Hundreds of vulnerable asylum seekers held despite doctors’ fears

Nearly 300 vulnerable asylum seekers held in Dungavel Immigration Removal Centre were refused release over a four-year period despite doctors having submitted special reports expressing concern over their well-being.

Figures obtained by The Ferret using freedom of information legislation reveal that only 29 people out of 323 held in Dungavel between 2012 and 2015 were released following a Rule 35 report.

Rule 35 was devised to protect extremely vulnerable people in detention so that concerns raised by a doctor in an immigration centre would likely result in a detainee with mental health issues and/or alleging torture being released.

Some of the asylum seekers that remained in detention after a Rule 35 report had been rejected by the Home Office had been victims of torture.

Under Rule 35 doctors examine detainees and compile reports that are sent to the Home Office, but there has been growing concern over the way that civil servants apparently disregard these expert medical reports.

The Ferret’s revelation that 294 vulnerable detainees – more than one in ten – were denied release by the Home Office after a Rule 35 report was issued has prompted an angry response.

Kate Alexander, director of Scottish Detainee Visitors, described the figures as “shocking”. She added: “They (the figures) add to the already overwhelming evidence that Rule 35 is completely ineffective as a safeguard against the detention of survivors of torture and other vulnerable people.”

The Shaw Review, published this January, into the welfare of vulnerable people in detention was “scathing” in its assessment of Rule 35, said Alexander, and called for it to be replaced with something that works.

“We’re still waiting and while we wait, people who have survived torture are being re-traumatised by being detained indefinitely in Dungavel and the eight other places like it across the UK.”

Gavin Newlands, SNP MP for Paisley and Renfrewshire North, said: “These shocking figures confirm that the UK Government is detaining vulnerable individuals with the most serious of health conditions. We’ve always maintained that the immigration detention policy of the UK Government is a blight on our human rights record, and these new figures show that this shame knows no limit.

He pointed out that the UK’s “inhumane and ineffective” immigration detention policy allows pregnant women to be held in prison-like settings and that the UK is the only country in Europe that allows people to be detained indefinitely.

“The Home Office’s complete disregard for Rule 35 adds to the long list of contemptible actions taken by the Home Office on our behalf.

“If the UK Government are serious about closing Dungavel, they should use that opportunity to abandon their inhumane, ineffective and counterproductive approach towards immigration detention.”

Lucy Gregg, senior policy advisor at Freedom from Torture, said: “Rule 35 is supposed to prevent the continued detention of torture survivors and other vulnerable individuals. These reports highlight any concerns the doctor has that detention is likely to be harmful, and should trigger an immediate review of the decision to detain.

“But Freedom from Torture believes that failings in the Rule 35 process have contributed to the unlawful detention of many vulnerable people and exemplify the poor treatment that torture survivors seeking protection can experience at the hands of the Home Office.

“Doctors’ reports as part of this process are subjected by the Home Office to a standard of proof that is radically out of kilter with what the rule requires. We have mountains of evidence of the Home Office refusing to release torture survivors in the face of clearly indicated injuries.

“Holding a torture survivor in detention can clearly lead to their re-traumatisation and the Home Office should be making every effort to avoid this.”

In January, an independent report by Stephen Shaw, the former prisons and probation ombudsman, into the welfare of immigration detainees, said that the UK must drastically reduce the use of detention. The review was commissioned by Theresa May when she was home secretary.

Shaw’s report was scathing and said that victims of rape, people suffering post traumatic stress disorder, and people with learning difficulties should not be detained, where possible. He also called for Rule 35 to be immediately scrapped due to strong evidence that it was not working.

“There is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform,” Shaw said in his conclusions.

Refugee Council welcomed the Shaw report in January while Freedom from Torture described it as a “stunning indictment” of immigration detention, adding that Shaw had vindicated its concerns about the operation of Rule 35 doctors’ reports.

However, Freedom from Torture does not want Rule 35 scrapped.

Gregg explained: “Much has been made of Shaw’s recommendation to replace the Rule 35 safeguard with something more robust.

“Shaw recognised that Rule 35 is failing to provide protection to vulnerable detainees and recommends that it be replaced with a system involving forensic medical examiners, university pathology doctors and specialist clinicians from NGOs, which could include Freedom from Torture.

“We have concerns about this recommendation because heightening the level of expertise and qualification required to flag up a concern that someone may have suffered torture will almost certainly raise the evidential threshold, with the practical consequence that survivors may wrongfully remain in detention.

“This would be a perverse result of a reform proposed by Shaw to improve protection for torture survivors in the UK asylum system.

“Rule 35 does not need replacement, it just needs proper implementation. When a doctor expresses concern that someone may be a torture survivor, release should follow in all but the most exceptional cases.”

In May, The Ferret reported fears that lives were being put at risk by the Home Office and its apparent disregard for the human rights of asylum seekers.

We revealed that the Home Office had challenged nearly one out of every five reports compiled by doctors who are experts in torture and who work for Freedom from Torture, with the charity saying then that officials had been refusing to accept Rule 35 reports.

As a consequence, only 15 per cent of Rule 35 reports resulted in someone’s release in 2014.

According to Freedom from Torture, government officials who are unqualified medically have been “pushing up the evidential bar” for people trying to prove they were tortured.

Freedom from Torture added that civil servants were challenging the authority and independence of doctors  while replacing expert medical evidence with their own “pseudo clinical judgement”.

“This is very inappropriate,” Juliet Cohen, head of doctors with Freedom from Torture told The Ferret in May, adding that torture survivors were being denied protection as a consequence.

What is “particularly disturbing”, she continued, is that the Home Office has specific asylum policy instructions for staff on how to assess medical evidence.

These instructions state that doctors writing reports should be accepted as independent experts who adhere to the Istanbul Protocol and its requirement for accuracy and impartiality.

In 2015, Freedom from Torture produced 238 medico-legal reports but Cohen says that 42 were challenged by the Home Office – nearly one out of every five reports submitted.

The Home Office said: “When people are detained it is for the minimum time possible and the dignity and welfare of those in our care is of the utmost importance.

“A Rule 35 report does not and should not automatically result in release, but requires medical staff to provide officials with information about the individual’s well-being. We then carefully consider the facts and make a reasoned decision based on a range of factors.”

Dungavel Detention Centre is to close towards the end of 2017 but the UK Government is seeking to build a short term holding facility near Glasgow Airport. This plan has for now been halted by Renfrewshire Council.

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