David Neal publishes final 'adults at risk' inspection as Home Secretary cancels the annual report
David Neal, the Independent Chief Inspector of Borders and Immigration (ICIBI), said he was concerned and disappointed by the Home Secretary's decision to terminate the ICIBI's commission to carry out an annual inspection and report on the adults at risk in immigration detention policy.
Image credit: WikipediaSuella Braverman's decision to terminate the commission coincided with the release of the ICIBI's third annual inspection report, published last Thursday. The 60-page report can be downloaded here.
The ICIBI's final annual inspection report takes a critical look at the efficiency and effectiveness of Rule 35 (R35) of the Detention Centre Rules 2001, which creates a mechanism for medical practitioners to identify vulnerable detainees in immigration removal centres (IRCs). In a press release accompanying the release of the report, David Neal stated bluntly: "On the basis of this inspection, the Rule 35 process needs to be called out for what it is – ineffective."
In a subsequent opinion piece in the Guardian written together with former Prisons and Probation Ombudsman Stephen Shaw, David Neal commented: "It is … disappointing to us that the Home Secretary has now discontinued the standing commission for the [ICIBI] to carry out annual reviews on the effectiveness of the Home Office's practices and policies towards adults at risk in immigration detention. The ending of this commission brings to a close a process of scrutiny and reform of the immigration detention system that can be traced back to 2015. […] We hope that this decision does not reflect a sense of complacency or a loss of interest in these issues on the part of the Home Office. While the commitment of many of those involved in immigration detention to make the system more humane has no doubt been genuine and sincere, the system still does not work well enough."
Last week's ICIBI report found that a significant increase in Rule 35 reports during the inspection period had a negative impact on an already flawed Rule 35 process. In addition, areas identified as problematic in earlier ICIBI annual inspections had progressed at a "glacial pace" and some areas saw no improvement. Home Office senior managers were said to show a lack of interest in improving Rule 35.
The report notes: "Echoing the findings of the first and second annual inspections of the 'Adults at risk in immigration detention' policy, the majority considered that R35 was no longer achieving its aim, mired by disproportionally high volumes of R35(3) reports, concerned with torture, in comparison with exceptionally low volumes of R35(1) and R35(2) reports relating to health and suicidal intentions respectively. Inspectors and stakeholders alike also highlighted the impact of some poor quality R35 reports by doctors not meeting the policy requirements, a lack of Home Office feedback on these reports, weak quality assurance mechanisms for Home Office R35 responses, Home Office concerns that R35 was being abused by detainees and legal representatives, and the under-resourcing of the R35 team, on the effective delivery of Rule 35."
ICIBI inspectors found Home Office, healthcare and contractor staff all missed opportunities to identify vulnerable detainees for whom the R35 mechanism might be appropriate.
The report continued: "No literature or posters were available in any of the IRCs, in English or any other languages, explaining what R35 was or how it could be accessed. As a result, R35 was mostly only highlighted to detainees by legal representatives and other detainees, leading to a level of confusion about its purpose. This was subsequently considered (by Home Office staff in particular) to be an indication that the detainee was seeking to misuse R35 simply as a method of getting out of detention, rather than a flag to an individual's vulnerability and an indication that continued detention may be detrimental."
The ICIBI found that a perception that the Rule 35 process was being abused by detainees was common across the Home Office teams in the IRCs inspected. Inspectors believe "the enthusiasm to protect vulnerable people in immigration detention was held back by a narrative that placed abuse of the system ahead of protecting the vulnerable."
David Neal said he did not accept the limited evidence provided by the Home Office to support the assertion of abuse. "I have no doubt that some migrants are abusing the system, but this cannot be allowed to infect the whole response from the Home Office. It is absolutely clear that there are individuals in the system who have suffered torture and are the victims of trafficking," he added.
Despite the Home Secretary's cancellation of the ICIBI's commission to produce an annual report on the issue, Neal vowed to continue to include coverage of adults at risk in immigration detention in his own inspection programme, saying: "I will continue to bring my findings to the attention of the Home Secretary, Parliament, and the public."
With immigration detention set to increase, David Neal and Stephen Shaw said it is now more important than ever for government ministers to retain their focus on detainee welfare and ensure that safeguards for vulnerable detainees are robust and effective.
As Bail for Immigration Detainees (BID) noted last week, the Home Office has recently announced plans to reopen Campsfield House and Haslar as IRCs, increasing the number of people that can be detained by a third.
The Home Office stated in its official response to the ICIBI's report: "Although there are aspects to this report that the Home Office does not agree with, we feel that the recommendations set out in this report will drive positive reform around the Rule 35 process which has been the focus of this inspection."
Meanwhile, BID last month published its latest survey report on access to legal advice in IRCs, the first survey carried out by BID since the onset of the Covid-19 pandemic.
BID found that a "concerningly low" percentage of the people in immigration detention who were surveyed currently have an immigration lawyer.
BID stated: "In the survey, only 18 out of 42 people currently have an immigration lawyer (43%). These figures are significantly lower than previous surveys in 2019 where the figures were at 64% (spring) and 59% (autumn). This trend is very alarming, particularly against the background of the Nationality and Borders Act 2022 and a general increase in laws and policies that criminalise and punish people subject to immigration control and remove people's basic rights. The need for legal representation is greater than ever. Of those that are represented, 14 out of 18 said that their lawyer was funded by legal aid (77%)."