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Independent Monitoring Boards

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The role and powers of Independent Monitoring Boards

  1. IMBs operate within IRCs to provide regular and independent oversight with a focus on the welfare of detained people, in accordance with the Immigration and Asylum Act 1999 and the Detention Centre Rules 2001 (the Rules).1
  2. Each IMB is a separate entity with its own statutory duties, and its members (including an elected Chair and Vice Chair) are volunteers drawn from the local community. Members receive training centrally before working within IRCs, followed by a probationary period that includes shadowing existing members.2IMBs meet around once a month, while members are required to visit the IRC at least once a week.3 ‘Rota reports’ reflect these visits and are discussed at monthly meetings. IMB members also receive ‘applications’ (requests and complaints) from detained people. In addition, members are required to be informed by the IRC of certain events, including the use of force, the invocation of Rule 40 and Rule 42 of the Rules, and serious incidents such as death or serious injury of a detained person, ‘concerted indiscipline’ or a security breach by outsiders.
  3. IMBs have important powers in IRCs. Members are permitted to access any area of the IRC at any time, to speak privately with any detained person and to access any records held by the IRC (save for certain confidential or classified information). They must satisfy themselves of the state of the premises and the treatment of detained people, and they are required to inform the Secretary of State of certain welfare concerns.4 They must also report annually to the Secretary of State.5
  4. While IMBs must alert managers to problems, raise concerns with the Secretary of State and make recommendations, they have no power to enforce change.6

The Independent Monitoring Board at Brook House during the relevant period

  1. The Chair of the Brook House IMB during the relevant period was Ms Jacqueline Colbran; the Vice Chair was Mr Richard Weber. There were seven other board members.7 In 2017, members visited Brook House 205 times; these visits included a mixture of weekly rota visits, meetings and attendances at serious incidents.8
  2. The weekly rota reports completed by Brook House IMB members varied in quality; some were brief and vague.9 All followed the same style, describing the IRC wing by wing, then describing other areas, such as the kitchen and gym, and providing a description of the people detained there. A new framework for weekly reporting was adopted in 2020 that emphasises welfare and rights-based issues, with headings such as “safety” and “health and wellbeing”.10 Ms Mary Molyneux, Chair of the Brook House IMB after the relevant period and a current member of the IMB at Gatwick IRCs, told the Inquiry that the adoption of this new approach had led to more detailed consideration of issues underlying the behaviour of detained people.11I agree with Professor Mary Bosworth, the Inquiry’s cultural expert, that such a thematic, rights-based approach is preferable. It is a welcome development that should be considered by other IMBs.
  3. During the relevant period, monthly Brook House IMB meetings were attended by IMB members, G4S management (usually Mr Saunders) and Home Office representatives including Mr Paul Gasson (Contract Monitor at Brook House) and occasionally Mr Ian Castle (Home Office Detention and Escorting Services (DES) Area Manager) or Ms Smith.12 Before each meeting, the Brook House IMB received a “combined report” from G4S and the Home Office containing data such as occupancy, the number of Rule 35 reports and how many had led to release, instances of the use of force, the number of detained people subject to Rule 40 and Rule 42, and the number of acts of self-harm.13 Minutes were taken by the ‘IMB clerk’, a Home Office employee based at Brook House who performed this function among others. Parts of the meeting held without Home Office presence were minuted by an IMB member, although the minutes were signed off by the Brook House IMB Chair.14 I consider it inappropriate that minutes at IMB meetings were taken by Home Office employees. The IMB should always be aware of the importance of maintaining independence and the perception of independence.
  4. The 2016 IMB report raised some concerns, including about access to mental healthcare, the introduction of a third bed into some cells and the duration of some detention periods.15 The report, however, was overly positive:

“Once again the IMB judges Brook House IRC to be a well-run establishment, providing a decent environment where detainees awaiting removal are treated humanely and fairly … There is a real will among the management team to seek to improve and a ‘can-do’ culture of transparency. This attitude permeates to the officers in their attitude to the IMB, which is one of cooperation and helpfulness.”16

