The Claimant was represented by Stephanie Harrison QC, Louise Hooper and Emma Fitzsimons of Garden Court Chambers, instructed by Shalini Patel at Duncan Lewis Solicitors.
The Home Office has conceded that a potential victim of trafficking was unlawfully detained for almost six months. The Claimant was an exceptionally vulnerable woman, who would have been removed by the Home Office but for the issue of judicial review proceedings, which stopped her removal to China. After proceedings started, the Home Office accepted that they had failed to identify her as a potential victim of trafficking. They re-considered their NRM (National Referral Mechanism) decision and found there were reasonable grounds to believe she had been trafficked.
She was assessed in detention by the psychiatrist, who concluded that:
“appears to have decompensated in the context of her detention. Unclear personality structure, noted history of abusive relationships. Demonstrates symptoms suggestive of a depressive episode with agitation and psychotic symptoms”
Following delays in obtaining disclosure, the Home Office agreed the day before trial that the Claimant had been unlawfully detained from 11 April 2018 to 8 October 2018 and is entitled to compensatory damages. This is just one stark example of how Home Office decision-making and the Adults at Risk policy is failing the most vulnerable in immigration detention.
The Claimant is a Chinese female victim of trafficking, who has been encountered twice by the Home Office in circumstances highly indicative of human trafficking.
In 2016, police raided a brothel in Yorkshire following a tip-off from a member of the public, who had expressed concerns that a woman present in the brothel did not look as if she wanted to be there. Police forced entry to the brothel. The Claimant was found without her passport; having overstayed a visit visa; claiming to be suffering from a UTI; worried about paying off large debts; with no family or friends in the UK. All of these are trafficking indicators, as set out in Home Office policy. Despite this, the Claimant was not referred into the NRM and was instead detained. She was released a week later due to lack of bed space.
She disappeared, until she was found again by the Home Office on 11 April 2018, in a massage parlour in Wales. She was again detained and treated as an absconder. She remained in immigration detention until 8 October 2018.
Errors in the Claimant’s case
The legal errors in the Claimant’s case were numerous:
- There were clear indicators present, certainly by April 2018 to trigger a referral into the NRM for investigation of her trafficking claim – but this did not happen;
- The Detention Gatekeeper’s records did not show that her 2016 circumstances were considered when she was re-detained in April 2018;
- There was no active consideration by either the referring official or the Detention Gatekeeper as to the possibility of trafficking when authorising detention;
- Had the Claimant been lawfully identified as a potential victim of trafficking from the outset, she would have been entitled to release and access to support and safe accommodation under Home Office policy;
- The Claimant’s health screening induction was completed by a nurse, late at night, after a long drive, during which the Claimant had been sick in the back of the escort van;
- The health screening was conducted without an interpreter – despite the fact the Claimant is a Mandarin speaker with very, very limited English. Notably, her interactions with police, escorts and guards all required an interpreter.
- She did not have a medical examination with a GP within 24 hours of admission to immigration detention, as is required by Rule 34 of the Detention Centre Rules 2001. This is a significant breach of a vital safeguard against arbitrary detention;
- The first time trafficking considered by the Home Office was after the Claimant claimed asylum, despite the presence of objective indicators and Home Office policy which recognises victims are often slow and reticent to disclose and can be distrustful of authority;
- A Rule 35(3) report produced by a GP in detention showed that she had scarring consistent with her account of being burned with boiling water;
- She presented with bizarre, disinhibited behaviour in detention. On multiple occasions, she was observed walking around with only her underwear on or taking her clothing off. She was found outside screaming in the garden, late in the evening in the rain. She was frequently recorded as distressed, crying, staring off into the distance blankly or non-responsive with staff;
- Detention centre staff recorded that she kept having visions of a man in her room at night time burning her with boiling water – in much the same way as she had been burned, according to the Rule 35(3) report;
- There were two recorded incidents of suspected self-harm, including one burn with water on her leg, and markings on her arm – despite the fact she had been placed on ACCT, the Home Office’s policy for observing persons at risk;
- On two occasions, she was reprimanded and given warnings for reporting that she was (likely psychotic) visions of being burned with boiling water;
- On another occasion, she was told that if she was mentally ill, she would be sectioned under the Mental Health Act and not released;
- The need for a psychiatric review was identified on 8 August 2018, but she was not seen by a psychiatrist until 10 September 2018;
- When she was assessed by the psychiatrist, it was concluded that she had “decompensated in the context of her detention.” She was diagnosed with a depressive episode with psychotic and agitated symptoms and started on anti-psychotic and anti-depressant medication;
- She lost 4 kilos in detention despite the fact she was subject to a ‘Supported Living Care Plan.’ She did not eat in the dining room for 22 consecutive days: she missed 39 breakfasts, 36 lunches, 30 dinners;
- Expert medical evidence obtained by the Claimant’s solicitors from Freedom from Torture showed that the Claimant did indeed have scarring highly consistent with being tortured, and that she was suffering from PTSD with psychotic symptoms, and depressive disorder. Concern was also expressed about the “very considerable delay” between concerns being raised in July 2018 and the psychiatric assessment in September 2018.
Concession made by the SSHD
On the afternoon before trial in the High Court, the SSHD conceded that the Claimant was unlawfully detained from 11 April 2018 to 8 October 2018 and was entitled to compensatory damages for the entire period of detention. This was after much delay in obtaining disclosure of over 200 pages of material detention centre records, which showed that the Home Office’s staff were recording much of the concerning behaviour of the Claimant but failing to act on this information appropriately.
The Claimant should never have been in immigration detention. The Home Office’s own policies recognise that potential victims of trafficking are not usually suitable for detention. Furthermore, the Claimant’s case shows that the Adults at Risk policy is failing to act as a safe system for vulnerable detainees. Multiple opportunities to screen her out of detention were missed. There was a clear disconnect between the observations of staff and the information available to Healthcare. Even when brought to Healthcare’s attention, there was a further delay of a month in having her undergo psychiatric assessment. Her case also shows that the Adults at Risk policy has failed to embed in a dignified and protective culture among detention centre staff. The Claimant’s behaviour (attributed to her psychotic breakdown as a victim of torture and trafficking) was responded to with disciplinary action such as warnings, rather than care and support. This was entirely inappropriate.
Sadly, the Claimant’s experience is not atypical. This is just one snapshot of the failures of the Adults at Risk policy. Just this week, Freedom from Torture commented that only 6% of vulnerable detainees were released from immigration detention, despite being identified as victim of torture, sexual violence or trafficking.
The Joint Committee on Human Rights has also published its report on Immigration Detention, where they also concluded that the Adults at Risk policy is not fit for purpose:
“The Adults at Risk policy does not give adequate protection to individuals at risk of harm in detention either by way of policy or of practice. Both the AAR policy and other Home Office policies are silent on how to respond to the needs of those that lack mental capacity, which puts them at a clear disadvantage. More needs to be done to identify vulnerable detainees and treat them appropriately.”
Members of Garden Court’s Public Law team acted as advisors and gave evidence to the JCHR. For more information on the JCHR’s significant report, read our news item here: Major reforms to immigration detention decision-making proposed in report of the Joint Human Rights Committee