Detention of torture survivors ruled unlawful
17 May 2013
A High Court judge has today ruled that the detention of torture survivors by the British Government was unlawful following legal action brought against the Home Office on behalf of five victims of torture who had been subjected to lengthy periods of detention in Immigration Removal Centres.
Law firm Leigh Day represented the five claimants whose claims were brought with the assistance of the charity Medical Justice and the Helen Bamber Foundation in order to highlight the systemic failings in the application of the Home Office's own policy that where there is independent evidence that an individual has been the victim of torture, they should only be detained in very exceptional circumstances.
In 2012, Medical Justice published a detailed report – The Second Torture which found that the safeguards to identify victims of torture were failing at every stage and that torture survivors were routinely being detained in breach of Home Office policy.
Similar findings were made by the HM Chief Inspector of Borders and Immigration in a report published in December 2012.
One of the five cases was settled by the Home Office at the doors of the Court. In each of the four cases which proceeded, the Judge.
Mr Justice Burnett, found that the individuals were unlawfully detained. The Judge described the situation as 'disturbing'.
All the claimants had been able to establish the unlawfulness of their detention through the assistance of Medical Justice, who provided access to independent medical experts. Reports prepared by volunteer medical practitioners, enabled them to provide the evidence required by the Home Office and which should have led to their release from detention.
However, Jamie Beagent, the lawyer from Leigh Day representing the torture victims, explained: "This is not what should have happened. Rule 35 of the Detention Centre Rules, and associated Home Office policy, provides for a procedure by which torture survivors should be identified by medical staff at the Immigration Detention Centres and alerted to Home Office caseworkers who should then apply their policy and release the torture victim.
"However, in each of these cases this failed: obvious physical evidence such as scarring was missed and reports were not prepared on time or at all. In most cases a detainees allegation of torture was recorded without any actual medical assessment or concerns raised. In turn, Home Office caseworkers simply accepted these reports without seeking more information and dismissed allegations on the basis that the caseworker did not believe the detainee.
"The consequence is that the protections supposed to be afforded by the Rule 35 process simply do not work and the onus is left on the individual detainee to obtain independent evidence that they have been tortured. Whilst charities such as Medical Justice do their best to assist they are limited by their resources and the availability of medical practitioners and cannot provide a universal service to the thousands of people held in immigration detention at any one time.
"Whilst I am pleased our client's cases' have succeeded, they are the lucky ones. They were able to access independent medical help. Unfortunately, today's judgment demonstrates that the safeguards provided for by Rule 35 of the Detention Centre Rules are not fit for purpose.
"These safeguards must be bolstered to protect the vulnerable victims of torture who are presently routinely detained for long periods despite the Government's stated policy not to do this."
Natasha Tsangarides of Medical Justice said: "This judgment demonstrates the contempt in which the Home Office holds the rule of law. All the victims were found to have been imprisoned unlawfully, which shows that Home Office safeguards to prevent the detention of torture survivors are not working.
"Medical Justice has been lobbying the government for seven years over this point but nothing has changed. This judgment exposes them. To prevent this happening again, we hope that the causes of the failure are identified, remedied and where appropriate, that people are held to account."