In a judgment handed down on the 10th October 2017, the Home Office was told that its policy regarding how it defines those who have suffered torture is unlawful, for the purposes of identifying those who are vulnerable and at risk in detention. The judgment could help prevent thousands of men and women, including victims of rape and trafficking, from being detained in the UK’s detention centres. The judgment will also enable potentially hundreds of detainees detained from 12th September 2016 – 7th December 2016, who had the unlawful definition of torture applied to them, to bring civil claims against the Home Office, seeking a declaration that their detention was unlawful and damages if they would not have been detained had the policy been applied correctly.
Mr Justice Ouseley told the Home Office unambiguously that their new policy was ‘unlawful and their actions upon it too were unlawful’, explaining damningly that the new policy had ‘no rational or evidence base.’
Who are the claimants?
The case was brought by seven survivors of torture who had been detained in the UK, including victims of sexual and physical abuse, trafficking, sexual exploitation, homophobic attacks and a child abused by loan sharks.
One of the claimants, a young man kidnapped and beaten with knives, sticks and a gun by the Taliban because he refused to be groomed into joining them, was told by the Home Office that his case did not meet the new definition of torture. (In fact, it did meet the definition in the policy as the Taliban can be classed as a terrorist group exploiting instability and civil war to hold territory.)
Another claimant, a young Vietnamese woman, who was beaten, cut and burnt by loan sharks trying to force her to repay her parents’ debt was also told that her experiences did not meet the new definition of torture.
The charity Medical Justice was also a claimant. Medical Justice had sent volunteer doctors to assist two of the victims of torture in detention.
What was the policy under challenge?
In September 2016 the Home Office advised medical practitioners, charged with preparing a report to document whether a detainee is a victim of torture, which will inform the Home Office assessing an individual’s particular vulnerability to harm in detention, that torture inflicted by non-state actors must not, in fact, be considered torture for the purposes of their examinations. The Home Office relied on a definition of torture found in the United Nations Convention Against Torture (UNCAT), a political document drafted to prevent the perpetration of torture worldwide, and sought to apply it to a purely medical assessment.
What was the context of the new policy?
This new policy followed a damning report by the senior civil servant, Stephen Shaw: ‘Review into the Welfare in Detention of Vulnerable Persons’. Shaw found that ‘many practices and processes associated with detention are in urgent need of reform,’ especially with regards to the detention of vulnerable people. The Government publicly accepted the ‘broad thrust’ of the report, only to quietly remove safeguards for victims of torture a few months later in the new ‘Adults at Risk’ policy.
What did Duncan Lewis Solicitors do?
The Public Law and Immigration Teams at Duncan Lewis Solicitors, committed to protecting vulnerable detainees, immediately brought a challenge to the new policy on the ground of irrationality. Is the shock of a non-state electric-prod weaker? Is it a consolation to know that the whip splitting your back is not wielded by a state agent?
What does the judgment say?
In November 2016, we obtained interim relief for our clients, and the Home Office was ordered to revert to the definition of torture in the previous policy. On Tuesday 10 October 2017, Ouseley J told the Home Office that the policy was unlawful on a number of accounts.
Ouseley J was clear in his finding that the distinction between state and non-state torture when assessing particular vulnerability to harm in detention “has no rational or evidence base.” adding, “there is no evidence that such a distinction relates to the relevant vulnerability. The evidence rather is that it does not.” Paragraph 153 of the judgment.
Ouseley J went further to say that the policy “would require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach.” Paragraph 192 of the judgment.
The High Court judge also noted that, by irrationally excluding victims of torture by non-state actors, the policy “falls short of meeting the statutory purpose which it is required to meet,” meaning that the Home Office failed to carry out the express will of Parliament. Paragraph 152 of the judgement.
What do we say of the judgment?
Lewis Kett, one of the solicitors leading the challenge on behalf of the Duncan Lewis claimants, said as follows:
“Today’s judgment means that those making decisions to detain should now be able to focus on the real question: whether the individual is particularly vulnerable to harm in detention. This was supposed to be the intention of the Adults at Risk policy following the Shaw Report’s damning critique, but the Home Office got it spectacularly wrong. Our clients have now finally been vindicated on this point.”
What do our clients say of the judgment?
One of our client’s, ‘PO’, has spoken to us about what the judgment means to him:
“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.”
Five of the Claimants were represented by Toufique Hossain and Lewis Kett (as lead solicitors), assisted by members of Duncan Lewis Solicitors Public Law and Immigration Teams including Monika Glowacka, Rachael Lenney, Nashwan Fazlani, Mbeko Sihwa and Harbinder Kaur Singh. We instructed Chris Buttler and Ayesha Christie as counsel, both of Matrix Chambers.
Medical Justice and the two other claimants were represented by Bhatt Murphy Solicitors, instructing Stephanie Harrison QC and Shu Shin Lu as counsel, both of Garden Court Chambers.