High Court rules Government redefinition of torture is unlawful

By agency reporter
October 12, 2017

A group of unlawfully detained torture victims, including Mr PO who had been beaten, knifed and flogged in homophobic attacks, have been successful in their legal challenge at the High Court.  The ruling found that the Home Office narrowing the definition of torture in its flagship policy lacked a “rational or evidence base”.
The Home Office may now face dozens of unlawful detention claims and is being forced to change how it treats thousands of torture victims in detention.
Aspects of Home Office policy to identify and release victims of torture and other vulnerable detainees from immigration detention were challenged by seven detainees and Medical Justice, the charity that sent volunteer doctors to assist two of them in detention. 
The seven detainees 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 Taliban.  The Home Office narrowed the definition of torture used in the new 'Adults at Risk' policy, excluding the seven from being recognised as torture victims.  
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 dismissed warnings from Medical Justice whose evidence exposed that the policy purporting to lessen the risk of harm was actually likely to increase it.  The policy fundamentally weakens protections for vulnerable detainees leading to more rather than fewer being detained, for longer.
The Home Office admitted it unlawfully detained the seven detainee claimants and applied the policy wrongly in 57 per cent of 340 cases in its initial 10 weeks of implementation, describing that as a “bedding in” issue. 
Systemic policy and healthcare failures were highlighted by last month’s BBC Panorama undercover footage of detainees appearing to be abused, including a guard throttling a detainee whilst threatening to kill him and a nurse colluding in falsifying the detainee’s medical records. Since the documentary was broadcast, three detainees have died in immigration detention.
Mr PO, who was unlawfully detained and suffered mental health deterioration while held in detention, said, “I welcome the decision and I am happy that the Judge accepted that the Home Office’s policy to narrow the definition of torture was unlawful. 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. Although I was recognised as a refugee by an independent tribunal, the reminder of being detained as a torture survivor is torture in itself. The policy allowed the Home Office to turn a blind eye to my suffering and the suffering of hundreds of other torture survivors. Although I welcome the decision, it is still upsetting that the Home Office, who should protect people like me, rejected me and put me in detention which reminded me of the ordeal I suffered in my country of origin. 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”.
A spokesperson for Medical Justice 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. 
For those detainees excluded by the narrower definition of torture, the policy required specific evidence that detention is likely to cause them harm – described as an “additional hurdle” in the judgment. Not only does the policy lack effective mechanisms for obtaining such evidence, it also weakened already ineffective safeguards, encourages a ‘wait and see’ approach where vulnerable people were detained and allowed to deteriorate until avoidable harm has occurred and can be documented. As such, the policy effectively sanctioned harm to vulnerable detainees. “
Jed Pennington of Bhatt Murphy Solicitors who represent Medical Justice and two of the (ex)detainees said, “It is shameful that the Home Office reintroduced a definition of torture that the High Court had already thrown out under the guise of a policy that is supposed to be more protective of vulnerable detainees.  Adults at risk is fundamentally flawed and should be replaced with a framework that genuinely protects the vulnerable with, as a minimum, a prohibition on the detention of all victims of torture or trauma.””
Duncan Lewis Solicitors, representing five of the (ex)detainees said, “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.”
The Equality and Human Rights Commission intervened in the case, and their Chair David Isaac 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. 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, welcomed the ruling but said, “ 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.”

Download the full High Court judgement here 

* Medical Justice http://www.medicaljustice.org.uk/


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