Immigration detention has been a hot topic recently, in view of the Coalition Government’s promise to end the detention of children. This is obviously a welcome development. However, there are many other vulnerable immigrants who are regularly detained for immigration purposes and who are worthy of our collective concern.
Nearly 30,000 people are held in immigration detention in the UK every year. It has long been the Secretary of State (SSHD)’s own policy that vulnerable persons are normally considered suitable for immigration detention in “only very exceptional circumstances” . Vulnerable persons include children but also those suffering from serious medical conditions, the mentally ill, torture victims (where there is independent evidence of the torture), victims of trafficking, the disabled and pregnant women. They are deemed unsuitable for immigration detention because their detention requires particular “security, care and control” .
In reality many such vulnerable persons are unfortunately regularly detained in breach of this policy. For example, in criminal cases, the risk of further offending or harm to the public may make detention justifiable despite the fact that such an individual may be unsuitable for detention from a health point of view. Less justifiable is the detention of asylum seekers (who are often suffering from mental illnesses and/or who may be victims of torture) for their asylum claim to be heard under the accelerated “Fast Track” process.
The SSHD normally justifies immigration detention on the basis that it is short term with a view to imminent removal from the UK. There are also certain other safety measures in place. Rule 33(1) of the Detention Centre Rules 2001 requires that every detention centre should have a “medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983”. Rule 35 of the Detention Centre Rules 2001 relates to “Special illnesses and conditions (including torture claims)”. It provides that the resident medical practitioner must report to the manager on the case of any detained person who may have a mental or other illness and must make special arrangements for counselling or whatever appears necessary for the person’s supervision or care. It also makes provision for anyone who is suspected of being at risk of suicide to be placed under special observation for as long as that suspicion lasts and for a record of his treatment and condition to be kept throughout that time. The medical practitioner must also keep the SSHD regularly updated and provide them with copies of all medical reports. In 2008, the SSHD introduced the ACDT system which contains further detailed provisions for identifying detainees at risk of self harm and/or suicide and for providing them with support.
In theory, these measures may seem reasonable enough. In practice, the reality is more complicated.
Firstly, the SSHD regularly fails to follow its own policies and procedures. The use of detention is not restricted to those shortly to be removed and detainees are regularly detained for long periods of months and sometimes even years. (Unfortunately there is no statutory maximum period of detention). There are also regular failures to keep medical records and to provide the required adequate healthcare and support or to refer detainees externally for medical or psychiatric care where necessary. Medication is frequently stopped without reason and detainees report being given “paracetamol for everything”.
Secondly, in the case of mental health, immigration detention has been found to seriously damage it and to that extent the SSHD is fighting a losing battle. There are frequent reports of detainees suffering from Post-Traumatic Stress Disorder or depression. Statistics from the National Coalition of Anti-Deportation Campaigns obtained from the SSHD under the Freedom of Information Act 2001 paint a depressing picture. They confirmed a 25% rise in actual self-harm in 2009 compared to 2008, a total of 215 incidents of self-harm requiring medical treatment in 2009, compared to 179 incidents in 2008. They also confirmed a 13% rise in the number of detainees placed on "Formal Self-Harm at Risk" in 2009 compared to 2008, a total of 1,588 detainees placed on in 2009, compared to 1,404 in 2008.
The detention of vulnerable asylum seekers and migrants has been challenged at a policy level by many different organisations over the years. Some of the most active of these are Bail for Immigration Detainees and Medical Justice .
But more importantly for individual clients there are legal remedies available. Detention can become unlawful if the SSHD fails to show that detention is justified and to follow its own rules and policies. A shocking recent example is one of our cases where the SSHD detained a lady despite being aware that she was pregnant, had been diagnosed as suffering from post-traumatic stress disorder and was at suicide risk and it already having been independently accepted that she was a victim of torture (having been raped by her father in Cameroon). She also had a 9 month child with her and removal was not imminent. Once in detention, they failed to conduct a proper risk assessment and to manage her mental health properly. She was released in response to a letter before action pertaining to urgent Judicial Review proceedings. A pre-action letter relating to a civil claim for compensation has been submitted and a response is awaited; should the SSHD fail to accept liability and make a suitable offer of compensation, a civil claim for compensation will be lodged on her behalf in due course.
And compensation is available in such cases ….. In PB (Cameroon) v SSHD  EWHC 364 (Admin) detention of a potential torture victim for six months was declared unlawful on account of breaches of the detention centre rules and a failure to refer the Claimant to the Medical Foundation for the Care of Victims of Torture for assessment. In a subsequent decision the Claimant was awarded damages amounting to £38,000.