Inappropriate use

28. The Inquiry also received detailed evidence about the ways in which Rule 40 and Rule 42 were used in Brook House. My concerns fall into four key themes:

• the multi-purpose use of E Wing;
• use as a punishment;
• use for administrative convenience; and
• use to manage mental health.

Multi-purpose use of E Wing

29. When a detained person is held under Rule 40 or Rule 42, they must be accommodated in a room designed and certified for that purpose.¹
30. At Brook House, that was within the Care and Separation Unit (CSU) or the E Wing.² E Wing, which has 13 cells, was also used to house detained people during their first and last nights at Brook House, those at high risk of self-harm, those with medical or mental health concerns and those with a particular vulnerability. Within E Wing, the CSU was behind a steel gate and contained a further six cells.³

Figure 32: E Wing and entrance to CSU

31. The Inquiry heard conflicting evidence about where detained people subject to Rule 40 were accommodated. DCO David Webb told the Inquiry that if someone was being managed through Rule 40 or Rule 42, they would be in the CSU and not E Wing.⁴ However, his evidence was contradicted by that of Mr Dix, who confirmed that detained people subject to Rule 40 could be placed on E Wing rather than in the CSU.⁵ In addition, in its report for the reporting year 2020, the Brook House IMB noted that detained people subject to Rule 40 could be located in the CSU and on E Wing.⁶ In my view, detained people being managed through Rule 40 were housed on E Wing as well as within the CSU.
32. Housing detained people who were being temporarily removed from association or confined as a result of their behaviour under Rule 40 on E Wing resulted in them living alongside vulnerable detained people who were suffering from mental health disorders or who required protection from other detained people. While Sandra Calver (Head of Healthcare at Brook House during the relevant period and at the time of the Inquiry’s public hearings) described E Wing as the “calmer wing”, that description was undermined by other evidence to the contrary.⁷ For example, Reverend Nathan Ward (former Head of Tinsley House) described a “toxic cocktail” where “the most vulnerable and the most violent” were inhabiting the same space.⁸ Mr Owen Syred (a DCO and Welfare Officer during the relevant period) told the Inquiry that a conflict arose from the multi-purpose use of E Wing and that “people down there didn’t feel safe”.⁹ He said that housing the most vulnerable detained people next to those being managed through Rule 42 “prevented them sleeping, it made them anxious”.66 D2033 described being held on E Wing on his first night (not subject to Rule 40 or Rule 42):

“When I arrived at the wing on my first night I realised that the wing

I had been placed in was where the troublemakers or disturbed people were, those who were fighting and causing trouble. It was clear that this was an exceptional wing for exceptional people. The reason why I say this is that when I was taken to my room the troublemakers were shouting and banging on the doors to their rooms. The person just next to my room was constantly kicking the door throughout the night. This was very alarming.”¹⁰

I also consider a number of events that occurred on E Wing in Part C in Volume I of this Report.

33. In my view, there was a failure by G4S to properly consider the impact of this approach on detained people. It appears that this practice continues under Serco’s management of Brook House, as Mr Dix also confirmed that people placed subject to Rule 40 might be put on E Wing rather than in the CSU.¹¹ I am therefore recommending that the multi-purpose use of E Wing be reviewed.

Recommendation 11: Review of the use of E Wing at Brook House The Home Office and the current operator of Brook House must keep under review the appropriateness of the multi-purpose use of E Wing, particularly in relation to its suitability as a location to detain vulnerable people.

Use as a punishment

34. As set out in Rule 42 itself and in the Restrictions DSO, neither Rule 40 nor Rule 42 can be used as a punishment.¹² They must only be used “as a last resort, when all other options have been exhausted or are assessed as likely to fail or to be insufficient as an effective means to address the risk considered to be presented by the detained individual”.¹³
35. However, this does not reflect the evidence received by the Inquiry about the use of Rule 40 at Brook House.

35.1 Mr Skitt said that Rule 40 was the “only policy” in place to deter poor behaviour.¹⁴

35.2 DCM Nathan Ring described Rule 40 as a “repercussion” for misbehaviour by detained people. He initially offered it as an example of an available punishment, although he then added that he did not personally see it in this way.¹⁵

35.3 Mr Tulley explained that people would be held subject to Rule 40 for “refusal to transfer or to be deported or to go down to E wing, or …

non-compliant behaviour, violent behaviour, fighting, protesting … it was used as a form of punishment”.¹⁶ He said they were explicitly told in their training that “it was not to be used as a form of punishment, but it was quite obvious that it was”.¹⁷

36. There is evidence that suggests that Rule 40 was used as a form of punishment at Brook House during the relevant period.