In the 2017 IMB report, referring to the Panorama programme, the Brook House IMB expressed horror at the “unacceptable behaviour of the small group of staff shown in the footage”, recording that the IMB had neither witnessed any such ill treatment nor had any indication that it was happening.17 The IMB subsequently accepted “that the mistreatment and abuse within Brook House was even more widespread than was shown on Panorama”.18

Adequacy and limitations of the Independent Monitoring Board during the relevant period

  1. Evidence disclosed to the Inquiry by the IMB showed that members frequently raised concerns about individuals and about conditions at Brook House more generally.19 Examples included concerns raised in monthly meetings about the use of handcuffs and waist restraints, and the increased use of Rule 40 and Rule 42.20
  2. However, a variety of factors limited the Brook House IMB’s ability to monitor the welfare of detained people and to identify the risk of, or actual, poor treatment during the relevant period:
  • The IMB was not sufficiently challenging of G4S or the Home Office.
  • Many detained people did not know about the IMB.
  • IMB members were and continue to be volunteers, lacking expertise and knowledge in some areas they were expected to monitor.
  • The IMB does not have a national statutory basis or the power to enforce change.

Failing to challenge G4S or the Home Office

  1. Effective oversight by the IMB requires uncompromising independence and the willingness to raise concerns robustly. Evidence has demonstrated that this was not always the case.

23.1 Serious concerns, even when identified, were pursued insufficiently. For example, Brook House IMB documents from May 2017 show that two members were separately concerned that Healthcare was “very busy” and unable to carry out initial health assessments within a suitable time frame, which “may place vulnerable arriving detainees at risk”.21 When raised at the monthly meeting, the minutes simply read “DW [Mr Weber] asked if any impact had been noticed from the increase in population. SS [Mr Stephen Skitt, Deputy Director of Brook House during the relevant period] had not been made aware of any issues.”22 It was insufficient simply to ask G4S about any impact. The IMB should have raised this as a serious failure, asking both G4S and the Home Office what was going to be done to ensure that health assessments were undertaken within the appropriate timescale and the identification of vulnerable people was not delayed. Ms Colbran suggested that there “would have been more discussion” that was not recorded in the minutes.23 In my judgement, that is unlikely. Had there been an appropriate discussion about these concerns, it would likely have been recorded.

23.2 The Inquiry heard that the Brook House IMB requested from the Home Office, but did not receive, detailed data on the number of Rule 35 reports.24 Ms Colbran did not consider that the Home Office was trying to be “difficult”, although she later accepted that this was information the IMB was entitled to see, that it should have been simple to provide and that she could have taken further steps to obtain it.25 In addition, the continued very low number of Rule 35(1) and Rule 35(2) reports was not mentioned in the 2017 IMB report.26 The IMB should have pressed harder for the data or escalated the issue. Ms Colbran, in particular, was too willing to accept without due challenge the Home Office’s excuses for refusing to provide the information.27 IMB members must be made aware of their specific legal powers under the Rules, including powers to access records, and they must be empowered to exercise these powers where appropriate. However, the underlying failure here was with the Home Office for failing to provide data that the IMB had requested and was entitled to receive.

23.3 HMIP and the IMB are intended to have separate but complementary roles. Dr Hindpal Singh Bhui, Inspection Team Leader at HMIP, referred to the risk of over-empathising with the establishment. He considered maintaining independence to be difficult for part-time volunteers.28 An email from Ms Colbran to Dr Singh Bhui on 14 November 2016 demonstrates that this was a problem at Brook House. The Brook House IMB, having seen an HMIP post-inspection debrief, wrote to inform HMIP that the IMB “finds Brook House to be a well-run establishment, aiming to improve and with a remarkable attitude of care to the detainees from the staff”, adding that it was “a shame” that HMIP’s evaluation did not exceed “reasonably good” in any category.29 In my view, this was an entirely inappropriate attempt by the IMB to influence HMIP’s assessment of Brook House. It demonstrated that the IMB was too closely aligned to the establishment and failed to appreciate the vital role of both the IMB and HMIP in “the prevention of torture and other cruel, inhuman or degrading treatment or punishment”, as required by OPCAT. Ms Colbran denied that this was her intention.30 However, Ms Molyneux considered that the email was inappropriate.31

