David Rhys Jones

David Rhys Jones

David Rhys Jones is a policy advisor at the Helen Bamber Foundation. David has worked with refugees and asylum seekers for over 25 years. He has monitored the detention of torture survivors in the UK since the Detention Centre Rules were introduced in 2001. The Helen Bamber Foundation was founded in 2005 as a collective of human rights specialists who respond with compassion and creativity to the legacy of cruelty.

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Razor Wire by Derek Bridges

HM Chief Inspector of Prisons report on an unannounced inspection of Dover Immigration Removal Centre (IRC) between 3–14 March 2014 (published 7 July 2014) once again highlights critical concerns surrounding Rule 35 of the Detention Centre Rules 2001.

Dover IRC is generally commended, although its atmosphere appears to remain that of a prison rather than an immigration detention centre – the distinction may be a fine one.  Continue Reading…

The Centre for the Study of Emotion and Law (CSEL) has recently collaborated in a new article Non-clinicians’ judgments about asylum seekers’ mental health: how do legal representatives of asylum seekers decide when to request medico-legal reports? by Lucy Wilson-Shaw, Nancy Pistrang and Jane Herlihy, which considers decisions made by immigration lawyers in deciding whether to refer clients for psychiatric assessment.

Legal aid restrictions mean that speculative medico-legal reports are out of the question but gauging one’s clients’ mental health is important for a number of reasons. Credibility invariably plays a part in applying the legal aid merits test, for example. Does poor mental health assist in the documentation of trauma which, in turn, corroborates allegations of past persecution? Is the client fit to be interviewed or give evidence? How will s/he bear the court process generally? Do mental health issues go to articles 3 and/or 8 when considering return?

Paragraph 208 of the UNHCR Handbook states that, in cases concerning applicants with mental or emotional disturbances

“[t]he examiner should … whenever possible, obtain expert medical advice. The medical report should provide information on the nature and degree of mental illness and should assess the applicant’s ability to fulfil the requirements normally expected of an applicant in presenting his case…”

UKBA, however, expects the applicant (through his or her legal representative) to commission such reports. Interviews conclude with a warning that if such evidence is not provided within five days a decision may be made without it. Failure to obtain such medical evidence is then often taken by UKBA as evidence that the claimed medical issues do not exist.

Much therefore hinges upon a legal representative’s ability to accurately assess such ‘mental or emotional disturbance’. But lawyers are not doctors. How well equipped are they to decide whether or not to instruct a medical expert?

The legal representatives interviewed for the study were highly experienced and motivated lawyers, most of whom had received training about mental health issues and all of whom appear to have demonstrated a marked degree of empathy. However, one of the most striking findings of the study was that legal representatives in this study were making decisions about the presence of mental health problems in their clients based on their lay knowledge of mental illness and their own responses to the presentation of the client, including ‘gut instinct’. There is an important side issue here: where do those ‘gut instincts’ come from? To what extent is the decision process driven by the psychological well being of the interviewer on the day? Hearing such testimony over time may well have an effect on anyone. Feeling overwhelmed by a suicidal client, for example, may drive a referral but also highlights important self-care needs. One need not become ‘case-hardened’ or ‘a soft touch’ if proper support is available.

Most asylum lawyers keep some sort of ‘PTSD check list’ in mind following the plethora of case law on the subject (AE & FE, HE DRC, HK, HH Ethiopia, Y Sri Lanka) but this report reveals that apparently ‘obvious signs’ are invariably no substitute for professional diagnostic skill. Indeed, the absence of such signs was perceived by some as indicating no mental disturbance or even that their client was being untruthful. This is critical since ‘lack of credibility’ often plays a part in the decision to decline funding on the grounds that the case lacks merit. Furthermore, while some signs of PTSD were clearly identified by lawyers in the study, other mental health issues such as depression were missed, or ignored on the basis that the presentation of such evidence to the courts would have little or no impact upon the outcome. Legal representatives did recognise that PTSD was likely to be ‘weighed in the balance’ by judges, but perceived that ‘mere’ depression was not. As the authors point out, however, depression frequently has a significant impact upon the nature of and capacity to recall; often a crucial factor in many cases.

Hopefully this article will be widely disseminated and read and legal practitioners will review their capacity to identify ‘mental or emotional disturbances’. This study is also recommended to clinicians who prepare medico-legal reports as providing an insight into what lies behind their instructions. There are, of course, important lessons for decision makers also. Indeed, the study may demonstrate a critical role for clinicians, with appropriate training and experience, in the asylum procedure.

The Court of Appeal has reviewed the meaning of ‘independent evidence of torture’ and the correct approach to the analysis of medical reports in R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521.

AM was unrepresented, her asylum application refused, her appeal lost and she was detained prior to removal. It looked pretty hopeless for her. Two medico-legal reports were nevertheless prepared by a registered nurse, working as clinical co-ordinator at the Helen Bamber Foundation, a fresh asylum claim was made and rejected and an application for judicial review followed.

