Adults at Risk Policy (AAR)
In 2015 – following several high profile cases which ruled that detention in the UK had amounted to inhuman and degrading treatment - the Home Office commissioned Stephen Shaw, a former Prisons and Probation Ombudsman for England and Wales to carry out a review into the policies and procedures affecting the welfare of people in immigration detention (importantly, this did not include Home Office decisions to detain).
At that time, the potential harm caused by detention was recognised in the (now replaced) Enforcement Instructions and Guidance (EIG), Chapter 55 which stated, “those suffering serious mental illness which cannot be satisfactorily managed within detention are deemed unsuitable for detention” and corresponded to Rule 35 of the detention centre rules.
Steven Shaw made a number of recommendations in his report (and follow up report) on the urgent need for improved and alternative policies to safeguard and reduce the number of vulnerable people detained.
Recommendations of the Stephen Shaw Report (2016) review into the welfare of in detention of vulnerable persons [1]
Recommendation 9: I recommend that there should be a presumption against detention for victims of rape and other sexual or gender-based violence. (For the avoidance of doubt, I include victims of FGM as coming within this definition.)
Recommendation 11: I recommend that the words ‘which cannot be satisfactorily managed in detention’ are removed from the section of the EIG that covers those suffering from serious mental illness.
Recommendation 16: I recommend that a further clause should be added to the list in paragraph 55.10 of the EIG to reflect the dynamic nature of vulnerability and thus encompass ‘persons otherwise identified as being sufficiently vulnerable that their continued detention would be injurious to their welfare’.
Recommendation 21: I recommend that the Home Office immediately consider an alternative to the current rule 35 mechanism. This should include whether doctors independent of the IRC system (for example, Forensic Medical Examiners) would be more appropriate to conduct the assessments as well as the training implications.
Recommendation 22: I further recommend that rule 35 (or its replacement) should apply to those detainees held in prisons as well as those in IRCs.
Recommendations of the Stephen Shaw Report (2018) follow up report on the Adults at Risk Policy [2]
Recommendation 11: The current Adults at Risk policy should be amended. Detention of anyone at AAR Level 3 should be subject to showing ‘exceptional circumstances’.
Recommendation 12: Consideration should be given to AAR Level 2 being sub-divided and, if adopted, the presumption against detention for those in the upper division should be strengthened. The Home Office should consider the merits of the UNHCR Vulnerability Screening Tool.
Recommendation 13: The Home Office should no longer detain any adults over the age of 70 except in ‘exceptional circumstances’.
Recommendation 14: The Independent Chief Inspector of Borders and Immigration should be invited to report annually to the Home Secretary on the working of the Adults at Risk process.
In response to the first Shaw Review, the Home Office introduced a new ‘Adults at risk’ policy in 2016. The policy replaced the vaguer policy in the EIG and was part of the Government’s commitment to ‘safeguard the most vulnerable’ with ‘a clear presumption that people who are at risk should not be detained’.
The policy states that someone is an adult at risk if:
"they declare that they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention." [3]
The policy lists additional factors that indicate someone may be particularly vulnerable to harm (this is a non-exhaustive list). These are:
suffering from a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition);
having been a victim of torture;
having been a victim of sexual or gender-based violence, including female genital mutilation;
having been a victim of human trafficking or modern slavery;
suffering from post-traumatic stress disorder (which may or may not be related to one of the above experiences);
being pregnant (pregnant women will automatically be regarded as meeting level 3 evidence);
suffering from a serious physical disability;
suffering from other serious physical health conditions or illnesses;
being aged 70 or over;
being a transgender or intersex person.
The policy requires those making detention decisions to balance ‘immigration control factors’ (such as absconding risk) against any risk of harm to the individual from being detained. This balancing of vulnerability against immigration factors requires that vulnerable people show that they are being harmed by detention, by requiring them to produce evidence that there is a significant risk of harm. In its first year of operations, many NGOs reported that the adults at risk identified under the new policy were still facing long periods of detention.
