Further changes required

68. The Inquiry has not heard evidence of any fundamental changes to the system of safeguards since 2017. There has been no amendment to Rule 34 or Rule 35, nor any significant change in relation to their application in practice. There have been no material changes to the Adults at Risk policy, although in 2018 the definition of torture was amended and, since 2018, there have been weekly Adult at Risk review meetings at Brook House with the attendance of Healthcare and Home Office staff.¹
69. The Home Office told the Inquiry that it had made some improvements in the operation of the system of safeguards under Rule 35. In September 2019, the Rule 35 team was introduced. The team was there to provide a consistent and objective assessment of Rule 35 reports for any individual held in immigration detention managed by any detained casework command, by balancing the evidence within the Rule 35 report (and any other indicators of risk that fall within the Adults at Risk in Immigration Detention policy) against immigration factors.² The number of Home Office staff in IRCs was increased through the Detention Engagement teams (introduced in late 2017 in London IRCs and in early 2019 nationally).³ Case progression panels were introduced to consider whether continued detention is appropriate, considering specific issues in relation to any changes in the vulnerability of detained people.⁴ Following the 2018 Shaw follow-up report, these panels included independent members. However, despite these improvements, the arrangements remain substantially the same in significant respects.
70. Concerns in these areas were not raised for the first time in this Inquiry. They have been repeated in several reports over many years, such as those by Mr Shaw, by Medical Justice, and in litigation, and they have prompted further action.⁵

70.1 NHS England commissioned a mental health needs analysis of IRCs in England from the Centre for Mental Health, a think tank.⁶ This identified a significant need for low-level interventions (such as relaxation and talking therapies) to enable detained people to manage living with the everyday stress of their uncertain situations. It concluded that there was:

“limited support available for trauma across the IRCs and the majority of mental health staff we spoke with did not feel confident in assessing or intervening in trauma”.⁷

The Centre for Mental Health made a range of recommendations, including regular mental health reviews for detained people after 30 days, mandatory induction and annual refresher training in mental health awareness for all IRC staff, and “robust clinical supervision” for mental health practitioners working in IRCs.⁸

70.2 The Home Office introduced its Adults at Risk policy in September 2016. This was intended to respond to a call by Mr Shaw in a 2016 report for a more dynamic understanding of vulnerability.⁹ Mr Shaw identified a number of shortcomings in the way in which the policy was operating and made further recommendations to address them. These included ongoing oversight and monitoring of the policy, a function that was passed to the ICIBI.¹⁰ In a 2018 follow-up report, Mr Shaw noted very little progress on Rule 35:

“In my first report I argued that Rule 35 did not do what is [sic] intended to do, and that the Home Office did not trust the mechanisms it had created to support its own policy (in particular, that there was a lack of trust placed in GPs to provide independent advice). Despite improved training for clinicians, and improved monitoring of the process, nothing I have seen has suggested any fundamental change to this position.”

He went on to recommend the introduction of a new body – independent of the casework decision-maker – to oversee Rule 35 decisions.¹¹

70.3 In response to concerns about Brook House, the Home Affairs Select Committee launched its own inquiry into immigration detention. Its recommendations included the abolition of the three levels of risk for adults at risk and a reversion to the previous policy of a presumption not to detain individuals except in very exceptional circumstances.¹²

70.4 In his 2018 follow-up report, Mr Shaw had recommended that the ICIBI report annually to the Home Secretary on the working of the Adults at Risk process, which the ICIBI agreed to do.¹³ By the time of its second annual inspection, covering the period from July 2020 to March 2021, the ICIBI found that the Adults at Risk policy had become embedded.¹⁴ However, it considered that there was a widespread tendency within the Home Office to view claims of vulnerability and the use of safeguarding mechanisms as spurious and as a misuse of process.¹⁵ Overall, the ICIBI found that progress on addressing previous recommendations had been slow, with no progress of note in addressing the shortcomings in the application of Rule 35. Recommendation 4.1 called upon the Home Office “without further delays” to implement the recommendations in relation to adults at risk that had been set out in previous reports by Mr Shaw, the ICIBI and other statutory bodies. It also asked the Home Office to produce a timetable for this work.¹⁶ The ICIBI made four recommendations in respect of Rule 35, including rolling out training to GPs, reviewing the effectiveness of Rule 35(1) and Rule 35(2) as safeguarding mechanisms and widening the list of those medical practitioners qualified to conduct a Rule 35 assessment to include psychiatrists.¹⁷

70.5 In January 2023, following a third annual inspection, conducted between June and September 2022, the ICIBI stated: “the Rule 35 process needs to be called out for what it is – ineffective”.¹⁸ It noted a focus on torture:

“From a total of 538 reports received by the Home Office between April and June 2022, 517 were R35(3) (torture), 10 were R35(2) (suicidal intention) and 11 were R35(1) (physical health).”¹⁹