36.1 D2553 was placed subject to Rule 40 in May 2017 after hiding in another room and causing a delay to a roll count.¹⁸

36.2 D728 had been placed subject to Rule 40 due to his assessed high risk of self-harm. DCO Charles Francis, attending his cell, said:

“Right. If I have to come back here again. You won’t be going anywhere today. You’ll be staying down here permanently. You understand?”¹⁹

36.3 D114 was placed subject to Rule 40 in June 2017 after stealing a box of coffee. Although the reason for removal from association is recorded as being “to maintain good order within the centre” after he admitted taking the coffee, it is unclear why that was necessary.²⁰

36.4 On 4 May 2017, D1527 climbed onto the safety netting and refused to engage with staff members.²¹ After a short while, he agreed to come off the netting and went to his cell to calm down. As recorded in his incident report, Mr Dix later went to D1527’s cell and explained that “due to his behaviour he would need to comply and go to the CSU on rule 40”.²² However, D1527 had already come off the netting and returned to his cell. There appears to be no basis for Rule 40 being used to justify moving D1527 to the CSU. Mr Dix’s note stated that the move was “due to his behaviour”. It suggests that D1527 was moved to the CSU as a punishment. Indeed, this is consistent with Mr Dix’s erroneous belief that Rule 40 was a “disciplinary process”.²³

37. It is clear, therefore, that Rule 40 was improperly used as a punishment by some members of staff at Brook House, even in response to minor behavioural issues, notwithstanding the fact that this was not a permissible use of the Rule. Some staff at Brook House did not have a clear understanding of when Rule 40 could be used, while others may have used Rule 40 because they felt they had no other means of dealing with poor behaviour.²⁴

Use for administrative convenience

38. While it was permissible, according to G4S policy, to use E Wing to accommodate detained people on their last night in Brook House where it was suspected that they may attempt to disrupt a transfer or removal, the Inquiry received evidence that suggested that some detained people were moved to E Wing and additionally placed subject to Rule 40 seemingly for reasons of pure administrative convenience. This is significant because a detained person held on E Wing under Rule 40 would be restricted in their ability to associate with others and move around the centre.²⁵ By contrast, a detained person held on E Wing for other reasons would have full freedom of movement and association within the wing and the remainder of Brook House.
39. DCM Stephen Webb referred to considering using Rule 40 on a detained person as “killing two birds with one stone”.²⁶ He explained that this was because the detained person had threatened to self-harm and had a flight the following day.²⁷ This appears to suggest the fact that the convenience of placing the detained person subject to Rule 40 the day before the flight was part of the decision to authorise Rule 40.
40. D1914 described being forcibly removed to E Wing and placed subject to Rule 40 in preparation for his planned removal the following day.²⁸ It is not clear from the records why D1914 was placed subject to Rule 40. The records state that D1914 was placed subject to Rule 40 for “refusing to relocate to E Wing” and to “maintain good order and discipline of the centre”.²⁹ However, the IS.91RA Part C form records: “he stated that he would kill himself rather than return to Romania, because of this threat he has now been placed onto ACDT [Assessment Care in Detention and Teamwork] constant supervision and is now on Rule 40”.²⁹ While it may be justifiable in certain circumstances to relocate a detained person to E Wing ahead of their imminent removal, it is not appropriate for that detained person additionally to be managed through Rule 40 while on E Wing where they do not separately satisfy the criteria for Rule 40.³⁰ If there was a genuine concern that it was necessary to place D1914 subject to Rule 40 for his own protection (due to the risk of suicide), that should have been made clear in the records. In my view, the documentation gives the distinct impression that D1914 was inappropriately placed subject to Rule 40 as a first response to his suicide threat and/or for the administrative convenience of staff.
41. Similarly, D313 described being held subject to Rule 40 before his proposed flight on 30 May 2017.³¹ It is unclear why this was done.
42. The 2020 IMB report stated that Rule 40 had been simultaneously used on 45 detained people in February 2020 (when Brook House was run by G4S) to manage removals for a charter flight to Jamaica, despite some of these detained people not being scheduled to fly and others having not given any indication that they would resist removal. The Brook House IMB “questioned whether this pre-emptive use of Rule 40 was justified and unnecessarily inclusive”.³²
43. Mr Hewer’s evidence to the Inquiry was that Rule 40 is no longer used pre-emptively in advance of charter flights. He said that it is only used in advance of charter flights as a last resort and, where required, where “it is appropriate and affects the good order and stability of the centre”.³³ However, the 2021 IMB report concerning both the Gatwick IRCs noted that “on nine occasions, men have been held in separation to facilitate their removal … The Board questions the necessity, appropriateness and legality of using Rule 40 as a blanket approach in such circumstances.”³⁴ This appears to question the accuracy of Mr Hewer’s evidence on this point. The report also referred to:

