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Shaw Report on Immigration Detention: A Review (21 August 2018)

Date: 21/08/2018
Duncan Lewis, Legal News Solicitors, Shaw Report on Immigration Detention: A Review

Among his colleagues, Stephen Shaw tells us, he would refer to his follow-up review as “marking the Home Office’s homework”. In this report, dubbed Shaw 2.0, the senior civil servant looks at the extent to which the Home Office has responded to his earlier report, published in January 2016 (which we’ll call Shaw 1.0), in which he had heavily and comprehensively criticised the Home Office for its treatment of vulnerable people in detention.

Here, Patrick Page, senior caseworker in the Duncan Lewis’ Harrow Public Law Team, and editor of No Walls, takes a look at some of the salient aspects of Shaw 2.0, rounding off with an assessment of the statement made by Home Secretary Sajid Javid which accompanied the report’s release.

Rather than focus on statistics, which is of equal importance but has been done elsewhere, the focus of this article is on language use and the clear failure of the Home Office to address the criticisms made in Shaw 1.0.

A Frustrated Teacher

A tone of restrained disappointment rings through Shaw 2.0. The language reminds one of a teacher who has received homework from a student with whom he is losing patience, but just can’t risk upsetting. Shaw has bridled his tongue, but is champing at the bit: he describes one reform as “welcome so far as it goes”, but another “has not been implemented as I envisaged.” Shaw says he’s “heartened by plans” for one development, encouraged that “work is underway” in another, and he finds some consolation in the fact that “the spirit” of one of his recommendations was “partially accepted”. This master is desperate to find the strengths in a poor essay, but it doesn’t take a genius to read between the lines.

Adults at Risk Policy: No Significant Difference

Shaw’s main findings provide little cause for optimism. The civil servant finds that it is “not clear” that the government’s Adults at Risk (AAR) policy - which was supposedly promulgated to respond to criticisms raised in Shaw 1.0 - is “yet [to have] made a significant difference” to the number of vulnerable people detained. Indeed, Shaw includes the observations of organisations such as the Association of Visitors to Immigration Detainees (AVID) and Bail for Immigration Detainees (BiD) that the AAR has led to more vulnerable people being detained, and a worsening of health in detention.

Redefining Torture: Linguistic Casuistry

One clear instance, mentioned by Shaw, in which the AAR actually weakened safeguards against the detention of vulnerable people, occurred where caseworkers and medical professionals were instructed to disregard torture carried out by non-state agents when assessing an individual’s vulnerability in detention. Along with the organisation Medical Justice (instructing law firm Bhatt Murphy), our clients successfully challenged the policy, and the High Court found that there was simply “no rational or evidence base” for the amended, restricted, definition. The redefinition of torture in this case was an act of blatant opportunism, which resulted in hundreds of victims of torture being unlawfully detained, before the court intervened to find the policy unlawful.

Rule 35: No Improvements

Shaw also criticises the working of Rule 35 reports. These are full mental and physical examinations, carried out by medical practitioners, in order, supposedly, to bring vulnerable detainees to the attention of those authorising detention. Shaw includes findings that these reports are “routinely rejected for minor errors” and “enjoyed the confidence of neither the doctors who complete them nor the caseworkers who receive them”. Again, Shaw’s disappointment is tangible. Noting that he had criticised Rule 35 in his first report for not doing “what is was intended to do”, he concludes disappointedly that “nothing I have seen has suggested any fundamental change to this position.”

Healthcare Catch 22

Shaw then turns to healthcare, noting “considerable patient dissatisfaction” and reports findings from organisations Medact and Medical Justice that there have been “no significant improvements” and that healthcare in detention “continue[s] to be inadequate and inappropriate” respectively.

Shaw’s observations here are particularly interesting. He found a level of “desensitisation” with regards to poor sanitary conditions among long standing members of healthcare staff. The issue of desensitisation deserves more attention.

