Cross-Party Parliamentary Report into Use of Immigration 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, 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.

Doughty Street’s Laura Dubinsky was among the lawyers who gave evidence to the inquiry.

For commentary on the Report’s findings on the treatment of mentally ill people in detention please read the excellent new blog post from Alison Pickup and Martha Spurrier here.

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Recent reports and reviews: immigration detention and the mentally ill

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 [2011] EWHC 2120 (Admin) (5 August 2011)

R (BA) v SSHD [2011] EWHC 2748 (Admin) (26 October 2011)

R (HA) v SSHD [2012] EWHC 979 (Admin) (17 April 2012)

R (D) v SSHD [2012] EWHC 2501 (Admin) (20 August 2012)

R (S) v SSHD [2014] EWHC 50 (28 January 2014)

R (MD) v SSHD [2014] 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.

Detention Action win in Court of Appeal: second aspect of DFT unlawful

The Court of Appeal have found that the Secretary of State’s policy (which the court found to have been in place since 2008) of detaining individuals on DFT criteria post-decision and pending appeal is unlawful because it is not sufficiently clear and transparent, and even if it had been clear, that there is no Saadi justification for this period of detention.

Sonal Ghelani of the Migrants’ Law Project, the solicitor acting for Detention Action, said:

It appears that the Home Office has been detaining asylum seekers unlawfully for their appeals for the last six years.  It cannot be right or fair that the Home Secretary, as a party to an appeal, is entitled to detain her opponent when the effect of detention is to make the appellant’s conduct of the appeal much more difficult and therefore to make it less likely that he or she will be successful.”

A summary of the 4th  judgment and the full text are available below.

Summary of Judgment

Detention Action – 16 Dec 2014

Nathalie Lieven QC and Charlotte Kilroy of Doughty Street Chambers, instructed by the Migrants’ Law Project, represent Detention Action.

Challenging policies on the use of force

Please read Adam Straw’s excellent paper below on challenging policies on the use of force following the decision by the Court of Appeal in R (FI) v. Secretary of State for the Home Department [2014] EWCA Civ 1272.

Adam Straw was awarded Chambers and Partners Human Rights and Public Law Junior of the Year 2014. He is a member of Doughty Street’s new immigration detention group.

Adam’s presentation was delivered at Doughty Street Chambers’ inaugural immigration detention roundtable on 25 November 2014. For more events from the immigration detention group please visit the Doughty Street website at http://www.doughtystreet.co.uk/knowledge-centre.

 

 Challenges to policies on the use of force

Adam Straw

 

  1. Articles 2 and 3 of the ECHR require the national law regulating the use of force to secure a system of adequate and effective safeguards.
  2. The Strasbourg court has repeatedly said that an operation involving the use of force “must be regulated and organised in such as way as to minimise to the greatest extent possible any risk to life or of bodily harm”.
  3. That has, for example, been applied to the police use of firearms (Makaratzis v. Greece [2005] 41 EHRR 49, paras 58 and 60); non-lethal force used by the police during a student demonstration (Kemal Bas v. Turkey app no. 38291/07, 19 February 2013); and restraint by prison officers of a detainee (Kurnaz & Ors v. Turkey, app no. 36672/97, 24 October 2007, at §56).
  4. R (FI) v. Secretary of State for the Home Department [2014] EWCA Civ 1272 is a case brought by Emma Norton at Liberty. It was a challenge to the policy and training regarding the use of force on a person being removed from the UK. The claim did not argue that a particular instance of restraint on FI was unlawful, rather that the legal framework in the abstract was unlawful.
  5. Various bodies had recommended that specific techniques for the use of force should be developed, tested by experts, and approved, and then staff should be trained to use them. If that did not happen, and staff were left to improvise their own techniques, the use of force would be more dangerous and injury or death more likely. The Court of Appeal recognized there had been delay in acting upon these recommendations, which were first made in 2008, but decided that the Defendant had acted sufficiently quickly to satisfy the Convention standard.
  6. The Court of Appeal decided that the ‘minimise risk to the greatest extent possible’ standard only applies to the way in which the particular operation under consideration is being regulated. A somewhat lower test applies to the administrative framework: the system must contain reasonable, adequate and effective safeguards against arbitrariness, abuse of force and avoidable accident: §41.
  7. It will take some time to develop, test and approve techniques, and give staff the necessary training. The Court of Appeal’s decision suggests that 6 years is not an unreasonable period for that to take. Yet a ‘particular operation’ involving the use of force during an immigration removal will often take place very quickly. There may only be seconds from when a disruption begins and when force is used. Permission to appeal is being sought.
  8. Whether or not FI is appealed, the Court of Appeal recognised that a particular operation must be regulated and organised in such a way as to minimise risk. So if you have a client who has been injured when the authorities used force against him or her, you will be able to challenge the regulatory framework on the basis that it does not meet this higher standard.
  9. A policy or system will also be unlawful under domestic public law if it gives rise to an unacceptable risk of breach of articles 2 or 3 of the Convention. The Court of Appeal in FI decided that, on the facts, and given there have been very few injuries caused during removal, there was not an unacceptable risk.
  10. Some recent examples of this test being applied to the State’s use of force are as follows.
  11. In Tali v. Estonia 66393/10, 13 Feb 2014 the European Court decided that there was a breach of article 3 in part because Pepper Spray was used on a prisoner inside his cell: §82. That was despite the fact that the prisoner was extremely dangerous, having been convicted of murder, manslaughter and attacks on prison officers; and had threatened officers.
  12.  The Court indicated there must be clear, detailed and binding instructions on the use of tear gas, which sets out as a minimum:
    •  the specific circumstances in which CS gas may be used;
    • that CS gas may not be used in a confined area; and
    • the right of the victim to be granted immediate access to a doctor: §52 and 78. See also Izci v. Turkey 42606/05, 23 October 2013, §63-66; Ali Gunes v. Turkey 9829/07, 10 July 2012, §37, 39-41.
  13. In Shchiborshch and Kuzmina v. Russia appn no 5269/08, 2 June 2014 the police came to the flat of a mentally ill man to try to hospitalize him. He attacked them with a knife and wounded four officers. The officers hit him with batons and he barricaded himself in the kitchen. The police then tried to storm that room and he fatally stabbed himself.
  14. The ECtHR decided there was a breach of article 2 because the attempt to hospitalize the man was not organised so as to minimise the risk to life to the greatest extent possible. The reasons for that included (1) police had not been specially trained in the detention of mentally ill people, (2) no medical personnel were present, and (3) police should have retreated and waited for trained medical assistance, rather than hitting him or storming the kitchen.

Doughty Street Chambers – New specialist practice group

doughty street

Claims arising out of Immigration Detention is an area which cuts across many of Doughty Street’s traditional strengths, encompassing immigration, civil actions against public authorities, and public law.

We have established the Immigration Detention group, the first and, so far, only such specialist grouping at the Bar. The aim is to pool our collective expertise in the field, add value and promote best practice.

The team includes a wide-range of practitioners with significant experience in challenging unlawful immigration detention and pursuing civil damages claims arising out of detention under the Immigration Acts.  Our members have been instructed in many of the leading cases over the past decade and have helped shape this fast moving area of law. Our members are also experienced in negotiating settlements in the best interests of clients and in working proactively with solicitors to do so at the earliest possible stage in litigation.