The report also rejected the “perception that the Rule 35 process was being abused by detainees”, referring to “limited evidence provided to support this assertion”.²⁰ Its 10 recommendations – all of which were accepted or partially accepted by the Home Office – included “an independent review to develop an in-depth, robust understanding of the abuse of Rule 35”, training “on the purpose and process of Rule 35” and expedition of “the planned review of the Detention Centre Rules which includes the review of Rule 35”.²¹ In relation to training, the Home Office responded that “elements of this recommendation are already in place with wider training on Rule 35 being a regular component of existing training programmes” and that it “has reminded all staff within immigration removal centres (IRC) about the Rule 35 process”. The Home Office also stated that it:

“has restarted work to review the Adults at Risk in Immigration Detention (AAR) policy and Detention Centre Rules 2001 … after this was put on pause in 2021 to allow for a wider review of the immigration system … with the intention of work commencing by the end of the 2022/23 financial year”.²²

71. Regardless of any local improvements that might have been made by healthcare providers and the improvements referred to above made by the Home Office, in my view there is clearly a deep-rooted, systemic problem in relation to the adequacy of the operation of the safeguards under Rule 35.²³ This reflects the conclusions of the ICIBI in its most recent inspection report, discussed above.²¹ At Brook House specifically, this was exacerbated by individual poor practice by GPs in the completion of Rule 35 reports.
72. It is clear that the Home Office was aware of the way in which the safeguards in relation to Rule 34 and Rule 35 were operating at Brook House during the relevant period.

72.1 Ms Calver, Head of Healthcare in Brook House during the relevant time and at the time of the Inquiry’s public hearings, told the Inquiry that, as a result of the IRC forum (meetings attended by the Home Office and representatives from IRCs around the country), the Home Office was aware of the approach being taken to Rule 35 reports, including the thresholds being applied for their completion.²⁴ Ms Calver confirmed the Home Office’s knowledge of the low numbers of Rule 35 reports, alongside 248 ACDTs indicating levels of self-harm and possible suicidality. No concerns were ever raised by the Home Office with Ms Calver concerning the lack of reports under Rule 35(1) and Rule 35(2).²⁵The Home Office took no action. Dr Hard described the number of open ACDTs, the low number of Rule 35(1) reports and the absence of Rule 35(2) reports as “shocking”.²⁶ I agree.

72.2 Dr Oozeerally said that he (and Dr Chaudhary) had raised issues about the Rule 35 process with the Home Office. Dr Oozeerally met with Mr Ian Cheeseman, a policy advisor in the Home Office unit responsible for policy, concerning people deemed to be vulnerable in detention.²⁷ The Inquiry received emails from Dr Oozeerally to Mr Cheeseman that referenced discussion regarding Rule 35.²⁸ The Home Office never raised any concerns with Dr Oozeerally concerning the absence of reports under Rule 35(1) and Rule 35(2).²⁹

72.3 Ms Schleicher told the Inquiry that Medical Justice had repeatedly raised concerns with the Home Office concerning the quality of Rule 35 reports and the subsequent detention reviews. It also raised concerns about the risk that having three separate forms (in relation to each of the individual sub-paragraphs of Rule 35) would deter doctors from completing each one; that the forms may mislead doctors into applying too high a threshold; and about the training on Rule 35. Ms Schleicher said that the Home Office response was generally dismissive and no action was taken.³⁰

73. These examples demonstrate, in my view, an unjustifiable rejection by the Home Office of any criticism or concerns raised. Obvious indications of processes not working as intended, policies not being followed and deficiencies in the operation of the safeguards were ignored. GPs and Healthcare staff in Brook House and Home Office staff failed to apply the safeguards, but the system itself was also dysfunctional. This undoubtedly led to vulnerable people who were at risk of harm being in detention when they should not have been, and without review. Mental and physical health will have deteriorated, and there will have been increased risk of self-harm and suicide, as well as actual distress and harm. Vulnerable people were, accordingly, left susceptible to treatment and abuses of the type seen on the Panorama programme, such as inappropriate use of custodial interventions, segregation, use of force, a culture of disbelief and the mischaracterisation of distressed behaviour as refractory (ie deliberate behaviour that has become difficult or impossible to manage on a residential wing). In my view, it is impossible to separate the treatment from the failures in the safeguards. This situation was completely unacceptable.
74. Safeguarding the vulnerable involves the operation of a complex, technical, legal and policy framework. I do not consider that immigration detention practices have significantly or sufficiently evolved to strengthen safeguards for the vulnerable or to detain people only where there is no other option. As these are matters of significant concern, notwithstanding the issuing of a similar recommendation by the ICIBI in January 2023, I am recommending a review of the implementation of Rule 35 across the immigration detention estate.

