This section highlights three areas of Home Office policy and guidance on the treatment of people detained which has given rise to major concerns over fairness, decency, and lawfulness. People impacted by detention, visitor group coordinators, campaigners, parliamentarians, and legal advisors will recognise these concerns.
These areas are the use of segregation, age assessments and the identification of people at risk of harm from detention (including victims of torture). These pieces of Home Office guidance are of concern usually for not one or two but for all of the following reasons:
They fail people who are especially vulnerable, such as children, people who have been tortured, and severely mentally ill people with consequences that are destructive and long-lasting, in addition to their loss of liberty.
They are set out in broad terms only and they typically lack sufficient detail to enable Home Office or contractor staff to make good operational decisions.
They are flouted by Home Office or contractor staff.
They may result in a person being kept in detention without proper reason, or even unlawfully.
They repeatedly feature in successful or settled unlawful detention litigation against the Home Office, yet the Home Office resists revising the relevant instruction.
They enable Home Office operational convenience to be achieved at an unacceptable and unjust human cost to the detained person.
As an organisation in solidarity with people detained for many years, AVID continues to collect evidence of the effect of these high-concern policies from member organisations, and bring this to the attention of the Home Office, along with other prominent detention organisations.
Rule 42 of the Detention Centre Rules allows for segregation in specific rooms, units, or cells in IRCs as follows (this is equivalent to Rule 35 in the Short-Term Holding Facility Rules):
Temporary confinement
42.—(1) The Secretary of State (in the case of a contracted-out detention centre) or the manager (in the case of a directly managed detention centre) may order a refractory or violent detained person to be confined temporarily in special accommodation, but a detained person shall not be so confined as a punishment, or after he has ceased to be refractory or violent...
People who are held in segregation should not be held for more than 24 hours without authorisation from the Secretary of State and must be given the reasons for their segregation in writing. Segregation should not continue beyond 3 days. The person held under Rule 42 should be visited by the centre manager, a medical practitioner and a Home Office representative at least once each day for as long as they remain in segregation. Written authorisation of their segregation must be copied to the local Independent Monitoring Board, the medical practitioner, and the manager of religious affairs at the centre.
Under Rule 40 of the Detention Centre Rules a person in detention can be held behind the door in their room or cell and not allowed to mix with other people in detention:
Removal from association 40.
—(1) Where it appears necessary in the interests of security or safety that a detained person should not associate with other detained persons, either generally or for particular purposes, the Secretary of State (in the case of a contracted-out detention centre) or the manager (in the case of a directly managed detention centre) may arrange for the detained person’s removal from association accordingly.
Those on Rule 40 can be confined to their room or cell for up to 14 days, although this must be authorised by the Home Office after 24 hours. If advised by a medical practitioner that it is necessary, the centre manager should remove the restriction (this option is not allowed for in the legislation on Rule 42).
The psychological and physical impact of segregation is widely recognised. Its use in detention has been subject to criticism from monitoring bodies, NGOs and international human rights directives.
Bail for Immigration Detainees (BID) and Medical Justice released a report in 2021 detailing the impact of solitary confinement and segregation on people detained in prisons during the Covid-19 pandemic. In the report, confinement was described as “psychological torture”, feeling “trapped”, “hopeless” and “suffocated”. Symptoms were incredibly severe, including involuntary shaking, memory loss, physical pain and insomnia [1]. This reflected similar findings from a prior Medical Justice on report (2015) on “the overuse and misuse of segregation...in IRCs across the UK” against people detained [2].
The Brook House Inquiry heard evidence on the misuse of rules 40 and rules 42 in Brook House IRC including its use on people who were severely mentally ill and being used as a punishment (even for minor issues such as stealing coffee) [3]. The Brook House Inquiry made a number of recommendations including for the Home Office to provide training to staff on rule 40 and rule 42 and regularly audit how it is being used. At present, the Home Office does not centrally collate data on the use of segregation across the detention estate, even on the number of times the Secretary of State is required to authorise the use of segregation.
AVID members are witness to concerning trends on the use of segregation including:
Segregation cells or units being used inappropriately to manage people detained who are mentally unwell, especially if their behaviour is viewed as challenging and sometimes for very long periods. Often it is neglect of their mental illness on entering detention which has led to a deterioration in their mental health.
People who have been subject to torture (which may have included the use of solitary confinement), or who are at risk of self-harm, may be managed by the use of segregation, despite the risk that exposure to segregation or removal from social contact with others may worsen.
Segregation is not always correctly authorised and may be used for periods of weeks or even years in individual cases, certainly far in excess of the permitted 3 days.
