The day before our client’s case was listed at the High Court, the Home Office conceded that they had unlawfully detained her for 6 months. Her immigration history in the UK displayed clear indicators of trafficking and abuse; despite this she was held in immigration detention to the detriment of her mental and physical health. So what went wrong?
Our client is a Chinese national who was first discovered in the UK in 2016 during a police raid of a brothel in North Yorkshire. She did not have a passport and she had overstayed her visitor’s visa. She was distressed; complaining of debt and evidently had no family or friends in the UK. These are all clear indicators of trafficking, as detailed in the Home Office policy on ‘Adults at Risk’. In spite of this, she was not referred through the National Referral Mechanism (NRM) and she was held under immigration powers. Home Office records show concerns that she may have been a victim of trafficking but as our client did not mention anything no further investigations took place.
She was detained in Yarl’s Wood immigration removal centre; however, due to a shortage of beds, she was released after a week.
It was some time until she was found once again in April 2018 working in a massage parlour, this time in Wales. Having failed to report to the Home Office, she was treated as an absconder and re-detained with removal proceedings brought against her.
Suitable for detention?
The NRM exists to identify potential victims of trafficking and as such safeguard them from further harm. It remains clear that our client displayed numerous traits that were indicative of trafficking and abuse, but she was not referred through the NRM when she was first discovered and her circumstances in 2016 were not considered when she was re-detained in 2018.
Another measure which exists to assess a person’s suitability for detention is a Rule 34 assessment, which, according to the Detention Centre Rules 2001, is supposed to take place by a Doctor within 24/hours of that individual’s detention.
Our client’s assessment did not take place within that time frame and, when the Rule 35(3) report was eventually released, her scars were identified as those consistent with her claims of burning by boiling water. She would often relive this trauma whilst in detention, displaying erratic behaviour; she would be seen screaming in the garden late at night and often be wandering around the centre in a state of undress. There were also two recorded incidents of self-harm and she continued to reject food, missing 39 breakfasts, 36 lunches, 30 dinners, all despite the fact she had been placed on Assessment, Care in Custody & Teamwork (ACCT), the Home Office’s policy for observing persons at risk.
Despite these distressing symptoms, the detention centre appeared unsympathetic. Twice she was reprimanded and given warnings for claiming to have visions of a man burning her, and she was told that if she was in fact mentally unwell, she would be sectioned under the Mental Health Act and held indefinitely.
Having been identified as in need of a psychiatric assessment in August 2018, there was a delay of more than a month before she was actually seen by a medical professional. In their report, the psychiatrist supported the view that she had become entirely “decompensated in the context of her detention” and that she was suffering with PTSD, depression and displayed psychotic and agitated symptoms. She was placed on anti-depression and anti-psychotic medication.
The first time the Home Office considered that our client may have been trafficked to the UK was when she submitted her asylum claim, despite the fact that when she was found by police in 2016 and later in 2018 she had displayed traits commonly associated with victims of trafficking.
Even at this stage her detention continued and we had to submit multiple requests for disclosure which the Home Office resisted even in response to two court orders. When we finally received disclosure of her Rule 35 report and psychiatric assessment, it was revealed that throughout detention her mental health had been progressively “decomposing”.
It was only once we served the Home Office with further independent medical evidence that she was released.
We submitted that our client had been unlawfully detained from 11 April 2018 to 8 October 2018.
The Secretary of State accepted full liability in our client’s case on the 11 February 2019, a day before it is was listed for trial. Our client should never have been held in detention as an “Adult at Risk” and she is set to receive damages for the 6 months she was detained.
Sadly, our client’s experience is not uncommon. This is just one snapshot of the failures of the “Adults at Risk” policy. Early this month, Freedom from Torture commented on the fact that only 6% of vulnerable detainees were released from immigration detention, despite being identified as victim of torture, sexual violence or trafficking. The Joint Committee on Human Rights conducted this report on Immigration Detention to identify the ways that conditions in detention and the treatment of detainees can be improved, with a particular focus on the failings of the “Adult at Risk” policy in safeguarding those that lack mental capacity.
The client in this case was represented by Shalini Patel, a solicitor in Duncan Lewis’ Public Law department, with Stephanie Harrison QC, Louise Hooper and Emma Fitzsimons of Garden Court Chambers acting as counsel.
Duncan Lewis Public Law Solicitors
The Duncan Lewis Public Law department continues to be recommended by Legal 500 with the 2019 edition reporting its 'strong presence in this area of the law, making a particularly dominant contribution in immigration, asylum and prison law.'
The Public law team has experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court. A particular focus is the team’s work handling cases of the deprivation of British citizenship and deportation threats, with a niche specialism in challenging the treatment of immigration detainees and other marginalised communities.
To contact a specialist member of the public law team, call 033 3772 0409.