23.4 Further concern arises from the relationship between the Brook House IMB and Gatwick Detainees Welfare Group (GDWG) during the relevant period. The IMB was aware of the level of “suspicion” the Home Office held towards GDWG.32 Correspondence between the IMB and GDWG suggested an obstructive attitude. For example, the IMB’s response to GDWG raising concerns about a disputed minor was that it was “outside our remit”.33 At a meeting in November 2017, the IMB repeated a list of G4S complaints about GDWG, and Ms Colbran described much of the Panorama programme as “dramatic music, blurry images giving the impression of chaos, and ‘fluff’”.34 GDWG was later informed by an external evaluator that the IMB felt that GDWG “sometimes strayed over the boundaries and gave advice to detained persons”.35 Ms Molyneux told the Inquiry that she now accepted that the IMB was too affected by Home Office and G4S managers’ views of GDWG.36 She agreed that the IMB should have formed its own views on GDWG, commenting that the IMB was working to improve that relationship and to overcome “understandable mistrust”.37

  1. This insufficiently challenging approach continued even after the Panorama programme. The 2017 IMB report referred to unacceptable behaviour by a “small number of staff” and said that Brook House largely kept detained people as safe as it could.38 Ms Colbran subsequently accepted that this was a “misjudgement” and that the report “should have been more critical and challenging”.39 It is concerning that, even after the abuses during the relevant period were known, the IMB seemed unwilling to criticise obvious failures and remained too sympathetic towards G4S and the Home Office.
  2. Evidence of mo re recent practice by the IMB (such as the new rights- based forms) and its recognition of the importance of its role and independence provides some reassurance.((IMB000217 ) The Inquiry also heard evidence of more recent and useful work conducted between the IMB and HMIP to resolve specific concerns.40 However, IMB members must be aware of the risks of ‘institutionalisation’ and be prepared to take robust positions to protect detained people’s welfare.

Many detained people did not know about the Independent Monitoring Board

  1. The Inquiry heard and received evidence from a number of formerly detained people who had not heard of the IMB and did not understand its role or how to complain.41 Witnesses to the Inquiry, and Brook House IMB’s own records, showed that there were issues with IMB forms not being placed on the wings, necessitating “a constant chasing exercise with G4S”. Ms Molyneux attributed this to overworked staff rather than deliberate obstruction.42 The Inquiry was told that this is no longer an issue.43
  2. Some detained people did not see the IMB as an independent body.44 The IMB acknowledged that some detained people believe that it is part of the Home Office.45 Mr Jamie Macpherson, a GDWG visitor, also told the Inquiry that the IMB was seen by some detained people as “part of the system”, in part due to members’ free access around Brook House.46 Ms Molyneux did not agree.47 She accepted that evidence showed that some detained people were not aware of the IMB, an area that she acknowledged requires work.48

Knowledge and experience of members

  1. During the relevant period, the volunteer members of the IMB were at times expected to reach a view on matters about which they had insufficient understanding. This understandably risked the IMB failing to uncover issues or being inappropriately reassured by G4S and the Home Office.
  2. The IMB was required to be notified when force had been used. Members were entitled to observe planned uses of force if they were present in the IRC, or otherwise to review paperwork and footage following the event.49 As noted by Dame Anne Owers, National Chair of the IMB, and as was apparent in IMB meeting minutes from the relevant period, the Brook House IMB was not always proactively provided with Use of Force paperwork.50 IMB members were invited to Use of Force scrutiny meetings, of which there were four in 2017. The purpose of these meetings was said to be to review data on use of force along with written reports and footage. Ms Molyneux recalled that the IMB member attending “may be asked … for our impressions of footage reviewed” but considered that the IMB’s “primary focus was on governance: seeing how the meeting was run and what kinds of issues were covered”.51
  3. Brook House IMB members received no training on the use of force, apart from a session on defensive techniques led by DCO John Connolly that was designed to protect members, not to teach them about the lawful use of force on detained people.23 While it is important that an independent observer is present, wherever possible, when there is a use of force, and that they provide oversight of unplanned events by way of review, there was a lack of clarity over IMB members’ role at use of force incidents. Their role at such incidents is not made explicit by the Home Office in any written policy. IMB members’ views will be limited by a lack of expertise in the lawful and proportionate use of force, and their oversight role cannot eclipse the primary responsibility for ensuring that force is used lawfully, which lies with the Home Office and its contractors.
  4. The Inquiry also heard that the Brook House IMB “could not see the contract between the Home Office and G4S as it was commercially sensitive”, although Ms Smith appeared to believe that the IMB had some role in scrutinising contractual self-reporting.52 IMB members are not and should not be acting as contractual monitors, checking compliance or raising concerns that a contractor is not meeting its obligations to the Home Office. I agree with Ms Molyneux, who considered that this was a role for the Home Office itself:

