Background to the Adults at Risk Policy
In 2015, there were several high profile reported legal cases in decisions by UK courts which ruled that detention in the UK had amounted to inhuman and degrading treatment, i.e. very serious breaches of the European Convention on Human Rights. These arose from a series of instances where people with serious mental illnesses, some requiring hospital treatment under the Mental Health Act 1983, had suffered a deterioration in their mental state because of detention. This included symptoms such as suicidal feelings, self-harming and psychosis. Common themes in these cases were inadequate healthcare facilities in immigration removal centres, deficient medical assessments and a lack of consideration of the harmful effect of detention when decisions were taken by Home Office caseworkers about whether release of the person was required.
This led the Home Office to commission 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.
Prior to Stephen Shaw’s contribution, the Detention Centre Rules 2001 were the primary basis for deciding whether a person should be detained. These comprise three categories of individual:
(i) People whose “health would be injuriously affected by their detention.”
(ii) People who were experiencing “suicidal intentions.”
(iii) People who “may have been the victim of torture.”
These and other categories of people deemed to be generally unsuitable for detention were set out in a now withdrawn policy document, the ‘Enforcement Instructions Guidance’ which explained how Home Office caseworkers needed to factor such information into detention decisions. The general approach of the wording of the guidance was that people who fell within the guidance should not be detained unless there were exceptional circumstances. This meant a general presumption against detention that could only be overridden by the person’s individual immigration situation such as imminent removal or concerns that they were a risk to the public.
Stephen Shaw’s review developed an entirely different approach to understanding the risk of detention to detained people. He sought to introduce a much wider notion of ‘vulnerability’ as a concept in detention and to recognise all detained people are vulnerable:
“I believe the notion of ‘vulnerability’ is best understood as a dynamic term… vulnerability is intrinsic to the very fact of detention and an individual’s degree of vulnerability is not constant but changes as circumstances change.”
When the review was originally commissioned, Stephen Shaw was offered a broad scope to considering the position of detained people, with the discretion to expand the issues he wanted to address. He was specifically asked by the Home Office to address the policies and systems designed to:
identify vulnerability and appropriate action
provide welfare support
prevent self-harm and self‐inflicted death
manage food and fluid refusal safely without rewarding non-compliance
assess risk effectively
transmit accurate information about detainees from arrest to removal
safeguard adults and children
manage the mental and physical health of detainees.
Importantly however, the review was limited to analysis or recommendations about policies that applied to people in immigration detention, rather than the wider legal framework for the use of immigration detention powers in itself.
A further key policy development from the Shaw Review was a recommendation that the Home Office should expand its limited category-based approach of vulnerability and recognise that such categories are not exclusive; that people who do not fall within such a framework may still be vulnerable and this should be recognised in decisions about whether to detain/continue to detain someone. Other key recommendations included the inclusion of a gatekeeping function to review the situation of individuals before they are placed in detention and a replacement to the current arrangements for assessments completed by GPs in detention (a process known as Rule 35 [further explained in Healthcare safeguarding reports: Rule 35 and Rule 32). Stephen Shaw concluded that Rule 35 assessments need to change because they did not fulfil their purpose of protecting “vulnerable people who find themselves in detention – and that the fundamental problem is a lack of trust placed in GPs to provide independent advice”.
Ultimately, Stephen Shaw’s review led to the Home Office’s publication of AAR in May 2016. The original policy included the overarching aim (now withdrawn) that it’s application would “lead to a reduction in the number of vulnerable people detained, to a reduction in the length of time for which people are detained generally, to a quicker and more efficient use of the detention estate and, as a result, to an improvement in the welfare of those detained.” It was also clear that the original purpose of the policy was to strengthen the presumption that where an individual was regarded as being at risk, they should not be detained, whilst also setting out the factors that could weigh in favour of their detention. It set up a process of three levels of evidence of the risk of harm set against immigration factors to allow for a balancing exercise of this information to be undertaken by Home Office decision-makers to take detention decisions. [This three tier balancing process remains true to the original policy. The current version of the AAR policy is described in more detail above.]
Since AAR is the key safeguarding policy that governs decisions about detention and people at risk of harm from their incarceration it has been highly contentious; as well as subject to regular external reviews and amendments by the Home Office.
Last updated
Was this helpful?