The Secretary of State rejected the fresh claim and discounted the reports because of AM’s poor credibility. A High Court judge agreed: ‘It is clear …  that [the report writer] believed the claimant, taking everything she said at face value.’ He concluded that the fresh claim was a ‘try-on’. An appeal was then pursued to the Court of Appeal.

The ‘try on’ response to medical reports is seen all too often, but in this case the Court of Appeal held that conclusion to be wrong, even though the appellant was ‘totally lacking in credibility.’

The reports found AM to be

grossly traumatized … [but] … prone towards understatement and tends to require great encouragement to speak in a freely associative manner. However, once she begins to speak the content of her thoughts and feelings are intrinsically linked to her trauma.

A separate report by the same nurse practitioner documented nine areas of physical injury. One scar was “inconceivably caused by anything other than a blade or shard of glass,” yet the SoS rejected the report saying “… it is noted that the scars referred to in the report are slight and mainly restricted to the legs and there is no clear evidence that the scarring was obviously the result of torture or detention…” The Secretary of State also argued that “if [AM] had been detained and tortured as claimed, then the precise circumstances of these events would have been so searing as to have engraved” upon her memory.

It is difficult to explain how fundamentally misconceived this last piece of reasoning really is. Suffice it to say that it is totally at odds with all of the research and academic work on the impact of torture on memory, which actually suggests completely the opposite.

Giving the leading judgment of the Court of Appeal, Rix LJ disagreed that the nurse was merely taking everything AM said at face value:

[Her] reports constituted independent evidence of torture. [She] was an independent expert. … expressing her own independent views. … it is evident from her assessment that she believed that AM had suffered torture and rape and that those misfortunes had rendered her the “grossly traumatized” woman that she found her to be, with “feelings of deep and intense shame and self disgust”, “feelings of shame and stigmatization”, and a “fragile mental state”. Those findings are … interpretation of what she found, they are not the mere assertions of AM.

…[Her] belief was her own independent belief, even if it was in part based on AM’s account. … the judge was mistaken to suggest that such belief was merely as a result of ‘taking everything she said at face value’ … where the independent expert is applying the internationally recognised Istanbul Protocol… A requirement of “evidence” is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard …  is a matter of weight and assessment.

Rix LJ’s analysis is extremely important to the way in which the immigration tribunal (and UKBA case owners) engage with medical reports because the error on which the first instance decision was overturned by the Court is one that is not infrequently detected in immigration tribunal determinations:

The only reason ultimately given by the judge for not accepting [the nurse’s] reports as independent evidence of torture is contained in the last sentence of his para 24, where he said: “But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant’s account how they were caused” (emphasis added). If the judge was talking about [the nurse’s]  belief, that was plainly independent evidence, even if it depended in part on formulating her opinion in the light of AM’s account. If, however, the judge was referring to the “acceptance” by the Secretary of State, that is neither a matter of evidence, nor is it independent, and the judge would be adding a new requirement, not mentioned in the Guidance, to qualify the Secretary of State’s policy.

It is perhaps time for the immigration tribunal to move on from the extreme cynicism towards expert evidence expressed in the early and rather primitive starred determination of AE and FE [2002] UKIAT 05237. A handful of experts may be suspect, but the vast majority are not and are fully aware of their duty to the court. Proper respect is owed to fellow professionals.

The case of R (on the application of Y) v Secretary of State for the Home Department [2012] EWHC 1075 (Admin) may change the way in which the Home Office approach ‘historic’ trafficking cases. Although the case is

Y left China, was smuggled into Sweden and then stayed in an unknown country.  She was raped about twice a month by three Snakeheads.  She was then brought to the UK made to do housework and raped. Others were released when they paid their ‘debt’ but Y could not; she had lied to the Snakeheads.  Finally, an arrangement was made with a man called M who paid some money for her release.  She was not sold to M and had freedom to come and go.  She moved in with M and they are very happy together.

No exploitation

The Home Office argued that there was no commercial exploitation, no attempt to sell Y or to attempt to re-traffick her when she could not pay the debt.  In other words, there were no actions “for the purpose of exploitation.”  The judge rejected this as irrational:

…she was detained (“harboured” in the terms of the Convention definition) for a further six months during which she was forced to submit to sex and to work in the house without pay. The smuggling process had by then ended and the only reasonable conclusion is that the Snakeheads decided to use her by way of punishment or payment in kind. That means that she was being kept for the purpose of exploitation, and that is trafficking. The decision to the contrary cannot be supported.

The Home Office had also failed to address the period before entry to the UK and this failure also rendered the decision unlawful.

Still a victim of trafficking?

The decision letter also argued that as Y had had time for “reflection and recovery” she was no longer a victim of trafficking.  The Home Office’s supplementary guidance issued in 2009 looks at when a person “is” a victim.  Paragraph 9 states that,

… where a person’s circumstances do not require protection or assistance at the time of that assessment, the person is unlikely to be a victim…

Paragraph 10 considers whether:

the person was under the influence … of traffickers … [when] they came to your attention; whether the person requires a period to recover from the influence of traffickers; if the person has suffered physical or emotional wounds from the trafficking experience and requires time to recover.