“I do not think that it is the IMB role to be checking whether a supplier is complying with the contractor the laws or whatever .I think we do, as we said at the beginning…treatment, conditions, administration.”53

Inconsistent legislation and lack of enforcement powers

  1. The Inquiry heard evidence of a disconnect between what the IMB is required by legislation to do and what in fact occurs. For instance, the Rules provide that an IMB member must, within 24 hours, visit any detained person subject to Rule 40 (removal from association), Rule 42 (temporary confinement) or Rule 43 (under special control or restraint).54 This did not happen, as the Home Office and G4S were aware.55
  2. Dame Anne Owers explained that the Rules “are out of date and do not properly reflect current best practice”, and that the Home Office had declared its intention to update them.56 The IMBs made representations on this issue in 2018, yet no new rules have been laid before Parliament.57 It is inexplicable that the legislation governing the IMB’s important safeguarding role has not been updated for so long.
  3. While each IMB has an independent status and powers derived from legislation, there is no statutory basis for the National Chair and Management Board of the IMBs. This national body is responsible for setting strategies and procedures for the work of the 127 individual IMBs and for working with unpaid regional representatives. The national IMB can provide advice, guidance and training to IMBs. However, as each IMB is a separate entity, the structure does not allow for supervision at a national level.58 Dame Anne Owers also told the Inquiry that the Government has committed “in principle” to providing a statutory basis for the national IMB, but that no action has been taken.59 This significantly limits the extent to which individual IMBs and their members can be supported and supervised by the National Council for IMBs.60A Memorandum of Understanding between the Home Office and the Management Board of the IMBs was signed in June 2020, setting out some of the IMBs’ roles in IRCs.61 However, this does not have the force of law.
  4. More fundamentally, the IMB is limited in what it can achieve. Even a robust and well-informed IMB can only raise concerns. It lacks the power to enforce change.

35.1 In its report for 2016, for example, the IMB clearly stated that the Care and Separation Unit was inappropriate for detained people with mental health issues. Its view was that a solution was required to address long- term detention, and it suggested mental health training for officers.62 At the time of the Inquiry’s hearings, these issues remained unresolved.63

35.2 Ms Molyneux also gave evidence about poor compliance with Rule 35 practice after the relevant period. She told the Inquiry that there had been no Home Office action on these issues and that the IMB would need to repeat the recommendations in its next report and look to find different ways to monitor the Rule 35 process.64 Ongoing monitoring of Rule 35 is important and must continue. However, this issue illustrates the limits of the IMB’s power. Repeating the same concern in annual reports does not mandate any action by the Home Office, contractors or others. The IMB can make a difference only if the Home Office (or other relevant entity) is willing to listen to and address concerns.

