The UK High Court in the case of Medical Justice v SSHD found the Secretary of State for the Home Department to have issued unlawful statutory guidance and policies in relation to the way victims of torture are detained in immigration detention centres.
The case was brought by Medical Justice, a charitable organisation that advocates for victims of torture, on behalf of seven individuals who had been detained in immigration detention centres across the UK. The group included victims of human trafficking, a man who was kidnapped by the Taliban and two men tortured because of their sexuality.
UK immigration law sets out that a person may be placed in immigration detention while a claim for asylum or protection, or some other basis for remaining in the UK is being processed. An exception to detention however may be granted in “very exceptional circumstances”, one such instance being where an individual is a victim of torture. S59 of the Immigration Act 2016 introduced the statutory concept of those “particularly vulnerable to harm if they were to be detained or remain in detention”. In pursuance with this section the SSHD produced a statutory guidance the “Adults at Risk in Immigration Detention” (AARSG) and certain policies to set out the process by which the people who may be considered “particularly vulnerable to harm” are identified and their circumstances assessed.
Medical Justice brought this case to challenge the legality of the AARSG. In particular they claimed that the United Nations Convention Against Torture definition of torture by which peoples claims were assessed was not only contrary the definition in the Detention Centre Rules (DCR), in particular R35, but was unlawfully restrictive and resulted in the unlawful detention of victims of torture.
The previous case of EO and Others v SSHD saw Burnett J define torture under the Detention Centre Rules. This case saw the judge take into consideration the purpose of the policy and determine there to be “no reason of sufficient weight to depart from… the common understanding of the word ‘torture’”. Burnett J then set out a definition which came to be known as ‘EO torture’. This definition holds “any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third party has committed, or intimidating or coercing him a third person, or for any reason based upon discrimination of any kind” to amount to torture for the purposes of the DCR.
Mr. Justice Ouseley found in favour of Medical Justice and held aspects of the AARSG in relation to the definition of torture to be unlawful. He held that “for the purpose of the AARSG, the experience of torture is an indicator of particular vulnerability to harm in detention; the purpose of its definition is to serve as an indicator of that vulnerability… So the AARSG thus formulated, 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 vulnerable to harm in detention”. Furthermore Ouseley J held it not to be “rational to require a doctor carry out an investigation into or reach a judgement on the political background to the severe pain and suffering” of individuals.
In his judgement Ouseley J noted that while the SSHD is prohibited from reverting to the UNCAT definition of torture she is not compelled to adopt the EO definition. He proposed however that any adopted definition to rightfully determine the vulnerability of individuals being placed in immigration detention must consider the circumstances of powerlessness they have endured. Referring to the expert evidence produced in the case, the judge determined that this sense of powerlessness must be “over and above that which is inherent in” all circumstances of severe pain and suffering to indicate a particular vulnerability to harm in detention and outlined that this heightened sense of powerlessness may be related to “the duration of the experience, the severity of pain and suffering all other circumstances in which it was inflicted, which does not exclude that the identity of the perpetrator may add to the trauma of the experience”.
The Court also considered the issue of whether the pubic sector duty in s149 of the Equality Act 2010 had been fulfilled. However it was not possible for the Secretary of State for the Home Department to reach a lawful view on the equality duty without understanding the true meaning of the policies in the first place. The equality duties coud be considered in the preparation of a new AARSG.
With 226 victims of torture suspected to have been unlawfully detained in 2016 and the appropriate form of relief to be determined upon another hearing the full ramifications of this judgment are yet to be seen.
Click here for the full judgment.
Click here for a report on the case.