Immigration detention of victims of torture and other vulnerable people

The adults at risk in immigration detention policy

In September 2016 the Home Office adopted an ‘adults at risk in immigration detention’ policy, which was intended to improve the identification of vulnerable cases ill-suited to immigration detention. The policy was part of the Government’s response to Stephen Shaw’s 2015 review of the welfare of vulnerable people in immigration detention.

NGOs working with torture survivors and immigration detainees have criticised the policy, which they fear worsens vulnerable people’s protection from immigration detention. They contend that it has placed an increased evidential burden on vulnerable people and increased the range of factors that can be weighed against evidence of vulnerability when deciding whether to detain.

The policy was also criticised for adopting a narrower definition of torture than the Home Office had previously used. The policy’s definition excluded torture committed by ‘non-state’ actors. In October 2017 the High Court found that aspects of the policy, including the narrower definition of torture, were unlawful.

New draft policy guidance and ongoing stakeholder criticisms

New draft guidance on adults at risk, intended to give effect to the High Court judgment, was laid before the House on 21 March 2018 and is due to come into effect on 2 July.

It is underpinned by related regulations, which were laid before the House on 27 March and subject to the negative approval procedure:

• Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018 (SI 2018/410)
• Detention Centre (Amendment) Rules 2018 (SI 2018/411)

Two EDMs praying against the regulations (EDM 1200 and EDM 1202) have each gathered over 100 signatures.

The amended policy introduces a new definition of torture. In addition, it makes explicit that the policy also applies to individuals who do not fall within the “indicators of risk” list but who may nevertheless be particularly vulnerable to harm in immigration detention.

NGOs have criticised the nature of the changes made. They argue that the revised definition of torture, which refers to a concept of “powerlessness”, is unnecessary and too complex for medical practitioners and Home Office staff to apply, and will inappropriately exclude people subjected to severe ill-treatment They also continue to point to broader concerns about the effectiveness of the adults at risk policy.