Statutory guidance on adults at risk under scrutiny

Monday 6 November 2017

Following the judgment in Medical Justice and others, Shu Shin Luh, of the Garden Court Chambers Public Law Team, says it is inevitable that the statutory guidance will need to be reviewed and reissued so that it no longer contains the United Nations Convention Against Torture (UNCAT) definition of torture.

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Medical Justice and others v Secretary of State for the Home Department (Equality and Human Rights Commission intervening) [2017] EWHC 2461 (Admin), [2017] All ER (D) 52 (Oct)

Shu Shin Luh represented Medical Justice and two victims of gender based violence in this case.

Aspects of the defendant Secretary of State’s ‘Adults at risk in immigration detention’ guidance on the definition of torture were unlawful. The Administrative Court held that it had conflicted with the section 58 of the Immigration Act 2016, and had lacked a rational or evidence base. The UNCAT definition would require medical practitioners to reach conclusions on political issues, which they could not rationally be asked to reach.

What was the background to this challenge?

This judicial review challenge was directed at the lawfulness of the use of a definition of torture under the UNCAT introduced in statutory guidance issued under section 59 of the Immigration Act 2016 (IA 2016). Section 59 was introduced as a response to Stephen Shaw’s ‘Review into the welfare in detention of vulnerable persons’. The Shaw Review was critical of the way vulnerable detainees were dealt with in detention, and had recommended that the Home Office detention policy be amended to include a broader definition of vulnerability to fully reflect the categories of persons who would require and have the protective benefit of the strong presumption against detention.

The guidance is meant to operate in tandem with the Detention Centre Rules 2001, SI 2001/238. Under rule 34, every detained person must have a mental and physical examination within 24 hours of admission to a detention centre. Under rule 35, the medical practitioner is to report on the case of any detained person who the practitioner is concerned may have been a victim of torture. Together, the statutory guidance and the rules are to operate as the safeguard against the detention of vulnerable persons. The significance of section 59 and the ‘adults at risk’ statutory guidance, issued in pursuance of the provision, was to put policy on handling vulnerable persons in detention on a statutory footing. Previously, the guidance was set out in policy and did not require the scrutiny and approval of Parliament.

When the ‘adults at risk’ policy was introduced via IA 2016, s 59, the Home Secretary defined torture using the UNCAT definition of torture. This was not the Home Secretary’s first attempt at trying to introduce the UNCAT definition of torture. It had already previously been rejected in the case of  R (on the application of EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), [2013] All ER (D) 248 (May). In that case, Burnett J held that torture in the Detention Centre Rules 2001 had a broader meaning than in the UNCAT torture definition, which provided that torture was any act by which severe pain or suffering was intentionally inflicted for the purposes of obtaining information or a confession, punishment, intimidation, coercion or discrimination, when inflicted by a public official. EO adopted the same definition, but without the requirement for infliction by a public official.

In the present case, Medical Justice and the seven individual claimants were concerned that the UNCAT definition was restrictive and narrow, and had the consequence of excluding categories of victims of non-state severe ill-treatment who are similarly vulnerable to harm in detention as victims of state torture. Those who would be excluded would include victims of sexual and gender violence and abuse and cult and religious violence who were previously included under the EO definition.

The claimants were concerned that the use of such a restrictive definition was contrary to the statutory purpose of IA 2016, s 59, and carried unacceptable risks that individuals who were vulnerable and unsuitable for detention would not be identified and consequentially protected from continued detention. There were also concerns around the practical application for doctors in the immigration detention centres of the UNCAT definition, which was complex and legally technical as it impermissibly involved doctors making judgments on legal and factual matters related to who the perpetrator is, which are outside of their competence as medical practitioners.

What did the High Court decide and why?

The High Court found that the use of the UNCAT definition of torture in the ‘adults at risk’ statutory guidance was unlawful. The judge held that the decision in EO authoritatively decided the meaning of torture in rule 35(3) as well as in the previous policy documents.

The Home Secretary could not amend the meaning of ‘torture’ used in a statutory instrument by the issuing of new guidance under a new statute. The ‘adults at risk’ statutory guidance, while issued pursuant to IA 2016, s 59, and requiring Parliamentary approval, is not a form of delegated legislation. Torture for the purpose of rule 35 of the Detention Centre Rules 2010 still carries the EO meaning.