As the BBC Panorama exposé of Brook House detention centre uncovered, some healthcare staff become so desensitised that they are willing to cooperate in the abuse of detainees by staff. In the BBC documentary, a nurse is filmed agreeing not to report a use of force, where, as captured by the undercover reporter, an officer has strangled a detainee. It seems the reputation of these sordid centres makes it hard to recruit medical professionals, or to keep them on board, which results in a decline in healthcare quality. Shaw observes the consequences of this vicious circle at Yarl’s Wood, the infamous women-only detention centre in Bedfordshire.

Shaw also quotes criticisms and suggestions made by the British Medical Association (BMA) in its report “Locked up, Locked Out” but, strangely, he fails to mention organisation’s conclusion that immigration detention should be “phased out” completely.

Caseworking: Distance and Dehumanisation

Shaw’s findings on Home Office caseworking processes also deserve attention. He is “struck” by the fact that there are no “single case owner[s]” and, instead, “assessments on individual vulnerability are made at different decision points, by different staff with different knowledge, skills and training.” Shaw demonstrates the flawed nature of Home Office caseworking with the case of a detained 77 year old Bangladeshi woman he encountered at Colnbrook detention centre, whose detention left him “utterly bemused and appalled”. Shaw describes this lady, who was eventually released, as:

‘clearly very old, frail, in poor health and not remotely suitable for detention...this case sums up for me the inability of the current system to reliably recognise vulnerability indicators and act in a proportionate manner.’

In this chapter, Shaw rightly alludes to one of the most disturbing characteristics of detention: the manner in which the system feeds off and perpetuates the dehumanisation of both the targets and the operators of the system. He strongly advises that all caseworkers who make decisions resulting in detention should meet the detainees face-to-face, and should spend time on secondment or training in detention centres in order that they “understand more about the operational realities of detention and the impact their decisions have upon detainees.” Revealingly, one caseworker who had been inside a detention centre, told Shaw “somewhat ruefully” that:

‘her job had been easier before the visit as it had been possible to consider detainees just as case files rather than as people.’

Detention of Pregnant Women: Three Days too Many

One of Shaw’s most concrete recommendations in his 2016 report was that there should be an “absolute exclusion” on the detention of pregnant women. Staggeringly, this recommendation, which had the support of the House of Lords, medical professionals and detainee welfare organisations, was, of the original 64 in Shaw 1.0, one of only five recommendations that that government explicitly rejected.

Instead, on 12 July 2016, Theresa May imposed a 72 hour limit (or a week with ministerial authority) on the length of time a pregnant woman may be detained. In consequence, between July 2016 and November 2017 (the dates for which we have figures), 73 pregnant women have been through the trauma of being arrested and transported to detention centres where they live in horror of being removed from the UK at any time. Only 15 of these women were eventually removed from the UK, meaning that the detention of pregnant women is not only a harmful act, but, judged against the Home Office’s own agenda, pointless.

No Walls has covered this in further detail elsewhere. Shaw concludes that he is still of the view that “it would assist decision making if the default position were to be an absolute exclusion of pregnant women from detention.”

Staff Culture: Out of Sight, Out of Mind

Shaw introduces his findings on oversight and staff culture boldly, describing the “catalogue of recent scandals involving institutions that care for the vulnerable” as a “long and depressing one”. He astutely observes that “what all had in common was the power imbalance between staff and those in their charge.”

After the scandal of verbal and physical abuse of detainees by officers at Brook House uncovered by the BBC in September 2017, and, previously, similar exposés at Yarl’s Wood and the former detention centre at Oakington, a forensic examination of staff training was well overdue. This is a view shared by Professor Mary Bosworth, who collaborated with Shaw on some aspects of the report, and who states that:

‘[detention] officers are both the primary resource and risk for the sector.’

Shaw’s outline of recruitment procedures are detailed “so far as they go” (as he might say), but there are some major gaps. He fails to consider the fact that many officers are ex-military, and so react to situations in a way that is inappropriate for a population who have complex care needs.

More disappointingly, having identified that the power imbalance in these centres is at the root of the scandals, the only concrete recommendations he makes about staff culture are that body cameras should be worn, that there should be more staff, and that the Home Office should “strengthen its own assurance processes to examine adherence to professional standards and staff culture in IRCs”.

