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The Punishment Room: Challenging the Abusive Use of Segregation in Immigration Detention (13 March 2017)

Date: 13/03/2017
Duncan Lewis, Main Solicitors, The Punishment Room: Challenging the Abusive Use of Segregation in Immigration Detention

Pamela* had just had a shower and was still in her underwear, applying moisturiser, when the immigration officers came into her room to remove her from the UK. Our client refused to be taken to the airport, as she still had an outstanding application for leave to remain in the UK, so the officers tried to remove her by force, one grabbed her neck and head, pushing these down towards her chest and blocking her windpipe. ‘I was filled with fear and tried to get out of her grip,’ Pamela told us, ‘I kept telling her “I cannot breathe” but she continued to push my head towards my chest. Eventually I stopped trying to get out of her grip and fell to the floor’.

The officers decided not to remove Pamela that day but escorted her to the Kingfisher Isolation Unit. Pamela tells us that 10 officers corralled her there, hands in tight handcuffs behind her back. Pamela weighs about 7 st and is about 5 foot tall. Despite its name, the Kingfisher Isolation Unit is no bucolic haven. It is where, at the notorious women-only detention centre in Bedfordshire Yarl’s Wood, detainees are locked in a prison within a prison, separated from friends, left alone with their demons.

Pamela, a victim of torture, describes her cell as small, dark, and cold, furnished only with a rusty toilet adjoining the bed. Why was Pamela languishing distraught and confused in this little Bedlam? For ‘non-compliance’, she was told.

Three months later Pamela found herself back in the isolation unit. Again, this segregation was completely unprovoked, and was apparently in ‘preparation for imminent removal directions…due to previous non-compliance’. The previous non-compliance was ‘removing her clothing and covering herself with oil’. This is otherwise known as moisturising after a shower.

Pamela is one of thousands of detainees being placed in isolation for dubious reasons. Rule 40 of the Detention Centre Rules 2001 provides for such segregation of detainees ‘where it appears necessary in the interests of security or safety’. This rule also stipulates that in a contracted-out detention centre such as Yarl’s Wood (managed by Serco), removal from association may only be authorised by a manager of the centre in the case of urgency, and must otherwise be authorised by the Secretary of State. Pamela’s segregation cannot be justified as being in the ‘interests of security or safety’, nor can her segregation be described as ‘urgent’, though her segregation was not authorised by the Secretary of State.

The vague nature of government policy on removal from association combined with the lack of oversight in its application has created a dangerous vacuum, opening the practice up to abuse. In their powerful report ‘A Secret Punishment: The misuse of segregation in immigration’ (October 2015), endorsed by Royal College of Psychiatrists, the NGO Medical Justice found a ‘widespread use of segregation which contravened the Detention Centre Rules’. Detainees are placed in units with tender names such as the ‘Care and Support Unit’, ‘Eden Wing’, ‘Orchid Room’, ‘Lavender Room’ and ‘Elm House’ but ‘in reality their main utility is to contain risk rather than to provide care or support’. According to Medical Justice, removal from association is being used by detention officers unlawfully as a form of punishment, to manage detainees with mental health disorders, to manage detainees at risk of self-harm and as a means of aiding in the removal process.

The damaging effects of such isolation are well established. Medical Justice found that segregation leads to ‘increased rates of anxiety, social withdrawal, perceptual disorders, hallucinations and suicidal thoughts after relatively short periods’. For this reason, the practice is only used as an exceptional last resort in psychiatric hospitals, for the shortest time necessary. Incarcerated on Robben Island, Nelson Mandela was subjected to hard labour and daily humiliation, but he found his solitary confinement the ‘most forbidding’ aspect of prison life. In solitary confinement, Mandela wrote, ‘there is no end and no beginning; there is only one’s mind, which can begin to play tricks. Was that a dream or did it really happen? One begins to question everything.’ (The Long Walk to Freedom).

Her Majesty’s Inspectorate of Prisons (HMIP) has also criticised the way in which the power to segregate is being used in immigration detention. In an unaccounced visit to Colnbrook IRC, HMIP found segregation being used solely to aid removal while at Tinsley House IRC they discovered that segregation for this purpose was being employed as a blanket policy in a way that was ‘punitive and unnecessary’. At Brook House and Harmondsworth IRCs they uncovered the use of segregation as an ‘unofficial sanction for non-compliance…when there is no risk of harm to staff or detainees’. ‘This is a punishment room’, said one detainee at Harmondsworth.

In response, the Home Office has drafted guidance, a Detention Services Order (DSO), on ‘Removal from Association and Temporary Confinement’. This has been considered by the NGO Liberty, who slammed it for providing ‘no reassurance that the bad practice which has come to characterise this system will be mitigated’. In their response, Liberty outlines the disparity between the strict rules surrounding the use of segregation in the prison system, and its casual use in immigration detention. In prison for instance, segregation beyond 72 hours must be assessed by the Independent Review Board, while the DSO requires that any segregation longer than 24 hours need only be authorised by a senior manager at the facility. Moreover a prisoner who has been segregated longer than 72 hours has the right to make representations challenging their segregation, while in the DSO there is no such provision for detainees. That the DSO anticipates the possible isolation of a detainee for being ‘stubborn’ tells one everything about the mind-set behind the drafting of this policy.

On the 16 January 2017, Duncan Lewis Solicitors, acting on behalf of Pamela, were granted permission by the Honourable Mr Justice Andrew Baker to challenge the legality of the current policy and practice relating to the removal from association in detention on three grounds: (1) that the failure of the government to publish policy on the application of Rule 40 is contrary to the common-law requirements of clarity and transparency in relation to the exercise of such powers, (2) that the failure to provide detainees with a reasonable opportunity to make representations in relation to their removal from association is unlawful and, (3), that the decision to remove our client from association was unlawful in that it was not properly authorised.

Lewis Kett, a solicitor in public law department who is running the challenge, said as follows:

“The High Court has accepted that this challenge is an important issue affecting thousands of detainees. The current lack of guidance means that Home Office and detention centre staff have been given free rein to use segregation in a draconian and arbitrary way, simply to make their own lives more convenient. This has resulted in the power being used to segregate vulnerable individuals such as victims of torture as well as those deemed to be a suicide or self-harm risk. It is hoped that this challenge will result in systematic changes. Removal from association has become the norm rather than a last resort and this cannot be allowed to continue.”

This is the first time the legality of the policy and practice of removal from association in immigration detention has been challenged in litigation. It is a power over the powerless, and it is being abused. Dickens described removal from association as a ‘secret punishment which slumbering humanity is not roused up to stay’. Duncan Lewis Solicitors intend to be an exception to this rule.

*This is not our client’s real name. She wanted to share her story but to remain anonymous.

Lewis Kett is a Solicitor in the Public Law team. He regularly deals with challenging unlawful decisions of the UK government, with a particular interest in refugee law and immigration detention. In April 2016, he was the first trainee solicitor to be named the Times ‘Lawyer of the Week’ for his work in obtaining refugee status for a former Afghan interpreter who the UK had attempted to remove to Afghanistan.

Patrick Page, the author, is a Caseworker in the Duncan Lewis Public Law Department, he is accredited as a Level 1 Probationer Immigration caseworker and also writes about various human rights immigration and public law issues.

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