24 March 2019
The Home Office have issued updated guidance with regards to asylum claims in detention on 18 March 2019. You can access the published policy here.
The policy is not really that much different to the previous policies issued however, the salient points of the policy are as follows:
- The detention decision must always be made on the basis of the individual's particular circumstances and eligibility for detention;
- If at any time, it is concluded that a particular detainee's ongoing detention would not be appropriate, the individual must be released, with bail conditions appropriate to their particular circumstances;
- Detention is suitable in a few circumstances a few of which include a) that there is a prospect of certifying the claim as clearly unfounded and b) the initial basis of claim shows there to be prospects of certifying the claim as clearly unfounded and c) criminality.
Currently, my clients who are attending the Asylum Screening Unit are not being detained as a matter of routine unless something flags up in the Police National Database. However, coming weeks may show a spike in detention cases from the ASU.
In all cases, the policy reiterates that the Home Office must continue to manage the detained case according to detention policy.
In my experience, once detained the only two factors which may render the detention as unsuitable is establishing that the detainee is an Adult at Risk or a considerable delay in being able to remove the client. There is a whole policy in this regard which the Home Office currently use to make decisions.
Adults at Risk
There is, of course, an existing presumption in immigration policy that a person will not be detained. The adults at risk in immigration detention policy strengthens this presumption against the detention of those who are particularly vulnerable to harm in detention. However, detention may still be appropriate in an individual case when immigration control considerations outweigh the presumption of release, even for a person considered to be at risk. Although there is no statutory time limit on immigration detention in the UK, it is not lawfully possible to detain people indefinitely. Domestic case law is clear that the detention power can be exercised lawfully only if there is a realistic prospect of removal within a reasonable time-frame.
In all cases in which an individual is being considered for immigration detention in order to facilitate their removal, an assessment must first be made of whether the individual is an ‘adult at risk’ in the terms of this policy and, if so, the level of evidence (based on the available evidence, which may be limited to the individual’s account) indicating the level of the policy into which they fall. If the individual is considered to be at risk, a further assessment will be made of whether the immigration considerations outweigh any risk identified. Only when they do will the individual be detained.
Assessment: general principles
According to the Home Office published policy concerning Adults at Risk, the decision maker should answer the following questions to inform their decision:
• does the individual need to be detained in order to effect removal? See Detention – general guidance
o if the answer is no, they should not be detained
o if the answer is yes, how long is the detention likely to last
• if the individual is identified as an adult at risk, what is the likely risk of harm to them if detained for the period identified as necessary to effect removal given the level of evidence available in support of them being at risk?
If the evidence suggests that the length of detention is likely to have a harmful effect on the individual, they should not be detained unless there are public interest concerns which outweigh any risk identified. For this purpose, the public interest in the deportation of foreign national offenders (FNOs) will generally outweigh a risk of harm to the detainee. However, what may be a reasonable period for detention (in line with the Hardial Singh principle (Singh, R v Governor of Durham Prison  EWHC 1 (QB)) will likely be shortened where there is evidence that detention will cause a risk of serious harm. Where the detainee is not an FNO, detention for a period that is likely to cause serious harm will not usually be justified.
Who is regarded as an adult at risk?
An individual will be regarded as being an adult at risk if:
• they declare that they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention
• those considering or reviewing detention are aware of medical or other professional evidence which indicates that an individual is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention, whether or not the individual has highlighted this themselves
• observations from members of staff lead to a belief that the individual is at risk, in the absence of a self-declaration or other evidence.
The Home Office policy accepts that the nature and severity of a condition, as well as the available evidence of a condition or traumatic event, can change over time. Therefore, decision makers should use the most up-to-date information each time a decision is made about placing someone into detention, or continuing that detention.
The policy sets out indicators of risk which includes, serious physical disability; serious physical health conditions or illness; mental health conditions; torture victims; potential victims of trafficking or modern slavery; age, pregnancy, transsexual and intersex people along with other conditions.
The policy also sets out the "evidence levels" at page  which ranges from Level 1 to Level 3.
Level 3 sets our the requirement for professional evidence (for example from a social worker, medical practitioner or NGO). In this regard, the policy confirms that "caseworkers should not usually disagree with medical evidence unless there are very strong reasons for doing so - for example, a finding by an independent tribunal that rejects the same evidence or credibility concerns arising from other sources (such as an asylum casework decision). Such matters may be taken into account in deciding the weight that should be afforded to evidence and could result in a reconsideration of the weight of the evidence".
Furthermore, the Home Office confirm that "it is very unlikely that compliance issues, on their own, would warrant detention of individuals falling into this category. Non-compliance should be taken into account if there are also public protection issues or if the individual can be removed quickly".
The policy also considers immigration factors such as length of time in detention, public protection issues and compliance issues.
In my experience, if caseworkers want to establish that a person is at risk due to their mental health then only a medico legal report can establish this and any concerns by the Home Office's own medical practitioners at the detention centre are insufficient to satisfy the requirement to meet the Level 3 threshold. However, private reports can be very expensive and whilst the client is detained gathering funds for the legal fees and the private report can be a nightmare.
Therefore, only those vulnerable people who are able to secure funds whilst detained have a shot at being released which is no doubt concerning. In the past, I recall a number of NGOs would take referrals on and supporting letters would have been sufficient for a decision to release potential victims of torture.
There is a shortage of medico legal experts who are willing to attend the detention centre to prepare reports which creates practical problems. Furthermore, the slots allowed to the experts are so short that it is difficult to take instructions from the detainee especially if they are vulnerable.
There is obviously a lot of debate about detention of immigrants. There has been media attention about a detainee who died in immigration detention recently. The Guardian reported recently that:
The Home Office is under fire about how a “gentle and polite” man lost his life to a killer with a history of violence and mental health problems after officials locked them both up on the same wing in immigration detention.
An inquest which opened on Monday at west London coroner’s court is to explore the role of the Home Office, the Ministry of Justice, health professionals and detention centre subcontractors in the death of Tarek Chowdhury, 64, from Bangladesh, who was killed by Zana Assad Yusif, 33, from Iraq, at Colnbrook immigration removal centre near Heathrow in December 2016.
A further report, published on 21 March 2019, finds that the Home Office has utterly failed in its responsibility to oversee the safe and humane detention of individuals in the UK, that too often it does not follow its own policy and guidance, and that a series of safeguarding and case-working failures have led to people being wrongfully detained, held in immigration when they are vulnerable and unnecessarily detained for too long.
Hopefully, the unfortunate incident and media attention may bring about some changes in the requirement to establish that a person is an Adult at Risk.
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Naila Khan is an experienced Senior Immigration Advocate. She regularly advises clients on complex immigration issues.
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