The statutory guidance, the Detention Centre Rules 2010 and the associated policies on the application of rule 35 are meant to be a consistent and coherent whole, the purpose of which is to safeguard those who are vulnerable from harm in detention by affording a strong presumption against their detention. The Home Secretary was wrong to assume that the EO definition of torture under rule 35 had been replaced by virtue of the insertion of the UNCAT definition of torture into statutory guidance. As that assumption was false, the ‘adults at risk’ statutory guidance was issued without consideration of a material consideration, namely that the definition of torture for rule 35 purposes remains the EO definition.

The court also held that the list of indicators of risk set out at paras 11 and 12 of the ‘adults at risk’ statutory guidance, read as is, appears to create an exhaustive list but not one broad enough to cover all circumstances in which a person might be particularly vulnerable to harm in detention.

The court accepted Medical Justice’s argument that the use of the restrictive UNCAT definition of torture in the ‘adults at risk’ statutory guidance was therefore contrary to the statutory purpose of section 59, which was to focus on those who were unsuitable for detention because they were particularly vulnerable to harm in detention. Such use was also irrational and had no rational or evidence base. It was further irrational for political issues as to who inflicted the harm to be left to a medical practitioner to address.

What are the practical and/or wider implications of the judgment? For instance, is it likely to lead to further claims for unlawful detention against the Home Office?

The High Court’s judgment means that parts of the ‘adults at risk’ statutory guidance have now been declared to be unlawful. The Home Secretary now has to consider what amendment is required to the statutory guidance and for such amended statutory guidance to be re-issued pursuant to IA 2016, s 59. In the meantime, the Home Secretary has agreed that the casework guidance on ‘adults at risk’ (Chapter 55b of the enforcement instructions and guidance) as amended in December 2016 will proceed on the basis of the EO definition of torture. This brings individuals back to the position prior to the issuing of the ‘adults at risk’ statutory guidance on 12 September 2016.

There are residual arguments raised by some of the individual lead claimants on other aspects of the ‘adults at risk’ statutory guidance which will still need to be determined. The Home Secretary has conceded that the individual lead claimants’ detention from the point of the rule 35(3) report, applying the UNCAT definition of torture, was unlawful, but there remains a dispute as to whether the lead claimants would be able to recover substantive or nominal damages.

It is possible that other individuals who were subject to the unlawful UNCAT definition of torture may be able to raise arguments relating to their false imprisonment, but each case will turn on its own facts and, like the lead claimants, there is likely to be a dispute over whether, even if liability might be conceded by the Home Secretary, the individual is able to recover substantive (as opposed to nominal) damages.

How does the case fit in with other developments in this area?

The judgment coincides with the government’s decision to commission a follow up review from Stephen Shaw into the welfare of vulnerable persons in detention, which commenced on 4 September 2017. The Home Secretary has not indicated when amended statutory guidance will be re-issued and re-laid before Parliament, but it is more likely than not that it will need to be informed by the follow up review of Mr Shaw.

What needs to be done to rectify the current system/policy of immigration detention?

In the light of Ouseley J’s judgment, it is inevitable that the statutory guidance will need to be reviewed and reissued so that it no longer contains the UNCAT definition of torture. Ouseley J did not dictate what alternative definition of torture needs to be adopted by the Home Secretary, and stated that it did not necessarily have to be the definition of torture stated in EO.

Adopting a broader definition of torture reflecting the section 59 statutory purpose is only one aspect of the framework for safeguarding vulnerable detainees. What the individual lead claims revealed was the misapplication of other strands of detention policy directed at safeguarding vulnerable detainees, such as the requirement in the ‘adults at risk’ statutory guidance for the detainee to demonstrate not only that he or she had suffered past serious ill-treatment, but that as a consequence detention is likely to cause him or her harm. This additional hurdle remains subject to litigation, and is itself a shift from previous policy, which presumed that those who have been tortured would be unsuitable for detention save in very exceptional circumstances. There was no requirement on the detainee to show additional evidence of likely harm in detention. This remains an area that needs to be resolved.

Shu Shin has an extensive public law practice with a strong human rights and anti-discrimination focus. She is experienced in public interest litigation, particularly in relation to immigration detention and historic abuse cases. She has been involved in several key claims relating to immigration detention, In Medical Justice and others, Shu Shin was junior counsel for the 1st–3rd claimants.

Shu Shin Luh was interviewed by Kate Beaumont of Lexis Nexis Public Law. 

This article was first published on Lexis®PSL Public Law on 30 October 2017.

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