Segregation being used as a punishment or when someone refuses to share a room, despite this being expressly excluded in the legislation. There is no adjudication system in detention centres which would enable detainees to challenge the use of segregation.
People held under Rule 40 or Rule 42 are not easily able to access legal advice via legal advice surgeries.
In 2010 the coalition government undertook to end the detention of children in the UK. Child detention has not ended, but – following the introduction of reforms in the Immigration Act 2014 - minor children accompanied by one or both parents are now detained only for periods up to seven days. However, if certain provisions of the Illegal Migration Act 2023 come into force, the Home Office will theoretically have the power to detain children who are deemed to have entered the UK unlawfully (unaccompanied or otherwise) indefinitely (see also #children).
Each year a number of unaccompanied children enter the UK, usually to seek asylum. These children may have been separated from their parents during a journey from their country of origin, or may have travelled to the UK on their own. Unaccompanied children can be subjected to immigration detention if the Home Office believes - on the basis of their appearance or demeanour - that they are ‘significantly over 18 years old’ and the child or young person cannot prove otherwise. The Home Office is allowed to treat them as an adult unless challenged, and if they are challenged these are what are referred to as ‘age dispute cases’.
The Nationality and Borders Act 2022 (‘NABA 2022’) provided the Home Office with much greater power and oversight over age assessments than before. Prior to NABA 2022, local authorities completed ‘Merton compliant’ age assessments. Merton Compliance takes it name from an immigration case [1] in which the High Court stated that local authority “cannot simply adopt a decision made by the Home Office” and outlined a number of criteria for a lawful assessment. To be “Merton compliant”, an assessment should be holistic and not made based solely on appearance but take into account (amongst other factors) the child's history in their home country, education and cultural information.
NABA 2022 enabled the new “National Age Assessment Board”, which consists of social workers employed by the Home Office, to complete age assessments if the local authority chooses to transfer the age assessment to the Home Office or if the Home Office notifies the local authority in writing that it doubts a person’s age as a child. The National Age Assessment Board can also carry out age assessments directly for those not cared for by the local authority or at any point before the local authority has referred the case or provided its own age assessment to the Home Office.
Local authorities do not have to refer cases to the National Age Assessment Board but can choose to do so. They can also carry out the age assessment themselves or confirm to the Home Office that they are satisfied that the individual’s age is as claimed. Under NABA 2022, the Home Office can override the local authority’s age assessment and conduct its own. Furthermore, if the local authority decides not to carry out an age assessment or decides to conduct its own, it must provide required evidence for the Home Office to consider the decision. The National Age Assessment Board’s decision only binds the Home Office (including immigration officers) and not the local authority who can continue to treat the individual as a child. If this happens, young people deemed to be children by the local authority could be detained by the Home Office. Such a scenario would be massively concerning and arguably unlawful for other reasons.
Home Office guidance on age assessments requires all those who do not look significantly older than 18 and who say they are children to be treated as a child in the first instance - meaning that they must not be detained - until a careful assessment of their age has been completed. The Home Office may detain a young person who says they are a child if there is credible documentary evidence that the young person is over 18 years old and therefore an adult, or if at any point the young person has been determined to be an adult via a ‘Merton compliant’ age assessment. The Home Office may also detain an individual if two Home Office members of staff of a particular grade or over have independently concluded that their physical appearance and demeanour very strongly suggests they are significantly older than 18 and there is little or no supporting evidence for their claimed age. Home Office guidance therefore gives immigration officers significant leeway in determining the age of a child or young person, in what must be viewed as an entirely subjective decision. [2]
In the case of in R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38, the Supreme Court ruled that the Home Office’s initial age assessment policy of treating individuals as adults where their physical appearance and demeanour very strongly indicated that they were significantly over 18 years of age was lawful.
In a briefing note on the plans to remove people to Rwanda and age disputes, The Refugee and Migrants Consortium explain the repercussions and far-reaching implications for children impacted:
“There are no safeguards in place for children who say they are children but are still treated as adults by the Home Office, which is a rising area of concern… RMCC members regularly see children as young as 14 treated as adults by the Home Office and placed in immigration detention or alone in adult accommodation at significant risk.”
Determining age on the basis of appearance is subjective, and quasi-medical assessments have a wide margin of error and have been discredited. Despite this, NABA 2022 allows the Home Office to make regulations for “scientific” age assessment methods and for a decision-maker to make adverse credibility findings against those who refuse to undergo these methods “without good reason.” Further, section 58 of the Illegal Migration Act 2023 allows for an automatic assumption of adulthood if the person refuses to consent to a scientific method to determine their age. This will likely mean many children will wrongly be automatically declared as adults.
