By Alison Pickup and Martha Spurrier
The last few weeks have seen a flurry of activity around immigration detention, particularly in relation to the key issue of the treatment of mentally ill detainees in detention. On 3 March 2015 the APPG on Refugees and the APPG on Migration published their Report of the Inquiry into the Use of Immigration Detention in the United Kingdom. As well as recommending that there should be a 28 day time limit on immigration detention, that detention should be “very rare” and that alternatives to detention should be utilised more readily, the report found that healthcare professionals dealing with mentally ill detainees do not have the training or resources necessary to identify and treat mental illness in detention and that the Rule 35 procedure is failing to protect vulnerable detainees. The panel stated that they were “particularly shocked by some of the personal testimony [they] heard of people suffering from mental health conditions who were detained for prolonged periods of time”, indicating that the evidence showed that “it is not possible to treat mental health conditions in IRCs” and that the Home Office policy of detaining people with serious mental health conditions if they can be “satisfactorily managed” in detention, “puts the health of detainees at serious risk” (p.59).
The APPG report comes less than a month after the Home Secretary announced a 6-month review into the welfare in detention of vulnerable persons on 9 February 2015. This announcement accompanied the publication of a report by the Tavistock Institute into mental health issues in immigration removal centres, a year after the report had been delivered to the Home Office, and the Home Office’s response to the recommendations made by the Tavistock Institute.
The detention of mentally ill persons in the immigration detention estate is, or should be, an issue of acute concern. In the 3 years between July 2011 and July 2014, the Home Office was found on six occasions to have breached Article 3 ECHR through the inhuman and/or degrading treatment of mentally ill persons in immigration detention. That is a shocking figure in itself, but legal representatives and NGOs will be aware of many other cases in which similar facts have suggested similar breaches, but which the Home Office has settled out of court.
Specific factors which contributed to the findings that Article 3 had been breached included the failure to properly take into account evidence of mental ill-health when reviewing detention; a failure to respond to professional assessments that detainees have become unfit for detention; failure to ensure timely transfer to hospital when needed; failure to communicate accurate and adequate information to senior decision makers; inappropriate use of force and removal from association; and a lack of proper psychiatric treatment and supervision of detainees.
The Tavistock report and the Home Office’s response to it must be seen in the context of those findings. The Tavistock report rightly recognises inadequate training and awareness on mental health issues, communication problems between healthcare staff, DCOs and casework staff, and inadequate specialist mental health professionals as key problems. The Home Office has accepted the majority of its recommendations. It has established a review to look at the care and treatment of detainees which will address many, but not all, of them.
It is striking that the terms of the reference for the review stipulate that “the review shall focus on policies applying to those in detention, not the decision to detain”. Yet as the reported cases show, a critical factor leading to the inhuman and degrading treatment of detainees is the failure of casework staff to take proper account of evidence of deteriorating mental health in their decision making, or to properly apply the Home Office’s policies on the use of detention where there is evidence of mental illness.
Delays and difficulty in communicating information contribute to the inadequacy of detention reviews but addressing those problems, and improving the care and support available to vulnerable detainees, is little more than a sticking plaster. Immigration detention is demonstrably damaging to the mental health of detainees, whether or not they are mentally unwell at the outset. The most damaging aspects include the uncertainty that goes hand in hand with potentially indefinite administrative detention with no automatic judicial oversight. No review into the welfare of detainees can hope to adequately address these repeated breaches of fundamental rights if it cannot consider the decision-making which places such vulnerable people in detention in the first place, and keeps them there for prolonged periods.
For further information see the Initial Report of the Mental Health in Immigration Detention Action Group here and its submission to the Joint Committee on Human Rights in 2013 here. The six judgments where a breach of Article 3 has been found are:
R (S) v SSHD  EWHC 2120 (Admin) (5 August 2011)
R (BA) v SSHD  EWHC 2748 (Admin) (26 October 2011)
R (HA) v SSHD  EWHC 979 (Admin) (17 April 2012)
R (D) v SSHD  EWHC 2501 (Admin) (20 August 2012)
R (S) v SSHD  EWHC 50 (28 January 2014)
R (MD) v SSHD  EWHC 2249 (Admin) (8 July 2014)
The review is being conducted by Stephen Shaw, formerly the Prison and Probation Ombudsman. He has written to a number of organisations seeking their input into the review and confirming that he will have some time for face-to-face meetings. Written evidence can be contributed to the review by email: IRWD@homeoffice.gsi.gov.uk. The deadline for contributions is 15 May 2015.