The Independent Monitoring Board at Brook House since the Panorama programme

  1. Some of the changes to the Brook House IMB after the relevant period, such as the use of rights-based forms for rota visits and the relationship with GDWG, demonstrated a significant level of reflection by the IMB on the relevant period and a commitment to improvement. This is to be commended and must be maintained. The UN SPT, during its visit to Heathrow immigration removal centre in September 2019, commended the dedication of IMB volunteers there and welcomed the IMB’s presence in the IRC. It also noted concerns that the IMB was regarded more as a body that monitored day-to-day life in the IRC rather than as an “interlocutor working for human rights of persons deprived of their liberty”.65 The rights protection role of IMBs must remain at the front and centre of their work.
  2. One particular example of action taken by the Brook House IMB since the Panorama programme demonstrates the improvements to the organisation while underlining the limits of its power. In late 2020, Brook House housed asylum seekers due to be removed on a concentrated programme of charter flights to European Union (EU) countries, prior to the UK’s withdrawal from the EU. In a letter dated 2 October 2020, Ms Molyneux and Ms Lou Lockhart- Mummery of the IMB set out the effects of the charter programme on the detained people in robust and clear terms, which they said amounted to “inhumane treatment”. 66 The criticism was not of Brook House staff but of the circumstances around detention and removal, which were leading to markedly increased levels of self-harm and distress among those being removed, a backlog in the Rule 35 process and an overall ill-effect on the wider Brook House population. The letter was sent to Mr Chris Philp MP, then Minister for Immigration Compliance and Courts, pursuant to the IMB’s obligation to report such matters.67 Many other Home Office officials received a copy. It was appropriate to raise these issues in this way given the urgency and the gravity of the concerns, and the letter was well supported by evidence and squarely focused on the IMB’s remit: the welfare of detained people.
  3. It is unacceptable, given the obvious urgency of the issues raised, that no response was received from the Home Office until 25 November 2020.68 Ms Molyneux’s view was that the response did not answer the concerns in a meaningful way; it was “all about process” rather than engaging with the impact of the flights on the detained people.69 I agree. The response arrived on the day when Ms Molyneux and Dame Anne Owers were due to give evidence before the Home Affairs Select Committee in relation to Channel crossings, migration and asylum-seeking routes through the EU. I share Ms Molyneux’s impression that the timing was a cynical attempt by the Home Office to head off any criticism for not responding.70
  4. Ms Molyneux told the Inquiry that writing such a letter was practically “the limit” of the power the IMB can exercise: “you hope you never have to get to that”.71 I agree that, despite the inadequacy of the response, there was value in sending the letter. The wilful inaction shows, however, that while the IMB can monitor and raise concerns, preventing ill treatment requires those concerns to be heeded.
  5. IMBs cannot be expected to be the sole monitors of detained people’s welfare; ultimate responsibility lies with the detaining organisations. However, independent, robust and properly governed IMBs are an important safeguard in the immigration detention setting. I am therefore recommending that their concerns be publicly addressed and consideration be given to their legal status.
Recommendation 32: Enhancing the role of the Independent Monitoring Boards

The government must:
●  respond to and publish responses to all concerns raised by any Independent Monitoring Board regarding immigration removal centres;
●  take steps without further delay to amend the Detention Centre Rules 2001, in so far as they govern Independent Monitoring Boards, in order to accurately reflect their current role; and
●  consider whether to put the National Chair and Management Board of the Independent Monitoring Boards on a statutory footing.