These failings are exacerbated due to the fact that separated children arriving in the UK may come from countries where precise age is not considered important, or lack any documentation, or have forged documentation to assist with their journey. Notwithstanding the impact of trauma and language barriers.
The consequences of being treated as an adult and held in immigration detention are unimaginable and unjustifiable. Children suffer the physical and emotional consequences of being detained as well as being unable to access education and support from local authority social services.
The Refugee Council Age Dispute Project works with separated children whose age is not accepted by the Home Office to help them get out of detention and receive legal advice and support [4].
R (B) v Merton [2003] EWHC 1689 (Admin)
Home Office, (2023), Assessing Age. v6.0. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1140168/Assessing_age_March_2023.pdf
Refugee Council and Migrant’s Children Consortium, Briefing Note on Rwanda and Age Disputes. p.4. Available at https://www.refugeecouncil.org.uk/information/resources/rmcc-briefing-rwanda-age-disputes-june-2022. See also Judith Dennis, (2012), Not a minor offence: unaccompanied children locked up as part of the asylum system. Available at http://www.refugeecouncil.org.uk/assets/0002/5945/Not_a_minor_offence_2012.pdf
Detention Centre Rule 35 and Short-Term Holding Facility Rule 32 ‘Special illnesses and conditions (including torture claims), set out a mechanism designed to ensure that the Home Office ‘responsible officer’ making detention decisions is aware if, at any point, a detained persons health is considered likely to be adversely affected by continued detention or any condition of detention. The healthcare teams in RSTHFs and IRCs are required to report concerns to the centre manager who should, in turn, report these to the Home Office. The duty is then with the Home Office to review the detention of the individual in line with the .
Every aspect of the operation of Rule 35 and the AAR, from the identification of vulnerabilities - to the quality of reports - to vulnerabilities being appropriately responded to, have been subject to criticism since its introduction.
In one report by Medical Justice – Harmed Not Heard (2022) – they identified 45 people at risk of harm. Of those, Medical Justice found that 82% had experienced a deterioration in their mental health as a consequence of their continued detention and 87% expressed suicidal thoughts. However, none of these people had the equivalent Rule 35 reports [1].
There have been ongoing failures of the process to identify people detained who have been subject to torture and - crucially - once identified for them to be released by the Home Office. In a report by Women for Refugee Women We Are Still Here (2017), they found that [2]:
“Survivors of sexual and gender-based violence are being detained before any attempt has been made to find out about their previous experiences and assess if they are vulnerable.
They aren’t believed when they disclose their experiences, and it is difficult for them to obtain evidence the Home Office will accept.
Even when they obtain evidence the Home Office accepts, survivors are being kept in detention.
Even when their mental and physical health are clearly deteriorating, survivors are being kept in detention.”
There is little – if any - written evidence on the implementation of Rule 32 in Short-Term Holding Facilities. Anecdotally, visitor groups to RSTHFs report that they rarely, if ever, see it being used within these facilities.
The Brook House Inquiry into the revelations of abuse, mistreatment and systemic racism in Brook House in 2017, found serious failings in the application of Rule 34 and Rule 35. Where Rule 35 reports were completed, the quality was found to be generally poor. Dr James Hard, the Inquiry’s medical expert, considered that around 75% of Rule 35(3) reports he examined were inadequately completed. In particular, he noted that there was either no conclusion regarding the possibility of previous ill treatment being torture, or no conclusion on the impact of ongoing detention. The Brook House Inquiry also made a recommendation that for a review of Rule 35 to be undertaken so that all three parts are followed, operate effectively and are properly resourced;
The Home Office has been highly reluctant to improve any aspect of this process, despite criticism from inspectorates, parliamentarians, research, litigation, and evidence over many years. Tellingly, in 2023, the Home Secretary terminated its contract with the Independent Chief Inspector of Borders and Immigration (ICIBI) to monitor the Adults at Risk Policy. In the third and final report report the ICBI Chief Inspector states:
"My concern then was that the pace of change was too slow and the enthusiasm to protect vulnerable people in immigration detention was held back by a narrative that placed abuse of the system ahead of protecting the vulnerable. It is disappointing to see that little has changed." (David Neal, 2023 ICIBI report)
Further, the report highlights contextual issues which exacerbated longstanding problems including the flight to Rwanda in 2022 which led to excessive pressure on Rule 35 reports [3].