The levels of evidence and the respective immigration factors that this is balanced against are as follows [4]:
Evidence
Immigration Factors
Level one: A self declaration of being an adult at risk (afforded limited weight).
The individual will be suitable for consideration for detention where one of the following applies:
Date of removal possible within a reasonable timescale.
Any public protection issues are identified.
Indicators of non-compliance with immigration law.
Level two: Professional evidence (for example from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is (or may be) an adult at risk (afforded greater weight.)
Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.
The individual will be suitable for consideration for detention where one of the following applies:
the date of removal is fixed, or can be fixed quickly, and is within a reasonable timescale and the individual has failed to comply with reasonable voluntary return opportunities.
there are public protection concerns (e.g. previous conviction).
indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained. Less compelling evidence of non-compliance should be taken into account if there are also public protection issues.
Level three: Professional evidence (for example from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm (should be afforded significant weight.) For example, evidence that a period of detention or continued detention will increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk should be afforded significant weight.
Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.
The individual will be suitable for consideration for detention where one of the following applies:
removal has been set for a date in the immediate future, there are no barriers to removal, and escorts and any other appropriate arrangements are (or will be) in place to ensure the safe management of the individual’s return and the individual has not complied with voluntary or ensured return.
the individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence, or there is a serious relevant national security issue or the individual presents a current public protection concern.
The Adults at Risk policy is triggered when Home Office officials are alerted of evidence of harm through the Rule 35 (or Rule 32 in STHFs) process by which healthcare professionals in the detention should submit reports when the:
Detained person’s health is likely to be injuriously affected by continued detention or any conditions of detention;
When they suspect person has suicidal intentions;
In the case of any detained person they are concerned may have been the victim of torture.
Updated Adults At Risk statutory guidance
AAR updated statutory guidance came into force on 21st May 2024. These changes were made under the previous Conservative Government and there is continued pressure on the Labour Government to reverse these changes [5].
This includes concerning developments, especially as it comes after further recommendations from the Brook House Inquiry on the need to improve the implementation of Rule 35. Instead of responding to the recommendations and countless reports on failures of the Adults at Risk Policy and Rule 35/Rule 32 it erases important commitments in the AAR and dilutes the guidance.
Key changes are that:
The purpose and principles which underpin the guidance no longer state the intention is for there to be a reduction in the number of vulnerable people detained and that, where detention is necessary, it will be for the shortest period possible.
Instead it places the policy within the context of tackling “illegal” migration and section 12 of the Illegal Migration Act (that detention is for the period the SSHD considers necessary for removal to take place) stating "there is no exemption from detention for any category of vulnerable person within this guidance";
In making an assessment against immigration factors, it removes the presumption that, once an individual is regarded as being at risk, they should not be detained. The updated guidance simply states that immigration and at risk factors should be balanced.
Strengthens the weight of “credibility concerns” from courts, tribunals or other sources to state that this should (previously “may”) be taken into account to decide the evidence level. This takes away the ability to reconsider previous judgements due to, for example, new evidence being submitted.
It removes, from the indicators of risks, that victims of torture "with a completed Medico Legal Report from reputable providers will be regarded as meeting level 3 evidence, provided the report meets the required standards";
It introduces new options for the Home Office to obtain a second professional opinion from a Home Office contracted doctor where professional external evidence has been submitted.
States that people will “normally” (previously "will") be considered x evidence level where they meet the relevant criteria making the policy vaguer and more easily misused.
In a positive step it changes the use of “transexual” to the more inclusive term “transgender” in indicators of risk.
Overall, the result of these changes is likely to be that more people who are particularly vulnerable to harm in detention are detained and for longer periods.
Future watch: Look out for changes to the Adults at Risk policy and whether the Labour Government will reverse the weakening of this policy. This is currently under review, expected to be complete in Spring 2025.
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