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High Court defeat for Home Office over torture policy

High Court defeat for Home Office over torture policy

The Home Office has lost a judicial review over its controversial change to the definition of torture in a claim brought by unlawfully detained torture victims.

In short, the Home Office changed its definition of “torture” in September 2016 to exclude acts of torture committed by non-state actors. This meant that individuals who had been tortured by a non-state group, such as rebel soldiers, paramilitaries or people traffickers, could in future be detained by the Home Office. The judicial review case was brought by several such individuals who would previously not have been detained, but were under the new policy.

This new approach was consistent with the definition of torture in the UN Convention Against Torture (UNCAT). But it was narrower than other international definitions of torture, such as in the European Convention on Human Rights. More to the point, the new policy ignored the fact that the impact of torture on the victim is the same no matter who perpetrates it, and any victim of torture in the wider sense needs special treatment and protection.

The narrower definition of torture used in official guidance and Home Office policies was found unlawful in a claim brought by these seven individual detainees and the charity Medical Justice.

Mr Justice Ouseley, giving judgment today, said that using the UNCAT definition “would require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach”.

His 50-page ruling concluded that:

Aspects of the [Adults at Risk in Immigration Detention statutory guidance] in relation to the definition of “torture” are unlawful: the correct interpretation of “torture” in R35 [of the Detention Centre Rules] was ignored; the list of indicators was exclusive; this conflicted with the purpose of s59 [of the Immigration Act 2016], and lacked a rational or evidence base. The UNCAT definition of “torture” intended for use in the AARSG and R35 would require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach. All this meant that E[quality] A[ct 2010] issues were not considered on the proper basis.

Medical Justice and two individual detainee claimants were represented by Bhatt Murphy, and by Shu Shin Luh and Stephanie Harrison QC of Garden Court Chambers. Duncan Lewis, with Chris Buttler and Ayesha Christie of Matrix Chambers, represented five other linked detainee claimants.

The charity says that:

Narrowing the definition of torture by the Home Office demonstrates its sheer contempt for vulnerable detainees whose lives it is responsible for. The Home Office should have welcomed our evidence of the policy’s harm suffered by torture victims, not dismissed it.

There is ample justification for immediately releasing all detained adults at risk so they can access the care and support they need in the community. We believe that The Home Office’s denials of systemic healthcare failings for over a decade has enabled mistreatment of detainees and that its inability to stop abuse means that the only solution is to close immigration removal centres.

The successful claimants included a 20-year-old Vietnamese victim of trafficking and a 21-year-old Afghan kidnapped and recruited by the Taliban at the age of five. 

The Home Office says that it will not appeal, according to the BBC. It told us that “the court did not find against the adults at risk policy as a whole”, and pointed out that the UNCAT definition has not been used since 6 December, following the decision to grant interim relief.

Conor James McKinney
Conor James McKinney is deputy editor at Free Movement.

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