Alternative Text Posted by Charley Pattison

Earlier this week the Charity Medical Justice and seven claimant victims of torture were successful in their judicial review claims to the High Court (Medical Justice and Others v SSHD [2017] EWHC 2461 (Admin)). The issue before the High Court was whether the Secretary of State for the home Department (SSHD) had issued unlawful statutory guidance and policies in relation to the way victims of torture are detained in immigration detention centres. Effectively, had they unlawfully redefined the meaning of torture resulting in vulnerable people being unlawfully detained? Mr Justice Ouseley found that they had.

Defining Torture – The Background

The background of the definition arose in proceedings brought by a number of individual litigants in EO and Others v SSHD [2013] EWHC 1236 (Admin), supported again by Medical Justice. One issue before Burnett J in that case was the meaning of “torture” in the Rules and policy. Consideration was given to the United Nations Convention against Torture definition of torture (UNCAT torture): “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’ (Article 1 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).)

There was an obvious problem with this definition in the context of assessing the suitability of torture victims for detention in that the definition did not go so far as to cover the many other situations in which people might have been tortured or ill-treated by non state agents. It may be that people are tortured for example in genocide, by fundamentalist terror groups or because of gender or race. Burnett J concluded that the ‘Detention Centre Rules’ definition of torture needed a broader meaning than the UNCAT definition in that, for those purposes, torture was not confined to acts by state agents or ones in which they were complicit or acquiesced. The definition arrived at was what has become known as ‘EO Torture’, which states: “any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind.”

The medical evidence supported the position that the impact of torture for people facing detention was not significantly altered by whether the state or a non-state agent was the perpetrator. It may even be the case that it is unclear to the victim as to whether those inflicting torture or ill-treatment upon them were state or non-state agents. The conditions of detention plainly have parallels in the manner in which some torture may have been perpetrated, but that is not to say that the significant mental and physical trauma suffered in the context of any torture renders someone fit to be detained in immigration detention.

Unlawful Redefinition

Having started at the UNCAT definition and developed policy based on that decision, following the decision in EO the SSHD suspended the policy of using the UNCAT definition in January 2014. It was then in May 2016 through the evolution of the ‘Adults at Risk in Immigration Detention’ (AARSG) policy that despite the clear ruling in EO, the guidance reverted to the UNCAT definition. Case-workers were inexplicably told that the UNCAT definition should be used and this seemed to cause widespread confusion and inconsistency in the approach adopted in assessing victims of torture. As a result of this, many victims of torture were placed into detention. Mr Justice Ouseley quite understandably found that the narrowing of the definition as the basis of the Home Office’s flagship policy lacked “rational or evidential base”. Mr Justice Ouseley, it is worth noting, in his Judgment makes it clear that the SSHD is not compelled to use the EO definition, simply to note that the UNCAT definition is not sufficiently broad in respect of the perpetrator of torture. There are in face a much more wide-ranging criteria that go to whether someone is too vulnerable to be placed in immigration detention.

A further problem identified over the course of this case, and a problem lawyers argue over everyday in court is the scope of the medical practitioners making the assessments. They would be forced, effectively, to reach conclusions beyond the scope of their expertise. They would have to determine who had been responsible for the torture that the victims had been subjected to, not solely the question of whether there was evidence of torture at all.

Implications

There are at least 226 victims of torture who are suspected to have been unlawfully detained during 2016. Human rights campaigners and those representing other potentially unlawfully detained people are calling for all torture victims to be released from immigration detention. The long-term impact of being subjected to further detention following periods of prolonged torture whilst waiting to be granted asylum are likely to be immeasurable, however any torture victims not yet identified are being encouraged to come forward and seek help and guidance. With this latest judgment, as well as multiple deaths and ongoing abuse in immigration detention centres it highlights once again the importance of the judicial review process in preventing the abuse of state power.

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