References

  1. Immigration and Asylum Act 1999, section 152; Detention Centre Rules 2001, Part VI[↩]
  2. Jacqueline Colbran 25 March 2022 4/13-17[↩]
  3. IMB000199_003-004 paras 9-10; Detention Centre Rules 2001, Rule 60 and Rule 63(1[↩]
  4. Detention Centre Rules 2001, Rule 61(1) and Rule 61(4[↩]
  5. Detention Centre Rules 2001, Rule 64[↩]
  6. IMB000199_003 para 8[↩]
  7. IMB000004[↩]
  8. IMB000135; IMB000204_006 para 14[↩]
  9. IMB000041; IMB000059[↩]
  10. IMB000200[↩]
  11. Mary Molyneux 25 March 2022 99/13-21[↩]
  12. Jacqueline Colbran 25 March 2022 43/3-21[↩]
  13. IMB000021; IMB000050; IMB000011; IMB000047; IMB000019[↩]
  14. Jacqueline Colbran 25 March 2022 44/8-18[↩]
  15. IMB000121_008; IMB000121_007 para 4.2[↩]
  16. IMB000121_007 para 4.1[↩]
  17. VER000138_004[↩]
  18. Closing Statement on behalf of the IMB, Brook House Inquiry, 29 April 2022, paras 12 and 13[↩]
  19. IMB000222_021-024 para 56[↩]
  20. IMB000222_021-024 para 56; IMB000055_006; IMB000005_002; IMB000014_001; IMB000062_002[↩]
  21. IMB000009_002; IMB000012_003[↩]
  22. IMB000030[↩]
  23. Jacqueline Colbran 25 March 2022 60/5-13[↩][↩]
  24. Mary Molyneux 25 March 124/9-126/20; Jacqueline Colbran 25 March 2022 56/23-25–57/19; Mary Molyneux 25 March 2022 126/7-20[↩]
  25. Jacqueline Colbran 25 March 2022 56/23-25–57/19[↩]
  26. VER000138_020 para 8.12[↩]
  27. Jacqueline Colbran 25 March 2022 56/23-57/2[↩]
  28. Dr Hindpal Singh Bhui 24 March 2022 141/9-14[↩]
  29. HMIP000148[↩]
  30. Jacqueline Colbran 25 March 2022 32/23-33/12[↩]
  31. Mary Molyneux 25 March 2022 106/23-107/5[↩]
  32. Jacqueline Colbran 25 March 2022 15/12-17; GDW000007_001[↩]
  33. GDW000003_038[↩]
  34. VER000110; IMB000204_053 para 155; GDW000001_020-021 para 62. Ms Pincus felt that this reflected the IMB’s tendency to accept uncritically what went on at Brook House (DPG000002_071 para 199; Anna Pincus 9 December 2021 120/12-17[↩]
  35. DPG000002_068 para 191[↩]
  36. Mary Molyneux 25 March 2022 148/11-17[↩]
  37. Mary Molyneux 25 March 2022 150/3-17[↩]
  38. VER000138_007[↩]
  39. IMB000204_062-063 para 186[↩]
  40. IMB000217[↩]
  41. DL0000229_091 para 299; DL0000143_029 para 108; DL0000288_013 para 53; D643 22 February 2022 68/5-7[↩]
  42. Mary Molyneux 25 March 112/13–113/5; see, for example, IMB000012_002[↩]
  43. Mary Molyneux 25 March 112/13-113/18[↩]
  44. DPG000021_039 paras 115 and 116[↩]
  45. IMB000222_014 para 36c(ii); DPG000021_039 para 116[↩]
  46. Jamie Macpherson 8 December 2021 196/13-197/5[↩]
  47. IMB000203_016-017 para 51[↩]
  48. IMB000203_015 para 47[↩]
  49. IMB000199_014-015 paras 42 and 43[↩]
  50. IMB000199 para 42[↩]
  51. IMB000203_028-029 paras 87-89[↩]
  52. IMB000204_029 para 88; Michelle Smith 23 March 2022 126/10-21[↩]
  53. Mary Molyneux 25 March 2022 172/2-18[↩]
  54. Detention Centre Rules 2001, Rule 62(1); IMB000204_034-035 para 103[↩]
  55. IMB000030_001[↩]
  56. IMB000199_006-007 para 17; IMB000199_015 para 44[↩]
  57. IMB000199_006-007 para 17 [↩]
  58. IMB000199_001 para 2; IMB000199_020 para 62[↩]
  59. IMB000221_009 para 32[↩]
  60. IMB000199_006-007 para 17 ; IMB000199_008 para 23; IMB000199_020 para 62 [↩]
  61. IMB000187[↩]
  62. IMB000121_008; IMB000121_016 para 5.7.5[↩]
  63. PPG000205[↩]
  64. Mary Molyneux 25 March 2022 132/22-24; IMB000203_021-022 para 66[↩]
  65. Visit to United Kingdom of Great Britain and Northern Ireland Undertaken from 9 to 18 September 2019: Recommendations and Observations Addressed to the National Preventive Mechanism, Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 February 2020, CAT/OP/GBP/RONPM/R.1[↩]
  66. DL0000140_113-116[↩]
  67. Detention Centre Rules 2001, Rule 61(3) and Rule 61(5[↩]
  68. IMB000206[↩]
  69. Mary Molyneux 25 March 2022 162/1-21[↩]
  70. Mary Molyneux 25 March 2022 163/2-13[↩]
  71. Mary Molyneux 25 March 2022 163/22, 154/21-22[↩]
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