An Inherently Brutal System

With all due respect, this is pure guff. However many body cameras might be worn by however many staff, and whatever assurance processes are put in place, immigration detention amounts to the deprivation of liberty for administrative ease. These women, children and men are being locked up in appalling conditions and ill-treated indefinitely because, in essence, they do not have the same rights as British citizens. Generally from war-torn or impoverished nations, they are considered valueless by the state and have limited access to justice and severely restricted rights. The imbalance in power is one of the starkest and most inseparable characteristics of immigration detention. Since this imbalance is the root cause of the abuse, immigration detention will always be dogged by scandals.

Shaw 2.0 is a valuable resource for arguing that detention is an intrinsically unjust and brutal affair, even if the author doesn’t always spell it out for us, but this report hardly scratches the surface of this rot. As Shaw admits himself, “independent oversight alone is never likely to prove sufficient when malpractice is conducted out of sight.” So long as the system continues, detained people will be abused, and most of it will happen under the radar, year after year, in a thousand quiet humiliations.

Javid's Statement: The Dialect of Dehumanisation

Shaw 2.0 was released at 3pm on Parliament’s last day of term, a cowardly act to ensure minimal Parliamentary scrutiny. On its release, the new Home Secretary, Sajid Javid, issued a statement announcing a pilot scheme “to manage vulnerable women in the community who would otherwise be detained at Yarl’s Wood”; to work on the “progress” by improving support for vulnerable people in detention, to publish more data on immigration detention, and to lead a “a new drive on dignity in detention”.

While Javid’s statement was presumably made in order to “own” Shaw 2.0, Javid’s statement fundamentally undermines itself by being articulated in the Home Office’s particular dialect of dehumanisation, that subtly othering language deployed by the current government whenever discussing immigration.

It needs to be unpicked.

“Illegal migration” is used three times, a term which is effectively a value-judgment on irregular migration, and attempts to reduce individuals caught in this bracket to “illegals” (a terms employed by Javid’s predecessor Amber Rudd).

Javid talks of “managing” the women who would otherwise be detained at Yarl’s Wood; a patronising term that removes all agency from those involved in the pilot, and is generally used more appropriately to discuss livestock. And he uses the term “in the community”, perpetuating the idea that those in detention centres are not in the community; they are “the other”, and do not deserve justice.

Javid seizes on Shaw’s phrase “work in progress” and brazenly reworks it to suggest that there has been genuine “progress”, which, as Shaw 2.0 report makes clear, is hard to find.

Finally, Javid’s eye-catching “drive on dignity in detention” is a scam. It seems to be based on three pillars: (1) a reduction in overcrowding, (2) the modernisation of toilets; and (3) allowing detainees to Skype friends and relations. The first two are based on litigation brought by clients of Duncan Lewis, which means that, effectively, the only freely made reform in this grand gesture, this solemn drive for dignity in detention, is the provision of Skype to detainees. But even this latter provision stops far short of the wide access to social media recommended by Shaw in both Shaw 1.0 and Shaw 2.0.

Ultimately, there can be no “dignity in detention” beyond that which is already rooted and preserved in the people detained. The real indignity rests with the system, and with those who support and operate it. A regime in which people are deprived of their liberty, and held up as examples in order, as Javid puts it, “to encourage compliance with our immigration rules”, is inescapably undignified. How dare the Home Office claim to be the purveyor and guarantor of the dignity of the very same people it systematically oppresses?


Free Movement: Shaw Review 2.0: follow-up report on detention of vulnerable migrants published

BID: BID's response to the government's statement on the second Shaw Review

Liberty: Stephen Shaw's new immigration detention report is essential summer reading for MPs

Scottish Detainee Visitors: The wait is over, the second Shaw Review is finally published

July 2018 Stephen Shaw: Follow up report on Welfare in Detention of Vulnerable Persons

Jan 2016 Shaw Report: Review into the welfare in detention of vulnerable persons

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