decision-making. Indeed, the UN Istanbul protocol counsels against downgrading the findings from external clinical assessments. There are good reasons why a detained person might be more willing to open up to an independent medical assessor than to one contracted by the Home Office, who might not be trusted. How are Home Office caseworkers, who lack medical knowledge, supposed to decide between any differences that there may be between an external assessment and an internal one? Adopting the lowest common denominator, where both assessors agree, is no answer. If the Home Office has concerns about any particular clinician, should it not take them up with the appropriate regulatory body, as argued in the witness statement to the High Court?

My Lords, I warn the Minister that during the previous Session the noble Baroness, Lady Lister, gained a reputation as a terrier on these issues. Actually, a number of us were badged as terriers, and she was the leader of the pack. She was very energetic in her critiques, particularly and quite successfully on the detention of pregnant women.

It is depressing to have to have this debate. When the Brook House scandal surfaced, three of us, cross-party, met the relevant Home Office Minister. I asked why the Home Office had not terminated the contract with the provider and whether the contract gave the Home Office the right to terminate in the event of such egregious behaviour. The answer was that the same individuals would be rehired whoever the provider was. This was not a matter of TUPE; it was about who would apply. I continue to have anxiety about the terms of the contracts that the Home Office lets, but, of course, commercial confidentiality means that one cannot go further than that.

We have not got the running of detention right, if there is to be detention, especially for more than a minimum period, but that is not for today either. However, this compounds the importance of guidance. I have always thought that anyone seeking asylum or who is detained, is likely to be vulnerable—this is “and” not “or”. I had forgotten that the 2016 Act refers to people who are “particularly vulnerable”. The whole of this population is vulnerable, but not all of them are protected under the legislation and the guidance.

We have so often discussed the impact of detention: the very fact of being detained, as well as the conditions of detention. The noble Baroness used “imprisonment” in that last section. “Detention” is a softer term than “imprisonment” or “incarceration”, but I do not think it necessarily reflects a softer situation. There is the lack of hope, how the impact of the experiences which led to seeking asylum are compounded, the impact on children and, as has just been mentioned, the independent monitoring board’s recent report on the detention of families at Gatwick and on how badly affected children are by that.

My noble friend will remember that at the start of the coalition Government, the Liberal Democrats were adamant that there should be no detention of children. What we ended up with was the accommodation at Cedars. The Gatwick IMB report tells us that since 2017, 48 families have been held at the family PDA but only six have been removed. It puts in context what we put people through, probably for no good reason.

People who are at risk at home and at risk in the UK when they are in detention are very often from the LGBTQI+ community. I refer to the prejudiced attitudes of some staff—I emphasise some—although they are not specifically mentioned in the guidance. It has been questioned whether this failure to mention that group of people is in accordance with the equality impact assessment.

I understand that the new Government are facing a hugely difficult situation, but I hope, at least, that if detention capacity has to be retained or increased, there can be a focus on the conditions of detention, not just what it is like for the detainees but indeed for the good staff who work in these centres.

One of the changes to the statutory guidance seems to reduce the efficiency of the process. It is the deletion of the provision that victims of torture,

“with a completed Medico Legal Report from reputable providers will be regarded as meeting level 3 evidence”.

I understand from someone who has worked in the field with detainees in immigration detention and in conventional, as it were, prisons, that this automatic recognition really helped to move the process along. I guess this was particularly in the days of detained fast track. This change risks a further deterioration in a detainee’s health. It was not unusual to hear the previous Government suggest that people were trying to game the asylum system, and I dare say some do, but this change to the guidance seems to be giving the Home Office the power to obtain a second opinion in a way which is almost gaming the system on that side of the situation, giving itself the chance to do just that. This is a highly skilled—I might say niche—type of work, and not that many doctors and psychologists have experience of it. The guidance specifies matters to be taken into account, which may sound reassuring, but I think it must give scope for the development of thinking about and understanding mental health and trauma, and there is a danger of the guidance becoming a sort of tick-box exercise.

It leaves me thinking, “What about treatment?” We are talking about the detention and assessment of a detainee. The next discussion should be about treatment. One also wonders whether the people affected by this are actually a flight risk, which is of course where some of this comes from.

I am pleased to see the chair of the Secondary Legislation Scrutiny Committee listening to this. I hoped I might persuade him to join in. I do not want to steal his thunder, but he has rather encouraged me to do so. The committee has drawn the instrument to the attention of the House on the grounds that it is politically or legally important—I would say both—because of the underlying public policy. I am sure that the Minister will have had drawn to his attention the committee’s concerns, not just on this instrument but over a period, about the quality of explanatory information coming from the Home Office. The report talks of

“doubts about the appropriateness of the Home Office’s overall approach to policymaking, which too often appears to react to events, rather than proceeding from rigorous analysis and being supported by evidence”.

I know that it would not refer to policy-led evidence in a formal document, but I am going to do so.

The committee reports that the data does not provide compelling evidence either way on the need for the second-opinion policy, and suggests that the Home Office should monitor the effects closely. My addition is that that may be more difficult in the absence of an impact assessment. The committee adds that the Home Office should publish the results—quite right. I look forward to hearing what the Minister has to say about that, as well as the subject of this SI.

My Lords, I am grateful to the Secondary Legislation Scrutiny Committee for its work in scrutinising the regulations and to the noble Baroness, Lady Lister, for tabling this debate. I have the privilege of being a patron of a charity in Sheffield called ASSIST, which works with people who are seeking sanctuary and who have been refused asylum; it provides accommodation, information, advocacy and other support.

Just last week, I met a man called Victor, a former client of ASSIST. I have his permission to tell his story. Victor is from Zimbabwe. In 1980, he was among those who greeted with joy the nation’s independence and the election of Robert Mugabe as the first democratically elected Prime Minister of that country. That year, Victor embarked on a career in banking of 20-plus years; he became very senior. However, through the 1980s and into the 1990s, he became increasing disenchanted with the Mugabe regime and then opposed to it. Finally, in 2008, after a warrant was issued for his arrest on account of his political dissent, he sought asylum in this country. Victor was eventually granted leave to remain in 2022 and was united with his wife after a 14-year enforced separation. So, in the end, his has been a good news story.

However, in 2019, Victor experienced detention. Reporting in one week as required, he was in effect arrested and assigned for deportation. The decision came out of the blue, with no notice and no explanation. It was apparently arbitrary. In Victor’s case, deportation did not follow. He had by then lived for 10 years in Sheffield, which sets itself out to be a city of sanctuary, and he was known and valued. Within four days, 70,000 people had signed a petition for his release; he was indeed swiftly released and, within another two years, had been granted leave to remain.

I summarise his story because the inhumane way in which the detention and deportation process is operated makes every person subject to it vulnerable. At the time of his detention, Victor was a resourceful and accomplished adult male in good health. He was not vulnerable, according to the definitions in these regulations, but the impact of his detention on his well-being made him vulnerable. It was terrible at the time and remains considerable today. In other words, until the whole process of detention is managed in a way that is humane, consistent, fair, transparent and accountable, every immigrant and asylum seeker detained will be vulnerable.