Source: Medical Justice
By Emma Gin
An audit of the "Rule 35" process for reviewing the detention of torture survivors that the UK Border Agency has sat on for over a year was finally published this week, confirming fears that detention centre medical reports on victims of torture have been ignored. UKBA admit their practices "require considerable sharpening".
Rule 35 is the only safeguard UKBA has to ensure vulnerable people, including torture survivors, are not "inappropriately" detained. It requires detention centre doctors to generate a Rule 35 report on "any detained person whose health is likely to be injuriously affected by continued detention". UKBA should then review continued detention.
The audit shows that Rule 35 reports were delayed in most cases and some reports were simply ignored altogether. Where Rule 35 reports were considered, 91% of detainees were not released but the audit report did not provide the analysis UKBA promised of its decisions to not release vulnerable detainees.
"Colleagues from the Medical Justice Network and I regularly see the outcome of Rule 35 failures ; torture survivors and people with serious medical and psychiatric conditions who are routinely and inappropriately detained. Many people fleeing from regimes our government says it abhors are routinely subjected to being wrongfully and harmfully detained each year. Large sums are being wasted in this process in compensation for such errors and in legal costs."
Dr Frank Arnold, Clinical Advisor to the Medical Justice Network
"Many torture survivors we see have suffered arbitrary and indefinite detention, without charge, trial, or judicial oversight in their country. Some seek safety in the UK but are greeted with another, retraumatising dose of arbitrary and indefinite detention, without charge, trial, or judicial oversight. Rule 35 failings can lead to torture survivors being deported. On arrival in their country, some have been detained and tortured for a second time. A few make it back to the UK, and on arrival get detained yet again. Reading medico-legal reports distinguishing new scars of torture from the older scars of torture makes me despair."Having waited over a year, we are bitterly disappointed at the inadequacy of the audit. Its aims were two fold: to establish its level of compliance with its policy regarding victims of torture and to address the concerns of NGOs who regularly see torture survivors being detained. On both counts, the audit fails miserably and is symbolic of UKBA's lack of commitment to safeguarding vulnerable detainees.
Theresa Schleicher, Casework Manager, Medical Justice
The audit report only deals with the administrative timeframes within which reports of torture should be dealt with, which UKBA missed in 65% of cases. No analysis of the content of the reports, or the quality of the detention review, or the assessment of medical evidence, or anything of any substance has been provided in the audit. Without this information, the audit is essentially redundant. The audit report demonstrates how little the UKBA understands the extent to which its systems are failing.
The audit report's action plan is all about mechanisms to monitor administrative processes only - little more than window dressing. There are no planned changes to fix the fundamental failures; UKBA caseworkers are not medically qualified to interpret medical evidence, in many cases Rule 35 reports are not generated within 24 hours of detaining, often they are not generated at all, are regularly written by a nurse rather than a registered GP, some fail to document scars, symptoms, and illness correctly or to express a medical opinion whereby review by UKBA caseworkers is rendered meaningless. These failures demonstrate that the mechanisms to prevent the detention of vulnerable people are inoperative. UKBA caseworkers rarely release detainees subsequent to a Rule 35 report.
"Pierre", a Congolese man, was tortured, sought asylum in the UK, was detained, refused asylum, deported, tortured again in Congo, fled back to the UK, was again detained and refused asylum. He had a Rule 35 report done and a medico-legal report from an independent doctor sent by Medical Justice before he was deported, and a second Rule 35 report and a second medico-legal report when he came back to the UK. Despite all the reports, this did not lead to the release of a man who has signs of torture that have been documented by two independent doctors as well as two detention centre doctors. The decision to continue to detain lies with a UKBA caseworker who has no medical qualifications to interpret medical evidence. See below for full case-study.
Medical Justice intends to lodge a complaint about the inadequacy of the audit and to demand disclosure of the raw data on which the audit was based . We urge the Home Affairs and Public Accounts committees to urgently investigate the scandal of having no effective safeguard against inappropriate, harmful and expensive detention of torture survivors.
- Medical Justice has facilitated access to legal representation for a number of detainees who were released and won compensation. According to Home Office accounts, £12 million was made in "special payments" in 2009-10 in unlawful detention cases, many of which featured Rule 35 failures.
- A BBC journalist revealed that in an 18 month period during 2008/9, not a single detainee was released from Yarl's Wood following a Rule 35 report.
Adequacy of the audit - UKBA gathered data for their audit in November and December 2009. Despite the fact that the report is only based on 190 individual cases and a very narrow dataset, no substantive analysis has been done, and the report is 13 pages long. In effect, a product that could arguably be executed in 2-4 weeks has taken 14 months to produce.
The audit's focus lies on administrative timescales rather than wider procedural implementation. Response times, whilst important, are only one aspect of the policy which needs examining. However, even in this one area, UKBA is failing, only complying with their 2 day response timeframe, in 35% of cases (or 67 of 190 cases). Furthermore, the audit shows that 14% of cases (or 26 of 190 cases) had received no response at all within the Rule 35 process.