“several instances of men remaining in the CSU after expiry of Rule 40 separation because it has been difficult to determine where, given Covid related restrictions, they could be returned to. While we understand the constraints and have not received any specific complaints from men thus detained, the Board is concerned by this consequence of COVID-19 management. The Home Office and Serco have developed the custom of calling this ‘Rule 15’, referring we believe to Detention Centre Rule 15, which in fact only concerns the certification of rooms for particular purposes. It does not grant any power to Home Office or Serco to detain a man separate from the facilities of the centre (as the CSU does). We are concerned that keeping men in CSU on ‘Rule 15’ can amount to de facto separation – for example the gate between CSU and E wing has been locked when Board members have visited men in CSU on ‘Rule 15’. ‘Rule 15’ has also been used to place men in CSU for a short time prior to leaving for a charter flight.”³⁵

44. This more recent evidence indicates that there may be continuing problems with the use of segregation for the convenience of staff under Serco’s management of Brook House.

Use to manage mental health

45. It is clear that Rule 40 and Rule 42 should not be used as “a normal means to manage detainees with serious psychiatric illness or presenting with mental health problems”.³⁶
46. Where detained people are vulnerable:

“Special care and caution is needed in relation to decisions to use Rules 40 and 42 … Specific account must be taken of any adverse effect that use of the Rules may have on the individual in light of their circumstances and steps should be taken to mitigate any adverse effects.”³⁷

The use of Rule 40 and Rule 42 in such cases will be “exceptional”, where it is “justified on the basis of the risk presented”.³⁸ This is because particular care is needed to ensure that “the general requirements that use of the Rules is for the shortest time possible and only as a last resort are met in these cases”.³⁹

47. Where a detained person is at risk of suicide or self-harm, Rule 40 and Rule 42 should only be used in “exceptional circumstances”, for the “shortest time possible” and “as a last resort where all other options for managing the behaviour have been considered and exhausted, or considered to be inappropriate”.⁴⁰
48. Despite this clear mandatory guidance, there was evidence that Rule 40 and Rule 42 were used inappropriately by some members of staff to manage detained people with mental ill health during the relevant period. Mr Syred said that Rule 42 was used by staff to manage detained people suffering from mental health issues, and he thought that this was because those detained people were inherently difficult to manage.⁴¹ Dr Bingham noted that there was evidence, for example, that D1255 was moved to the CSU for three days under Rule 40 for his “own protection” after he displayed “strange behaviour” and self-neglect, which was causing issues with other detained people.⁴² DCO Ryan Bromley admitted that he was “quite possibly” aware that it was common for people who were at risk of self-harm to be moved to E Wing under Rule 40, rather than just being moved there.⁴³
49. Dr Bingham said it was not only that segregation was not a mental health treatment, but also that it was “worse than nothing, because it’s actually something that would harm [their] mental health”.⁴⁴ Nonetheless, Dr Bingham noted that:

“a recurrent pattern that emerges on the available evidence is the use of segregation, both under the rule 40 and 42 safeguards and held on E wing, as a mechanism to manage detainees suffering from mental illness or risk of suicide and harm”.⁴⁵

Dr Hindpal Singh Bhui, Inspection Team Leader at HM Inspectorate of Prisons (HMIP), agreed that Rule 40 was not appropriate for people with mental health difficulties.⁴⁶

50. It is particularly concerning that this approach was still pervasive during the relevant period, as the 2016 IMB report specifically noted:

“the use of the CSU for detainees with mental health issues continues to reflect a worrying lack of specialist accommodation within the detention estate and the wider NHS … The IMB remains clear in its view that the CSU is not an appropriate location for detainees with mental problems. It simply represents the least worst option.”⁴⁷

The following year, the Brook House IMB noted that this inappropriate use of the Rules persisted.⁴⁸

51. Mr Riley accepted that repeated comments of this nature by the Brook House IMB were “a concern”.⁴⁹ I would go further. It is unacceptable that concerns about the use of Rule 40 on detained people with mental health issues were specifically raised in two consecutive Brook House IMB reports, and yet the Home Office and G4S failed to adequately address those concerns.
52. In addition, the monitoring of detained people under Rule 40 by healthcare staff at Brook House was itself also inadequate. Healthcare staff failed to adequately identify concerns about detained people’s suitability for being subject to the continued use of those Rules.
53. Paragraph 88 of the Restrictions DSO clearly states:

