Government policy change on definition of torture ruled unlawful by High Court judge

Former detainees and a charity have won a challenge against a Government policy change on torture said to have led to asylum seekers fleeing persecution being wrongly detained in UK immigration centres.

Mr Justice Ouseley ruled in their favour on Tuesday after hearing accusations that individuals were locked up during the processing of their asylum claims despite doctors submitting evidence of torture and ill-treatment to the Home Office.

The charity Medical Justice accused the Government of adopting an unreasonably narrow definition of torture in policy changes made last September related to Article 1 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Uncat).

Their QC argued at a hearing earlier this year that there was no “lawful authorisation” for replacing the broader meaning of torture under the Detention Centre Rules 2001 and the change did not comply with the Government’s public sector equality duty under the Equality Act 2010.

They launched the action arguing that the new definition – which has been on hold pending the judge’s ruling – had led to “many” detainees, including victims of trafficking, no longer being recognised as victims of torture.

The Home Office had contested the action brought by the charity and seven former detainees.

In his decision given in London, Mr Justice Ouseley said that “aspects” of the statutory guidance at the centre of the case – Adults At Risk In Immigration Detention (AARSG) – in relation to the definition of torture “are unlawful”.

Home Office policy accepts that asylum seekers who can show evidence of torture should only be detained in exceptional circumstances because of the risk of them being harmed by detention.

During a hearing in March, Stephanie Harrison QC, appearing for Medical Justice and the individuals, said torture had previously been defined as covering acts committed by any individual or group.

The new definition referred to torture carried out by official state agents only or terrorist groups holding territory.

Two of the individual claimants are women who say they suffered severe ill-treatment at the hands of persons who were not state agents and were subjected to sexual violence, rape and human trafficking for sexual exploitation.

Ms Harrison said both had fallen outside the new Uncat definition of torture and were not protected from detention.

The new definition also failed to protect others, she said, including individuals who had been seriously ill-treated at the hands of drug traffickers or because of their race, religion, or because they were homosexual or members of an ethnic minority.

She argued that torture did not only occur in police stations or at the hands of state security forces, but also “in your own home or in hotels”.

Home Office lawyers told the judge in written submissions that it was fundamentally wrong to suggest its “adults-at-risk” policy excludes victims of torture who fall outside the Uncat definition.

They contended that the statutory guidance showed it includes those who have experienced a traumatic event – of which torture is one example – likely to make them particularly vulnerable to harm if placed in detention.

The judge heard that the Home Office admitted decisions to detain the seven individual claimants were unlawful because of “failures to apply the adults-at-risk policies correctly in their cases” and the question of compensation was under consideration.

In his ruling, he said the Home Secretary’s response to the case put forward by the claimants in the judicial review action was “essentially that the statutory guidance and policies have been misunderstood”.

At the heart of the case was the claimants’ contention that the Home Secretary “has issued unlawful statutory guidance, and policies, albeit for the lawful purpose of preventing those who are more vulnerable to harm in immigration detention from entering immigration detention, or removing them from it, unless there are sufficiently strong countervailing reasons”.

The judge found that the AARSG “falls short of meeting the statutory purpose which it is required to meet on the basis that there are some, excluded from the scope of ‘Uncat torture’, who do not fall within another indicator but yet are particularly vulnerable to detention”.

He said the “chief problem” with the Uncat definition, with or without the variant inclusion of torture by terrorist groups holding territory, “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”.

Medical Justice said the seven detainees, who had been excluded from being recognised as torture victims, included victims of sexual and physical abuse, trafficking, sexual exploitation, homophobic attacks, a child abused by loan sharks, and a young man kidnapped and abused by the Taliban.

After the ruling, the charity said: “The Home Office may face dozens of unlawful detention claims and is being forced to change how it treats thousands of torture victims in detention.”

A spokeswoman said: “Narrowing the definition of torture by the Home Office demonstrates its sheer contempt for vulnerable detainees whose lives it is responsible for.

“The Home Office should have welcomed our evidence of the policy’s harm suffered by torture victims, not dismissed it.

“There is ample justification for immediately releasing all detained adults at risk so they can access the care and support they need in the community.

