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Deaths in detention, Home Office legal duties and Rule 35

Deaths in detention, Home Office legal duties and Rule 35

Alois Dvorzac died in handcuffs in immigration detention in 2013. He was 84 years old, suffered from Alzheimers and he had been handcuffed for five hours by the time he died. It was a miserable, ignominious end to what Channel 4 has shown us was a rich and varied life. Yesterday tragic news emerged of another death in detention, this time at Yarl’s Wood. Nothing is yet known other than the deceased was a 40 year old woman and thought to be from Jamaica.

The Dvorzac incident shocked and horrified. The fact that he was white and of European origin added additional shock value for some: if these Home Office officials and security contractors are so out of control that they do this to him, what might they do to ‘us’ or our own elderly relatives? The case highlights the terrifying powers awarded to itself by the State. It shows also that the State cannot be trusted with those powers.

The reaction reminds me, though, of the apparently controversial Amnesty International campaign from last year, When You Don’t Exist:

Rule 35

One thing in particular jumped out at me from the Channel 4 report and it has been praying on my mind ever since: the way in which the Rule 35 report was ignored by the Home Office officials responsible for Mr Dvorzac’s detention. We know that it was received and that officials did nothing.

Rule 35 of the Detention Centre Rules 2001 requires that the doctor at the immigration detention centre “shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.” In this case a doctor did apparently write a Rule 35 report and it stated:

Frail, 84 yrs old, has Alzheimer’s disease … demented. UNFIT for detention or deportation. Requires social care.

Rule 35 also requires that “the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State” and that a copy of the Rule 35 be sent to the Secretary of State “without delay”.

There is also an accompanying policy document to elaborate on the treatment of Rule 35 reports. This is Detention Services Order DSO 17/2012. Paragraph 34 states that the Home Office case owner has two working days to respond to a Rule 35 report and must engage with the concerns raised and give reason for maintaining detention or ordering release. The case owner’s name and team must be clearly identified. The medical practitioner should be sent a copy of the Home Office response (para 26) and if the Rule 35 report is considered deficient in some way, clarification must be sought from the medical practitioner (para 32).

There is a very clear process in place for ensuring that Rule 35 reports are rapidly considered. Usually this will be by the allocated case owner at the Home Office but paragraph 29 of DSO 17/2012 has a clear process even where there is no case owner.

Failing safeguards

The original HM Chief Inspector of Prisons report that first revealed the tragedy stated that the caseworker responsible at the Home Office “failed to respond to the Rule 35 report on time and had had to be chased twice before he had replied”, then attempted to have Mr Dvorzac forcibly removed before he was declared unfit to fly. The Rule 35 report was submitted on 30 January 2013, the response was issued on 5 February and Mr Dvorzac died on 10 February. He had already been taken to hospital in handcuffs once on 8 February and had been handcuffed for five hours by the time he died.

Lawyers often find that in practice these supposed safeguards are ignored or manipulated in order to maintain detention. Officials seem to want people to be deprived of their liberty, as if they enjoy the exercise of power over others.

I am currently dealing with a case where a Rule 35 report was submitted to the Home Office by a doctor with a body map showing very extensive scarring to the detainee’s legs. This was not sent to the lawyers or the judge, and the judge rejected the detainee’s claim to have injuries to his legs. When the Home Office file was finally disclosed, we found that the case owner’s response to the Rule 35 report had simply been that the Rule 35 report was not ‘independent evidence’ of torture and detention would therefore be maintained.

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In the case of Alois Dvorzac, Ministers have blamed the security contractors for the handcuffing. The handcuffs probably didn’t kill Mr Dvorzac, though, it was his detention that did that. No-one has yet publicly confronted why Mr Dvorzac was detained for two weeks. Who was the case owner? What action if any is taken against them for failure to follow the correct procedures? If the correct procedure was followed, what changes are needed to avoid a repeat incident? Or might the tragic news from yesterday show it is too late already?

The mechanisms for protecting highly vulnerable individuals are failing. Miserable, lonely and sometimes unnecessary deaths are the direct consequence. Will anyone be held to account?

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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