“Healthcare staff must assess the physical, emotional and mental wellbeing of the detainee and whether any apparent clinical reasons advise against the continuation of separation.”⁵⁰

Despite this, Dr Husein Oozeerally, lead GP at Brook House during the relevant period and at the time of the Inquiry’s public hearings, told the Inquiry that his role when doing a daily visit to assess a detained person for continued use of Rule 40 was “not to run an entirely clinical and full assessment especially if [the detained person] had no clinical issues they were raising”.⁵¹ He added that he had never advised that a detained person should be taken off Rule 40 on medical grounds, although he said that if he noticed someone was getting worse, he “might speak with the security team” or the Home Office.⁵² Dr Saeed Chaudhary, also a GP at Brook House, admitted that he did not recall making himself aware of Rule 40 and Rule 42 before he started work there, and he took the lead from Dr Oozeerally in terms of the processes to be followed.⁵³

54. Dr Bingham considered that there was a failure by healthcare staff to identify concerns about unsuitability for detention on E Wing in relation to people with mental illness.⁵⁴Ms Calver disputed this and stated that E Wing would be the best environment for those detained people.⁵⁵ However, she accepted that this would not be the case where E Wing also held violent or refractory detained people or those resisting their removal.⁵⁶ As is set out above, the Inquiry found that this was often the case.
55. Mr Hewer’s evidence was that under Serco’s management of Brook House, Rule 40 is “not particularly” used for detained people with mental health problems.⁵⁷ He said that E Wing or the CSU would be used to hold such people on a case-by-case basis, depending on the circumstances and the vulnerabilities of the individual, although the CSU would rarely be used for this purpose.⁵⁸ He said that there are circumstances where a detained person has not been violent but, because of their vulnerabilities, they are taken to E Wing or the CSU and assessed on a case-by-case basis, because those wings are quieter areas of Brook House.⁵⁹ It is unclear if the practices in relation to segregation of those with mental health problems have materially changed since 2017. To the extent that Rule 40 and Rule 42 are still being used to manage detained people with mental ill health in a manner that is not in accordance with the Restrictions DSO, that remains inappropriate. The Home Office and Serco should seek to assure themselves that the practice is not continuing. In my view, the use of segregation in the management of those vulnerable to a risk of self-harm and suicide, and those with mental health issues – whether informally on E Wing or formally under Rule 40 or Rule 42 – should urgently be reviewed by the Home Office and Serco. The Inquiry also heard evidence of inadequate monitoring of those who had been segregated during the relevant period by healthcare staff, including by GPs who, at the time they gave evidence to the Inquiry, still worked at Brook House and still did not have an adequate understanding of their duties and obligations under the Rules.⁶⁰

Conclusion on the inappropriate use of Rule 40 and Rule 42

56. The Inquiry received evidence that suggested that Rule 40 and Rule 42 were poorly understood, misinterpreted and routinely misapplied. I consider that those working at Brook House – under G4S and Serco – did not have a clear understanding of the circumstances in which these Rules could be used and who could authorise their use. This was widespread, extending even to senior staff. The attitude of some was cavalier.
57. While Rule 40 and Rule 42 serve a legitimate purpose when used correctly, the Inquiry received evidence that they have been used to inappropriately deal with those with mental health conditions. Rule 40 appears to have been used to punish detained people and for the administrative convenience of staff. The Inquiry also received evidence of the harmful impact that the multi-purpose use of E Wing had on detained people. A further concern about the use of Rule 40 is the fact that, at times, detained people were forcibly moved to the CSU or E Wing, and so the use of Rule 40 created a situation where force was used, when it may not otherwise have been required.⁶¹ This further demonstrates why it is so important that Rule 40 and Rule 42 should only be used where appropriate. I am therefore recommending that action be taken to improve the understanding of staff, both from the Home Office and from contractors, about the proper operation of these Rules.

Recommendation 12: Training in relation to Rule 40 and Rule 42 of the Detention Centre Rules 2001 The Home Office and contractors operating immigration removal centres must provide regular training, at least annually, on the operation of Rule 40 and Rule 42 of the Detention Centre Rules 2001, which must include: ●  that Rules 40 and 42 are the only powers under which detained people in immigration removal centres can be removed from association and/or located in temporary confinement; ●  who is permitted to authorise use of those Rules and in what circumstances they may be authorised; ●  that Rules 40 and 42 cannot be used as a punishment or solely for administrative convenience before a planned removal or transfer; and ●  the need to assess any adverse effect that use of Rule 40 or Rule 42 could have on a detained person’s physical or mental health, and to consider any steps that could be taken to mitigate those effects. Attendance must be mandatory for all staff working in immigration removal centres and those responsible for managing them. The training must be subject to an assessment.