Recommendation 9: Review of the operation of Rule 35 of the Detention Centre Rules 2001 The Home Office must, across the immigration detention estate, assure itself that all three limbs of Rule 35 of the Detention Centre Rules 2001 (reports by a medical practitioner where: (i) it is likely that a detained person’s health would be injuriously affected by continued detention (Rule 35(1)); (ii) it is suspected that a detained person has suicidal intentions (Rule 35(2)); or (iii) there is a concern that a detained person may have been a victim of torture (Rule 35(3))) are being followed, are operating effectively, and are adequately resourced, in recognition of the key safeguarding role that the Rule plays. The Home Office must also regularly audit the use of Rule 35 in order to identify trends, any training needs and required improvements.

1. HOM0332050[↩]
2. HOM0332174_002-004 paras 8-16[↩]
3. HOM0332174_004 para 15[↩]
4. INQ000156_94-101 paras 11.6-11.35[↩]
5. The 2016 Shaw report included a recommendation to replace the Rule 35 process with a new mechanism that would be more reflective of and responsive to the dynamic nature of vulnerability (INQ000060_102-109 paras 4.92-4.121 and recommendation 21). Mr Shaw also noted inconsistencies between different parts of the Home Office overseeing detained people in its assessment of their vulnerability, recommending the introduction of a ‘gatekeeper’ to provide consistency across all directorates with responsibility for detention (INQ000060_100-101 recommendation 20). BHM000032_047-048 paras 139-140[↩]
6. Immigration Removal Centres in England: AMentalHealthNeedsAnalysis, Dr Graham Durcan, Jessica Stubbs and Dr Jed Boardman, January 2017[↩]
7. Immigration Removal Centres in England: AMentalHealthNeedsAnalysis, Dr Graham Durcan, Jessica Stubbs and Dr Jed Boardman, January 2017, p35[↩]
8. Immigration Removal Centres in England: AMentalHealthNeedsAnalysis, Dr Graham Durcan, Jessica Stubbs and Dr Jed Boardman, January 2017, p39[↩]
9. See GovernmentResponse to Stephen Shaw’sReview into theWelfare inDetention ofVulnerablePersons[↩]
10. Assessment ofGovernmentProgress inImplementing theReport on theWelfare inDetention ofVulnerablePersons: A Follow-up Report to the Home Office, Stephen Shaw, July 2018, paras 2.135 and 2.136 and recommendation 14[↩]
11. Assessment of Government Progress in Implementing the Report on the Welfare in Detention of Vulnerable Persons: A Follow-up Report to the Home Office, Stephen Shaw, July 2018, paras 2.137-2.149 and recommendation 15[↩]
12. Immigration Detention – Fourteenth Report of Session2017–19, House of Commons Home Affairs Committee, 21 March 2019, p88[↩]
13. Assessment ofGovernmentProgress inImplementing theReport on theWelfare inDetentionofVulnerablePersons: A Follow-up Report to the Home Office, Stephen Shaw, July 2018, recommendation 14[↩]
14. INQ000156[↩]
15. INQ000156_012 para 3.3[↩]
16. INQ000156_016 para 4.1[↩]
17. INQ000156_018 para 4.10[↩]
18. Inspection Report Published: Third Annual Inspection of ‘Adults at Risk in Immigration Detention’, June–September 2022, Independent Chief Inspector of Borders and Immigration, January 2023; see Third Annual Inspection of ‘Adults at Risk in Immigration Detention’, Independent Chief Inspector of Borders and Immigration, January 2023[↩]
19. ThirdAnnualInspection of ‘Adults atRisk inImmigrationDetention’, Independent Chief Inspector of Borders and Immigration, January 2023, para 3.5[↩]
20. ThirdAnnualInspection of ‘Adults atRisk inImmigrationDetention’, Independent Chief Inspector of Borders and Immigration, January 2023, p2[↩]
21. Third Annual Inspection of ‘Adults at Risk in Immigration Detention’, Independent Chief Inspector of Borders and Immigration, January 2023, recommendations 1, 4, 5 and 7 (p3); see also Home Office Response to the Third ICIBI Inspection of Adults at Risk in Immigration Detention, Home Office, 12 January 2023[↩][↩]
22. Home OfficeResponse to theThird ICIBIInspection ofAdults atRisk inImmigrationDetention, Home Office, 12 January 2023[↩]
23. Dr Rachel Bingham 14 March 2022 34/4-13; Dr James Hard 28 March 2022 69/3-70/9, 72/17-19[↩]
24. Sandra Calver 1 March 2022 174/3-175/2, 219/8-220/19, 222/15-21[↩]
25. Sandra Calver 1 March 2022 228/23-25; see also Dr James Hard 28 March 2022 81/4-16[↩]
26. Dr James Hard 28 March 2022 57/17-58/7[↩]
27. Dr Husein Oozeerally 11 March 2022 108/10-109/20[↩]
28. DRO000005[↩]
29. Dr Husein Oozeerally 11 March 2022 61/9-18[↩]
30. Theresa Schleicher 14 March 2022 68/23-70/25[↩]