“We believe that the Home Office’s denials of systemic healthcare failings for over a decade has enabled mistreatment of detainees and that its inability to stop abuse means that the only solution is to close immigration removal centres.”

David Isaac, chairman of the Equality and Human Rights Commission, which intervened in the case, said: “People who have been subjected to torture should not be kept in immigration detention.

“This unlawful policy has been scrapped, but the Government should now go further and strengthen the human rights protections for people in immigration detention.”

He added: “It is just one aspect of the Government’s immigration detention programme that causes us serious concern.

“Following recent revelations about the treatment of people in immigration detention, we question the ability of the Home Office to ensure that companies contracted to run immigration detention facilities safeguard people’s basic rights.

“We are the only country in Europe that doesn’t have a statutory time limit on immigration detention and we continue to call for its introduction.”

Martha Spurrier, director of Liberty, said: “We welcome today’s ruling – but it is a damning indictment of our Government that this sickening policy ever saw the light of day.

“In the UK in 2017, the Home Secretary ignored medical expertise, basic humanity and the law to sign off a barbaric policy to lock up traumatised torture survivors.

“It is symptomatic of a vicious approach to immigration detention that sees thousands of people locked up in brutal conditions around the UK, with no certainty of when or if they will be released.

“Until that ends, this Government is endorsing abuse.”

The judge said the policy “lacked a rational or evidence basis” and that the new definition “would require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach”.

Welcoming the decision, Mr PO, one of the former detainees who challenged the Government, said: “The Home Office said that detention will not affect me because I am not a victim of torture.

“It is difficult to believe that the Home Office could happily detain me knowing that I was tortured.

“It affected me greatly to be subjected to this unlawful policy. It has left a scar in my life that will never be healed.”

He added: “I hope that the decision will benefit other survivors of torture held in immigration detention and it will prevent the Home Office from implementing a policy that will hurt vulnerable individuals in the future”.

Duncan Lewis Solicitors, which represented five of the former detainees, commented: “This ruling is a great victory for our clients, and should serve as a reminder to Amber Rudd that she and her department are not above the law, but the policy on torture was just one cog in the machinery by which the Home Office demeans and degrades those most in need of protection.

“We will continue to fight the whole rotten system on behalf of our clients.”

Labour’s shadow home secretary Diane Abbott said: “The idea that this country would lock up people who were victims of torture is truly shocking.

“The court’s verdict must be accepted by Government and they need to act. There must be no attempt to work around or simply ignore the ruling, as happened in previous cases.

“No victims of torture should be held in detention.”

Liberal Democrat home affairs spokesman Ed Davey commented: “It’s sad that Government ministers required a judge to tell them it was wrong to lock up the victims of torture. Now we need a proper apology.

“The way the Conservatives have used immigration detention centres has been disgraceful. Theresa May fought tooth and nail to try and stop Liberal Democrat ministers ending child detention in these places.

“The UK is the only European country with no time limit on immigration detention.

“The Conservative Government must show it is serious about adhering to principles of human dignity and radically overhaul how immigration detention works.”

Professor Cornelius Katona, clinical lead for the Royal College of Psychiatrists on the mental health of asylum seekers and refugees, said: “It is totally inappropriate for a doctor assessing a detainee to have to consider the political background to that detainee’s suffering.

“We welcome the High Court’s ruling which is fully in keeping with our belief in the need for a broad definition of torture when assessing vulnerability in an immigration detention context.

“There is growing evidence that detention is harmful to mental health, particularly for people who have been tortured and those with pre-existing mental health problems such as post-traumatic stress disorder.”

A Home Office spokesman said: “The intention of the adults-at-risk policy is that fewer people with a confirmed vulnerability will be detained and that, where detention becomes necessary, it will be for the shortest period necessary.

“The main focus of the judgment relates to the definition of torture. The court did not find against the adults-at-risk policy as a whole.

“The court acknowledged that the aim of the policy is to recognise a much greater range of circumstances which may make an individual particularly vulnerable to harm in detention.

“The Government is now considering how it can best address the court’s findings in relation to the statutory guidance.”

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