A crisis of harm

A young Guinean woman has become the sixth victim in three years of ‘inhuman and degrading treatment’ in UK immigration detention, with the High Court ruling that detention explicitly caused the disintegration of her mental health.

The High Court

On the evening of 7th April 2011, a young woman disembarked at London Heathrow Airport. Those were her first few steps on European soil. Until recently she had never left Guinea. A few hundred metres away, waiting at Arrivals, was the husband she had not seen for three years. There was no reason to worry, all was in order: her passport carried the ‘Family Reunion’ stamp from the British Embassy in Sierra Leone, which would allow her to rejoin her refugee husband.

She would later be described by a judge as ‘an inexperienced young woman of 24 who may have had a propensity for an emotional reaction to a situation she perceived as frightening… but who was otherwise in good mental health.’ But that evening at Heathrow immigration control, something went terribly, irreversibly, wrong. MD, as she would later be known, had never had formal schooling, and panicked when questioned, giving confused answers when asked for dates: her birth, age, marriage.

Eighteen hours later, her husband was still waiting at Arrivals.

Six months later, after half a year in Yarl’s Wood Immigration Removal Centre, MD had had six ‘episodes of acutely severe mental distress’ involving self-harm. She was frequently in isolation or handcuffed to prevent her self-harming.

By the time she was allowed to leave Yarl’s Wood and finally start her new life in the UK with her husband, seventeen months later, she had been diagnosed with a major depressive disorder and lacked capacity to instruct a lawyer.

The crisis of mental health in detention

During those seventeen months in Yarl’s Wood, MD will not have been alone in her distress and confusion. Her case is not unusual. The healthcare wings and isolation units of detention centres are full of severely mentally ill people in states of mental collapse. Detention Action is constantly working with people with the most extreme mental disorders, detained after months or years on a mental health section, or represented in court by the Official Solicitor because they are incapable of instructing a lawyer.

MD’s case is no longer even particularly unusual in the severity of the judicial condemnation of her treatment. The High Court found in July 2014 that she had been detained unlawfully for almost eleven months, and that her mistreatment in detention reached the high threshold of inhuman and degrading treatment, breaching her rights under Article 3 of the European Convention on Human Rights. Until 2011, the British detention system had never been found to have caused inhuman or degrading treatment.  MD’s case is now the sixth in three years.

MD’s lawyer Jed Pennington of Bhatt Murphy represented three of those six cases. ‘We believe that these are not isolated cases but are typical of the inhumanity and needless suffering caused by the United Kingdom’s system of immigration detention, a system that ought to shame us all,’ he commented.

But what makes MD’s case unique is that it is the first time that a judge, presented with irrefutable evidence from medical specialists, has found that detention caused the onset of a mental disorder sufficiently serious to lead to an Article 3 breach. For MD, detention did not exacerbate a pre-existing mental disorder – it caused the disintegration of her mental health.

The policy of detaining vulnerable people

The question of whether detention causes mental disorders goes to the heart of the Home Office’s approach to the question of vulnerability in detention. The Home Office policy starts from the principle of identifying certain vulnerable groups who should not be detained, other than in exceptional circumstances. These include people with serious mental or physical health conditions, survivors of torture, elderly or disabled people, pregnant women and trafficking victims.

That evening at Heathrow, MD fell into none of these categories.

Research by the Jesuit Refugee Service (JRS) has concluded that a category-based approach to assessing vulnerability is fundamentally flawed, as detention can make anyone potentially vulnerable. Being suddenly locked up, cut off from friends, family and a whole life, can have unpredictable and serious effects on anyone. According to JRS, vulnerability in detention is a complex and dynamic interaction of personal, social and environmental factors, and needs to be assessed individually and holistically.

When are you “satisfactorily managed”?

Nevertheless, from early in her detention it was clear that MD had become mentally ill. The High Court found that one of the aspects of the unlawfulness of her detention was the Home Office’s failure to understand and apply its own policy on the detention of seriously mentally ill people. What went wrong?

A clue perhaps lies in the wording of the policy. In 2010, the Home Office rephrased the policy on the detention of people with serious mental or physical health problems. Thenceforth, exceptional reasons for detention were only required where the person’s health condition ‘cannot be satisfactorily managed within detention’. ‘Satisfactorily managed’ is a term with no clinical meaning.

Nevertheless, in the case of an Indian lady called Pratima Das, the Home Office maintained in the High Court, initially successfully, that the point at which a person’s mental health was no longer being satisfactorily managed was the point at which they were sectioned on a secure mental unit. Deterioration up to the point of sectioning would thus always be considered ‘satisfactory’. A Catch 22 of perpetual incarceration looms into view: you are only too sick to be immigration detained if you are mental health detained.