Paragraph 18 concludes that it is possible to decide that someone “has been a victim …, but at the time their case is considered [but] that their specific circumstances do not [now] engage the Convention…”

The judge decided that this approach was wrong.   Paragraph 173 of the Convention’s Explanatory Notes, in relation to Article 13 states as follows:

One of the purposes of this period is to allow victims to recover and escape the influence of traffickers. A victim’s recovery implies, for example, healing of the wounds and recovery from any physical assault.  It also implies that victims have recovered a minimum of psychological stability.

Paragraph 183, in relation to Article 14 states:

for a victim to be granted a residence permit … the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory …

Was Y was still a victim of trafficking at the time of decision?  Does the Convention bar the conclusion that victim status may cease or that it prevents a consideration of whether that status subsists at the Reasonable Grounds stage?  The judge concluded that this consideration of current circumstances and need for protection and assistance is intended to apply at the Reasonable Grounds, as well as at the Conclusive Decision stage. Article 4(e) defines a victim as someone who is subject to trafficking.  Article 10(2) refers to a person who has been a victim of trafficking to ensure that she receives the assistance provided for in Article 12 to assist victims in their physical, psychological and social recovery. He goes on to comment that the Home Office cannot know what particular measures are required to assist the victim without considering the extent of her physical, psychological or social recovery.   The recovery and reflection period required by Article 13 is triggered when there are Reasonable Grounds to believe that the person is a victim.  The differences in tense are explicable by different consequences: after the recovery and reflection period, the assistance and protection is not absolute or never-ending, but is limited to the need to assist victims in their physical, psychological and social recovery and must be tailored to their personal situation.

The Convention, far from prohibiting consideration of current circumstances at the Reasonable Grounds stage when those circumstances appear to have significantly changed (i.e. trafficking has become ‘historic’), requires consideration to take place in order to comply with the duties under Articles 12 and 14.

This matches with what we know about trauma: a person survives it but never returns to what they were.

Turf war’s genesis

David Rhys Jones — 

Pierce Glynn and Stephen Knaffler QC have broadened the path (pun intended*) with SL and Westminster City Council (The Medical Foundation and Mind intervening) [2011] EWCA Civ 954. The case concerns a failed asylum seeker who, following a period as street homeless and a suicide attempt, was admitted to hospital for several months as a voluntary psychiatric patient. Westminster Social Services assessed that on discharge he would need various services including weekly meetings with his social worker, the support of a “befriender” and counselling services from gay support groups but that this did not amount to “care and attention” and so there was no duty to accommodate him under s.21 of the National Assistance Act 1949 (a statute described as by Laws LJ, with splendid self deprecation as ‘convoluted and somewhat difficult to unravel’).  The Court of Appeal has allowed his appeal finding that these assessed needs did amount to care and attention.

This is another round in what Laws LJ calls

“an extended debate as to the location of the boundary between the respective statutory responsibilities of local authorities and NASS to provide accommodation for destitute asylum seekers: a debate described by Baroness Hale at paragraph 28 of M v Slough BC as “an inverted and unseemly turf war between local and national government.””

Another round but I have no doubt that they will keep slugging away for some time yet.  The turf war goes back to 1998 (R v City of Westminster and others ex p M, P, A and X [Ex p. M (1998) 30 HLR 10]) and pre and post dates NASS.   I doubt that this case means the end of that war or even the beginning of the end.  Pressure on local authority budgets continues to squeeze and I suspect that running such cases is always seen as a win-win.  Either the authority’s case is accepted or it has grounds for demanding more from central government.

Two questions have been answered: what is meant by ‘care and attention’ and what by ‘not otherwise available’?   The first is fairly straightforward: support does not need to be particularly intense to constitute care and attention and nor is it limited to acts done by the local authority.

The second question is less clear. There was some hope by the Interveners that the boundary could be pushed for “the provision of accommodation as reasonably required in order for care to be furnished in a way that fully meets the claimant’s needs.” Laws LJ declined to apply that construction to the language of the statute to but did accept that local authorities must accommodate under section 21 unless it would be “reasonably practicable and efficacious” to supply the care services without giving housing.  On the facts, and in the absence of NASS support which thereby rendered the claimant destitute, the Court found that given Mr L’s mental health condition it would be “absurd to provide a programme of assistance and support through a care coordinator without also providing the obviously necessary basis of stable accommodation.”

Undoubtedly the link between mental health needs as a ‘necessary basis for stable accommodation’ without which ‘assistance and support’ are unlikely to be ‘reasonably practicable and efficacious’ is important and goes a long way to potentially recognizing the complex needs of vulnerable people.

Finally, it is worth mentioning a very good write up of the case over at Nearly Legal, the housing law blog.

* When reading lengthy judgments I always like to keep awake by looking for names for space ships for Iain M Banks’ sci-fi Culture series. Thanks to Laws LJ for this one.