Logo

High Court rules Government redefinition of torture in immigration detention policy is unlawful

10 October 2017

Stephanie Harrison QCShu Shin Luh

Stephanie Harrison QC and Shu Shin Luh of the Garden Court Chambers Public Law and Immigration Teams represented Medical Justice and two victims of gender based violence.

This case has been widely reported in the media including the Guardian and BBC.

The High Court ruling has found that the Home Office narrowing of the definition of torture, lacked “rational or evidence base” and was unlawful. The Home Office has confirmed it will not appeal against the ruling.

Mr Justice Ouseley has ruled that hundreds of victims of torture have been wrongly locked up in immigration detention centres. The Home Office may face dozens of unlawful detention claims.

Aspects of Home Office policy to identify and release victims of torture and other vulnerable detainees from immigration detention in the UK were challenged by the seven detainees and Medical Justice, the charity that sent volunteer doctors to assist two of them in detention. The Equality and Human Rights Commission intervened in the case.

Seven detainees brought this case to the High Court, including victims of sexual and physical abuse, trafficking, modern day slavery, sexual exploitation, homophobic attacks, a child abused by loan sharks, and a young man kidnapped and abused by the Taliban.

The Home Office narrowed the definition of torture used in the new “Adults at Risk” policy, excluding the detainees from being recognised as torture victims. The policy redefined torture to refer to violence carried out by official state agents only (Article 1 of the UN Convention Against Torture). As a result, those tortured by traffickers, terrorists or other non-government forces could be held in detention even if expert medical evidence found the scars on their bodies to be consistent with their accounts of torture.

Medical Justice opposed the change of definition and urged the Government not to narrow the definition before it was published in September 2016. The Home Office did not address these concerns, prompting Medical Justice to take legal action.

Today’s judgment states: “The chief problem with the narrowed definition is that it excludes certain individuals whose experiences of the infliction of severe pain and suffering may indeed make them particularly vulnerable to harm in detention.” The judge stated that the definition of “torture” intended for use in the policy would require medical practitioners to “reach conclusions on political issues which they cannot rationally be asked to reach”.

The Home Office admitted it unlawfully detained the seven detainee claimants and applied the policy wrongly in 57% of 340 cases in its initial 10 weeks of implementation.

The Government’s attempts to narrow the definition of torture are clearly at odds with the Prime Minister’s apparent commitment to combat modern slavery and starkly illustrate how Government policy falls short in protecting victims of modern slavery and trafficking.

Stephanie Harrison QC and Shu Shin Luh of Garden Court Chambers represented Medical Justice and two of the seven victims. Stephanie Harrison QC and Shu Shin Luh were instructed by Jed Pennington and Jane Ryan of Bhatt Murphy Solicitors. Duncan Lewis Solicitors are co-claimants in the case represented by Toufique Hossain.

The full judgment is available here.

Menu