The Nov/Dec 2009 audit shows that 33% of Rule 35 reports were not replied to. It seems that performance seems to have slipped somewhat since the spotlight of the audit faded; the latest HM Inspector of Prisons report on Colnbrook detention centre (August 2010, PDF) noted that of 125 Rule 35 reports UKBA had received, only 61 had been replied to (49%). HMIP reports; "Not all of the replies had been timely. The paucity of information provided by health services staff gave case owners little reason to consider release and most replies were equally brief and unhelpful."
Conclusions - Medical Justice is even more concerned following the publication of this report that UKBA is failing to comply with its policy and fails to understand the extent to which and how precisely its systems are failing. Through publishing this audit which covers such a limited scope, UKBA shows it is unable to understand the context within which Rule 35 should be used and to identify the systemic failures which either fail to trigger a Rule 35 report to be executed, allow for poor quality reports to be submitted or do not permit a robust detention review to take place.
- UK Border Agency's audit
- Refugee Council statement on the Rule 35 audit
- Medical Foundation for the Care of Victims of Torture press release
Case-study : "Pierre"
During a period of armed conflict, Pierre took shelter in a school, along with others. Militia men came in and singled out Pierre. They tied his hands, beat him with rifle butts, kicked him, stripped him naked, made him kneel on the ground, repeatedly inserted drumsticks into his anus, dripped hot candle wax over him, and stubbed the candle out on him. Pierre's screams during the torture were so loud that the militia threatened to stab him and indeed did so with a kitchen knife in his foot. The rest of the group hiding in the school were forced to watch Pierre's torture. One of the militia shot Pierre in the leg. The sound of the shot attracted other armed forces and the militia fled.
After a period of displacement, Pierre managed to get a valid visa and came to the UK. A number of years later he got news that his father had disappeared and was presumed dead, at which point he claimed asylum and got detained.
Due to the instrumental anal rape, Pierre still has rectal bleeding and rectal prolapse which he has to replace manually after defecation. He sleeps less than four hours a night and is frequently woken by nightmares of being tortured. During the day he has flashbacks. He has described manifestations with the characteristics of hallucinations, both visual and auditory. He bangs his head against the wall and has self-harmed with a razor blade.
Although his medical notes described Pierre's history of self-harm, a psychiatrist from the detention centre wrote that Pierre had "no suicidal thought or ideation. No history of past self harm". However, a Rule 35 report was written by another detention centre doctor, which was well written. But UKBA did not release Pierre.
Medical Justice organized for Pierre to be visited in detention by Dr Frank Arnold who concluded that it was unlikely that Pierre had not been subjected to torture or organized violence. Dr Arnold concurred with the detention centre doctor's Rule 35 report.
Pierre was refused asylum and deported. He says that at Heathrow he was beaten by immigration escorts. He says that on the plane, the escorts "put my head between my legs under the seat and start kicked and punches me so hard". On arrival in Congo he was immediately arrested, stripped, handcuffed, repeatedly kicked and slapped. He was handcuffed through the bars of a cell. When he asked for water, he was forced to drink his own urine. He had to sleep in the urine and faeces deposited on the cell floor. He got malaria - having left Africa for several years, he would have lost his relative immunity. Eventually, escaped with the help of a sympathetic airport employee.
Pierre made it back to the UK again, claimed asylum, and was detained again.
A detention centre screening questionnaire states Pierre gave no history of torture or signs of physical injuries. But the same day, a detention centre doctor wrote a second Rule 35 report which was barely adequate, but it did mentioned Pierre's new scars and conditions, although no opinion was expressed. UKBA reviewed the Rule 35 report and decided to continue to detain Pierre.
Medical Justice arranged for another independent doctor to see Pierre in detention. The doctor documented Pierre's new scars and injuries and noted that they are all "typical of someone who has survived rape and torture".
Pierre was refused asylum again.
After further assistance from Medical Justice, Pierre was released from detention. He still faces re-detention and deportation.
This an example of where two Rule 35 reports, of varying quality, were competed but did not lead to the release of a man who has signs of torture that have been documented by two independent doctors as well as two detention centre doctors. The decision to continue to detain lies with a UKBA caseworker who has no medical qualifications to interpret medical evidence.
Medical Justice is a network of doctors, lawyers, ex-detainees, and detention centre visitors. It is the only organisation dealing with the denial of adequate healthcare from immigration detainees in the UK. We handle approximately 1,000 referrals a year. This core work consists of independent doctors assessing detainees in detention centres, giving independent medical advice, challenging the denial of medication and care, and providing medico-legal reports. Based on this case-work, Medical Justice carries out research activities, public and parliamentary awareness raising, and engages in litigation in order secure lasting change. We believe that the harm being caused by immigration removal centres is so widespread that the only solution is to close them down. In the interim, we work to reform the institutions and to stand up for the rights of those incarcerated within them.