What is Torture defined as for the purposes of detaining an individual under Immigration Powers (4 November 2013)

The Home Office’s own policy in relation to excluding persons from detention apparently makes it clear that detention is not appropriate for those in respect of whom there is independent evidence of torture.

Sadly, all too often, Duncan Lewis act for clients who indeed have clear evidence of torture and yet they remain in detention for significant periods of time.

Duncan Lewis recently represented a client who was a victim of horrific and sustained attacks in his home country on account of being a gay man. His injuries including significant burns; scalding and branding.

The attacks did not emanate from the state but from a violent individuals in his home village. The Home Office initially, rather than releasing such a traumatised individual, decided to detain him and reject his claim of torture because the harm was not inflicted by the State. Duncan Lewis issued judicial review proceedings to challenge detention and Mr Justice King of the High Court refused the claim, agreeing with the Home Secretary.

Duncan Lewis appealed to the Court of Appeal arguing that King J erred in holding that it is reasonable for the Secretary of State to restrict acts of torture to those acts which emanate from the state for the purposes of immigration detention and in particular for the purposes of the Detained Fast Track.

We argued that the definition of torture as set out in the United Nations Torture Convention of 1984 (UNCAT) is not the correct definition of torture for the purpose of excluding an asylum seeker from the Secretary of State’s Detained Fast Track Process (‘DFT’). We maintained that the purpose of the Detained Fast Track Suitability Exclusion Criteria is to remove vulnerable individuals from DFT. For these purposes there was no material difference between a persecuted homosexual who has been tortured by say a policeman and the same individual being tortured by non state actors. We argued that the individual coming to the UK seeking international protection – finding him or herself thrown into a cell – would suffer the same trauma when being detained, having gone through such painful experiences prior to fleeing their country.

The Secretary of State now accepts that the UNCAT definition of torture within Chapter 55 of the Enforcement Instructions and Guidance and for the purposes of the Detention Rule 35 policy is inconsistent with the judgment of Burnett J in the case of EO & Others v SSHD [2013] EWHC 1236 (Admin).

In October 2013, Lord Justice Mcfarlane, of the Court of Appeal, granted permission in our client’s appeal. The Home Secretary, as a result of our intervention, had already released our client. Our client has in fact since his release, been granted refugee status in the UK. Following the grant of permission, the Home Secretary is proposing to settle the unlawful detention matter by offering damages to our client.

Although our client has now finally been given international protection as a refugee, and may well be awarded significant damages for his detention; his incarceration over several weeks was entirely unjustified.

It should not require Court intervention before the Home Secretary realises that detaining victims of serious ill treatment or indeed torture, in the wider sense of the definition, is plainly wrong. Duncan Lewis continues to act for such victims.

Toufique Hossain, solicitor for the client instructed Christopher Jacobs as counsel.