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Progress stalls on vulnerable immigration detainees

Progress stalls on vulnerable immigration detainees

On 21 October 2021 the Home Office published the Independent Chief Inspector of Borders and Immigration’s (ICIBI) second annual inspection of the Adults at Risk policy, alongside its response.

The report itself is an impressive piece of work and provides comprehensive information about the current state of immigration detention and how it is functioning.

The themes that emerge from the report are depressingly familiar: poorly functioning systems for identifying vulnerable immigration detainees; poor quality casework; insufficient independent oversight of decisions to detain; and a pervasive culture of scepticism and disbelief amongst decision-makers.

Background: the Adults at Risk policy

For those not long in the tooth in this area, it is helpful to recount a bit about the history of the Adults of Risk policy.

The policy came about following a number of court judgments, such as HA (Nigeria) [2012] EWHC 979, and long-standing concerns about immigration detention expressed in inspectorate reports and inquiries. In 2015, the then Home Secretary, Theresa May, commissioned Stephen Shaw to carry out a review. The Adults at Risk policy was part of the Home Office’s response to Mr Shaw’s report

Unlike other detention policies, Adults at Risk has the status and force of statutory guidance (under section 59 of the Immigration Act 2016). The first iteration of the guidance came into force in September 2016. Other than a successful legal challenge to the guidance’s definition of “torture” — see Medical Justice [2017] EWHC 2461 (Admin) — it has survived.

Adults at Risk allows detainees to be put into categories of vulnerability. Evidence of vulnerability is classified in three levels, with level 1 being effectively self-certification, level 2 being professional evidence of a category of vulnerability and level 3 being bespoke professional evidence that a period of detention is likely to cause harm. Once the category of vulnerability and evidence level has been identified and assessed, this is balanced against immigration and public protection factors in deciding whether someone should be detained.

Alongside the Adults at Risk policy, other post-Shaw changes to the detention system included a Detention Gatekeeper as a safeguard at the initial decision to detain, and Case Progression Panels to review ongoing detention. 

How has Adults at Risk been working out?

Mr Shaw published a follow-up inspection in 2018. Part of the official response to this was to commission the ICIBI to carry out an annual inspection on the functioning of the Adults at Risk policy.

The first ICIBI inspection was conducted between November 2018 and May 2019. It was submitted to the Home Office on 29 July 2019 and released on 29 April 2020. As the Chief Inspector observes in this second annual report:

The Home Office took 39 weeks to publish and respond to ICIBI’s first annual inspection and had done little to implement its recommendations… This undermined Home Office efforts to manage vulnerable detainees effectively. The pandemic then effectively stalled further work…

As such, the latest report — covering July 2020 to March 2021 — sounds some familiar notes.

The department’s “genuine concerns about vulnerability were in tension with a widely held view… that the safeguarding mechanisms… were and are being abused”. In addition: “There was little evidence that caseworkers understood that vulnerability was dynamic and could fluctuate over a period of detention and therefore required monitoring”.

Progress towards implementing the recommendations from the first inspection that had been accepted had been “slow and limited”. Work on improving conditions for immigration detainees in prisons “had not advanced beyond scoping stage” and a pilot enhanced vulnerability screening tool had been paused because of the pandemic. 

The biggest impediment to progress had been the pausing of reform to the Detention Centre Rules due to issues of feasibility and resources, and in anticipation of the forthcoming overhaul of the asylum system. The report observes: “the focus of the proposed legislation appears to be on deterring abuse of the immigration system, with the identification and protection of vulnerable individuals potentially a secondary focus”.

Alleged abuse of vulnerability safeguards

Two areas where the department had managed to find time to make changes were in relation to the detention of victims of trafficking and standards for medico-legal reports. As to the former:

The Home Office justified the proposed changes as necessary “to rectify an anomaly in the current policy” but acknowledged that “some individuals may, as a result of the changes, be more likely to be detained, or have their detention continued, that would currently be the case”.

As to the standards for medico-legal reports, this change was introduced in response to concerns that the policy was being abused by sub-standard reports commissioned by detainees and their representatives. The ICIBI asked for evidence to back up these concerns but the department was unable to produce it. A recommendation was made for the department to investigate this issue further and “in consultation with key stakeholders, agree changes in the MLR process that are supported by the evidence from the investigation of possible abuse”. 

The report also comments on familiar problems with the Rule 35 and Part C processes for identifying vulnerable detainees. There was a lack of consistency in how Case Progression Panels made their decisions and there were concerns about the quality of the information available to them and the Detention Gatekeeper.

Recommendations and response

In response to feedback from the department, the ICIBI made recommendations that were “narrower, more directed and hopefully more deliverable” than originally drafted. Out of eleven recommendations, two were not accepted, seven partially accepted and two accepted in full. 

The two that were accepted were to review an enhanced screening tool, and to review the Part C process and the processes relating to the arrival, screening and induction of small boat arrivals.

The two that were rejected outright were to increase the involvement of the Detention Gatekeeper, and to

ensure that the policy, plus any supporting guidance, instructions and performance measures clearly prioritise the safeguarding of vulnerable individuals over general concerns about the abuse of the system.

The Home Office repeatedly cited cost as the basis for rejecting or partially rejecting recommendations.

The future looks bleak 

The department’s response to this report is depressing. It must be especially so for the new Chief Inspector and his team who clearly put a lot of care and hard work into this impressive report.

One senses that the department knows that it will not face trouble for not implementing the recommendations because of the hardening of the political mood around asylum seekers and refugees. It is difficult to see where concerns about the vulnerability of immigration detainees fit in the New Plan for Immigration.

Jed Pennington is a public law and human rights specialist at Wilson Solicitors, with a particular focus on judicial reviews and civil actions concerning immigration detention and migrant rights.

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