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Rule 35 isn’t working – and there’s data to prove it

Rule 35 isn’t working – and there’s data to prove it

Data about the operation of Rule 35 of the Detention Centre Rules brought into the public domain by a Freedom of Information request lays bare the inadequacies of the current system for reporting vulnerabilities among immigration detainees. The data, obtained by Lewis Kett of Duncan Lewis Solicitors, demonstrates that Rule 35 reporting obligations are being consistently ignored by detention centre GPs.

Rule 35 requires a report to be issued by the detention centre GP in three circumstances:

(1) The medical practitioner 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.

(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and 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.

(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

The idea is that the report will be considered by the Home Office and the decision to detain reviewed quickly under the Adults at Risk policy. Rule 35 is essential because, if operated correctly, it provides a mechanism by which detention centre staff can notify the officials who make detention decisions that a particular person is vulnerable. Without an effective Rule 35 process, decision-makers may well not be aware of vulnerabilities and authorise detention even though it is in breach of Home Office policy.

The statistics about Rule 35 reports make grim reading. In 2019, only five Rule 35(2) reports, which indicate suspected suicidal ideations, were issued across the entire detention estate. In IRC Brook House and IRC Colnbrook, the detention centre GPs did not issue a single Rule 35(2) report all year.

Rule 35(1) reports, which indicate where a detainee’s health is likely to deteriorate, are similarly thin on the ground. Only two Rule 35(1) reports were issued at IRC Morton Hall and only three at IRC Brook House. Unsurprisingly, the corresponding data on release decisions indicates that a vanishingly small number of detainees were released in 2019 following the receipt of a Rule 35(1) or (2) report.

The situation for Rule 35(1) and (2) reports can be contrasted with the relatively large numbers of Rule 35(3) reports issued, which indicate concerns that the detainee may be a victim of torture. The main IRCs each issued over 100 Rule 35(3) reports in 2019, with a small but significant number of detainees being released as a result.

In the case of IS (Bangladesh) [2019] EWHC 2700 (Admin), the High Court decided that, despite its obvious failings, the Rule 35 system was lawful. This new data suggests that the court should urgently take another look.

The FOI datasets for 2019 are available here and the 2018 datasets (which tell a similar story) are available here and here.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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