Medical specialists rushed to point out to the Court of Appeal that this was another medically meaningless threshold, since most mental health conditions are not managed through sectioning, regardless of severity. The Court of Appeal agreed, and threw out the Home Office’s argument. ‘Satisfactorily managed’ does not then mean ‘not sectioned’ – but it is no clearer what it does mean.

The dysfunctional Rule 35

However, there is another Home Office policy that takes a different approach to implementing a safeguard which is not based on categories of vulnerability. Rule 35 of the Detention Centre Rules concerns anyone whose health is likely to be ‘injuriously affected’ by detention, survivors of torture and anyone suspected of suicidal intentions. Rule 35 requires that doctors in the detention centre healthcare units bring such people to the attention of the Home Office case owners responsible for deciding on their continued detention.

Much has been said about Rule 35 by many and varied bodies. The common conclusion has been that it simply does not work. The Independent Chief Inspector of Borders and Immigration and the HM Inspectorate of Prisons havecriticized the poor quality of the reports and of the responses from Home Office case owners. A Home Office audit of the process found that only 9% of Rule 35 reports led to release. The High Court has concluded that Rule 35 reports ‘are not the effective safeguard they are supposed to be.’

According to Theresa Schleicher of Medical Justice, which has documented the way that Rule 35 fails torture survivors, ‘the Home Office has known for years that this important safeguard is not being operated in an effective way, but has done little to address this, and has instead sought to limit who the safeguard applies to, at one point seeking to exclude those who have suffered trafficking or domestic violence.’

Rule 35 is supposed to enable a broader and more dynamic approach to protecting people in detention than a simple list of categories. But given the range of ways that detention harms people, how does it identify people ‘whose health is likely to be injuriously affected by continued detention or any conditions of detention’? In practice, most Rule 5 reports are prompted by the person declaring that they have been tortured. There is a lack of clarity over the degree of information required, with the result that the report is dismissed and detention maintained. However, even where Rule 35 reports are specific and detailed, they frequently receive only the most cursory response from the Home Office case owner.

A crisis of harm in detention

The concept of vulnerability itself is so vexed that it perhaps makes more sense to speak of a crisis of harm in detention. It seems clear that, more than ever before, detention in the UK is harming people. This harm is frequently severe, whether or not the person was categorisable as vulnerable before they were detained.

This crisis of harm is abundantly clear to anyone who spends time talking to people in detention. It can be glimpsed in the minority of extreme cases which reach the High Court, but it can also be glimpsed at other points where the light of publicity reaches into detention.

Perhaps most obviously, harm can be seen in the growing numbers of deaths in detention. Eight people have died in UK detention centres since 2011,compared to two in the preceding five years. The hope that this could be a statistical anomaly is undermined by the circumstances of some of those deaths, described by the HM Inspectorate of Prisons as ‘shocking cases where a sense of humanity was lost.’ Alois Dvorzac, an 84-year-old Canadian with Alzheimers, died in chains in February 2013. ‘This person was extremely vulnerable, he was frail, he should not have been there in the first place, let alone to be detained for such a long while,’ the doctor treating him told Channel 4 News. He was still in handcuffs when he died.

The harm of detention can also be glimpsed in the growing numbers of people risking death by hunger strike. Isa Muazu refused food for around three months in late 2013, before he was eventually removed to Nigeria despite a medical report that he could not stand up. The detention centre had opened an ‘end of life plan’ when the Home Office refused to release him.

The harm that detention does to women is clear from research by Women for Refugee Women. Over 85% of detained women had been raped or tortured; more than half said that they had considered suicide. The media has reported allegations of sexual harassment in Yarl’s Wood, including officers requesting sexual contact in return for help with immigration cases. MD’s doctor considers that her ongoing dissociative symptom of being grabbed from behind is the result of traumatic physical restraint by male officers.

The limited safeguards are simply ineffective in preventing or mitigating this crisis of harm in detention. As a result of litigation, the Home Office is currently conducting an equality assessment of the operation of the policy on detaining mentally ill people.  Substantial changes appear unlikely.

In a forthcoming report, the Detention Forum Vulnerable People Working Group recommends that ‘the Home Office should implement a vulnerability tool which enables a more thorough approach to screening before detention but is also adaptable to changes over time in detention.’ At minimum, there is a need for an effective process of evaluation and screening for the risk of harm in detention, which dynamically assesses individuals and does not simply react to damage already caused.

MD and her husband are now free to get on with their lives in the UK. No-one can know how her traumatic experiences will cast a shadow on her life in the long-term. But no-one can deny the evidence that detention must be reformed before it ruins more lives.

This piece was originaly published in OpenDemocracy as part of the #Unlocked Blogging Series, shining a light on the UK’s detention estate.