Adults at Risk Policy (AAR)
The adults at risk policy (AAR) is the key safeguarding policy that applies in immigration detention. It is underpinned by s59 of the Immigration Act 2016 which requires the Home Office to issue guidance on whether a person is particularly vulnerable to harm if they are detained, or remain in detention, and so to determine if they should be released. The overall approach is that the Home Office decision-maker weighs evidence of vulnerability against the immigration factors in the case to decide if detention is appropriate.
AAR governs the way that the Home Office is required to consider evidence of detained people’s vulnerability, and to consider how much weight to give this in decisions about detention.
These are the key questions for the AAR policy:
Has the individual been identified as being at risk of harm in detention?
What is the level of evidence of the person’s vulnerability and so their category of risk?
How should the person’s vulnerability which would argue in favour of their release, be weighed against other factors that could justify their detention?
AAR is clear that the Home Office has to approach these questions based on the individual circumstances of a person’s situation at the time that the decision about detention is taken. There is not a limit to how many times AAR can be applied to an individual’s situation. It can be re-applied whenever a decision on detention is required, where there is evidence they are vulnerable to harm.
1. Does the individual fall within the AAR policy because they have been identified at risk of harm in detention?
The AAR Policy states that an individual 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”
The policy provides a list of categories of “conditions or experiences” which indicate a person may be vulnerable to harm in detention and so could fall within the scope of AAR. These are:
The person is “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)”.
The person “has been a victim of torture” as defined by Rule 35(6) of the Detention Centre Rules 2001 (see Survivors of torture, human trafficking and modern slavery).
The person has “been a victim of sexual or gender-based violence, including female genital mutilation”.
The person has “been a victim of human trafficking or modern slavery”.
The person is “suffering from post-traumatic stress disorder (which may or may not be related to one of the above experiences)”.
The person is pregnant.
The person is “suffering from a serious physical disability, suffering from other serious physical health conditions or illnesses.”
The person is aged 70 or over.
The person is transgender or intersex.
The policy stresses that this list is not exhaustive and that there may be other conditions and experiences that fall outside of this list which render people vulnerable to harm if they are in detention. It also emphasises that “the nature and severity of a condition, as well as the available evidence of a condition or traumatic event, can change over time.”
2. What is the level of evidence of the person’s vulnerability and so their category of risk?
Once a detained person is assessed as falling within the terms of AAR, the next question that informs the Home Office decision-maker is the level of evidence of their risk. There are three levels of evidence and broadly the policy is a balancing exercise: the greater the level of evidence of risk, the stronger the immigration factors that are needed in order to justify detention.
The evidence levels within the policy framework are:
Level 1: a self-declaration of being an adult at risk should be afforded limited weight in most cases, including where the issues raised cannot be readily confirmed.” This does not mean that a detained person needs to know the AAR policy to explain that they fall within it, just that they need to raise to an aspect of their vulnerability or risk of harm. The wording of the policy also states that where professional evidence is not immediately available observations from Home Office officials that lead to a belief that a person is at higher risk then they can be allocated to a higher category of risk.
Level 2: “professional evidence (e.g. from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is an adult at risk.”
Level 3: “professional evidence (e.g. 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. 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.”
When considering “professional evidence”, the Home Office can decide to obtain their own report to determine the level of risk of detention in response to a report that has been obtained externally. Whilst they are obtaining such evidence the Home Office caseworker must still consider “the needs and circumstances of the person in detention in view of the evidence submitted.” i.e. the Home Office cannot simply wait to commission their own evidence about the risk of harm, a decision needs to be taken in the meantime about whether detention is appropriate.
A second complicating factor is that the Home Office caseworker is required to take into account any credibility issues that apply to the evidence submitted and this can reduce the category of risk. This provides caseworkers with a wide level of discretion as AAR states this includes “Determinations from courts or tribunals about the credibility of a person’s account or claims, or about professional evidence, or credibility concerns arising from other sources.”
3. How should the person’s vulnerability which would argue in favour of their release, be weighed against other factors that could justify their detention?
AAR specifies the following factors should be taken into account when making a decision about the detention of a person who has been identified as at risk:
Length of time in detention
AAR is explicit that time considerations is one of the most important factors in favour of detention. Where removal or deportation is “likely to be within a short timeframe, an individual considered vulnerable under this guidance is likely to be able to be detained for removal notwithstanding the other elements of this guidance.”
The policy also reminds decision-makers of the approach needed to ensure a lawful decision to detain[1]. More explanation of how the Home Office can lawfully exercise powers of detention is included in in Lawfulness of Detention.
Are there any public protection issues?
This is widely defined but includes people with a criminal history, those considered a security risk, and people subject to a court decision that they are to be deported for the public good.
Compliance issues
The Home Office decisionmaker makes an assessment of the individual’s risk of absconding, based on their previous compliance record.
This table illustrates the immigration factors which the evidence (depending on its level) are balanced against, to decide whether detention is justified:
Evidence
Weight given by the Home Office decision-maker about the risk of harm when considering whether detention is appropriate
Immigration Factors
Level 1: A self-declaration of being an adult at risk
Limited weight
Where detention is for the purposes of removal, “the date of removal can be forecast with some certainty” and is “within a reasonable timescale given the logistics involved”.
Any public protection issues are identified.
Indicators of non-compliance with immigration law “which suggest that the outcome sought by detaining the individual would not be achieved without the detention of the individual.”
Level 2: Professional evidence stating that the individual is an adult at risk.
Greater weight than a self declaration/ level 1 category of risk
“Where detention is for the purposes of removal, 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” or if the individual is being detained having been refused entry to the UK.
There are public protection concerns (e.g. previous conviction) that justify detention.
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 3: Professional evidence that the individual is an adult at risk and that detention will likely cause them harm
Significant Weight
Detention should only occur if 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.
[1] The summary of the legal position on the detention of people who are recognised as vulnerable according to AAR is set out in the policy as “where detention is for the purpose of removal or deportation, there must be a realistic prospect of removal within a reasonable period. Where detention is for any other statutory purpose, it must be for a period considered reasonable for that specific statutory purpose of detention. In accordance with section 12 of the Illegal Migration Act 2023, it is for the Secretary of State to determine what constitutes a “reasonable period” of detention and this period will vary according to the particular factors of a case (including whether or not the individual is considered vulnerable) and the specific statutory purpose of detention. When considering continuing detention, the period of detention to date should be factored in when determining whether a further period of detention is reasonable. In all cases, every effort should be made to ensure that the length of detention is as short as possible. Where detention is for the purpose of removal or deportation, it should be possible to estimate the likely duration of detention required to effect removal or deportation. Where removal or deportation is likely to be within a short timeframe, an individual considered vulnerable under this guidance is likely to be able to be detained for removal notwithstanding the other elements of this guidance.”
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