1. Detention Services Order 02/2017: Removal from Association (Detention Centre Rule 40) and Temporary Confinement (Detention Centre Rule 42) (CJS000676), Home Office, July 2017 (updated September 2020), para 16[↩]
2. CJS006043_004[↩]
3. Stephen Loughton 1 March 2022 101/8-17; Callum Tulley 30 November 2021 141/5-9[↩]
4. David Webb 3 March 2022 100/21-101/2[↩]
5. Steven Dix 9 March 2016 56/17-20. See also, for example: CJS001753; CJS001643[↩]
6. Annual Report of the Independent Monitoring Board at Brook House: For ReportingYear1 January–31December 2020, IMB, May 2021, p19[↩]
7. Sandra Calver 1 March 2022 166/2[↩]
8. Reverend Nathan Ward 7 December 2021 171/4-6[↩]
9. Owen Syred 7 December 2021 51/9-10[↩]
10. DL0000149_005 para 19[↩]
11. Steven Dix 9 March 2016 85/9-18 [↩]
12. Detention Centre Rules 2001, Rule 42(1); CJS000676_009 para 20. This guidance was expanded in Detention Services Order 02/2017: Removal from Association (Detention Centre Rule 40) and Temporary Confinement (Detention Centre Rule 42) (CJS000676), Home Office, July 2017 (updated September 2020), paras 20-26[↩]
13. CJS000676_009 para 19[↩]
14. SER000455_085 para 322[↩]
15. Nathan Ring 25 February 2022 18/13-19/1. By contrast, in his witness statement, Mr Ring stated that Rule 40 and Rule 42 were not used as a punishment: MIL000002_009 para 24p[↩]
16. Callum Tulley 30 November 2021 143/1-8[↩]
17. Callum Tulley 30 November 2021 143/10-12[↩]
18. CJS001753[↩]
19. Day 2 PM 24 November 2021 00:38:58-00:53:30 (KENCOV1044 – V2017070600007). This incident is discussed in Chapter C.14 in Volume I[↩]
20. CJS001690[↩]
21. An example of what the safety netting looks like can be seen in Report on an UnannouncedInspection of Brook House Immigration Removal Centre 30 May–16 June 2022 (HMIP000702), HM Chief Inspector of Prisons, September 2022, p1[↩]
22. HOM000319_003[↩]
23. SER000455_087 para 331[↩]
24. DL0000141_099 para 282[↩]
25. CJS006043_005[↩]
26. CJS004722[↩]
27. MIL000003_021[↩]
28. DL0000229_040-044 paras 142-160[↩]
29. CJS001768_002[↩][↩]
30. CJS006043_0004[↩]
31. DL0000233_005 para 24[↩]
32. Annual Report of the Independent Monitoring Board at Brook House: ForReportingYear1January–31December 2020, IMB, May 2021, p19[↩]
33. Steven Hewer 1 April 2022 95/8-96/5[↩]
34. Annual Report of the Independent Monitoring Board at Gatwick IRC: For Reporting Year1 January–31 December 2021, IMB, June 2022, p31[↩]
35. Annual Report of the Independent Monitoring Board at Gatwick IRC: For Reporting Year 1 January–31 December 2021, IMB, June 2022, p8[↩]
36. CJS000676_009 para 22[↩]
37. CJS000676_009 para 22[↩]
38. CJS000676_009 para 22 [↩]
39. CJS000676_009 para 22 [↩]
40. CJS000676_010 para 25[↩]
41. Owen Syred 7 December 2021 59/19-24[↩]
42. BHM000033_065 para 165; CJS001665[↩]
43. Ryan Bromley 7 March 2022 109/16[↩]
44. Dr Rachel Bingham 14 March 2022 54/5-8[↩]
45. BHM000033_063 para 158[↩]
46. Dr Hindpal Singh Bhui 24 March 2022 181/5-12[↩]
47. IMB000121_016 para 5.7.5[↩]
48. VER000138_014 para 6.5[↩]
49. Philip Riley 4 April 2022 78/23-24[↩]
50. CJS000676_025 para 88[↩]
51. Dr Husein Oozeerally 11 March 2022 165/8-10[↩]
52. Dr Husein Oozeerally 11 March 2022 167/13-168/5[↩]
53. Dr Saeed Chaudhary 11 March 2022 182/22-183/16[↩]
54. BHM000033_063 para 158 [↩]
55. Sandra Calver 1 March 2022 170/6-14 [↩]
56. Sandra Calver 1 March 2022 170/17-21 [↩]
57. Steven Hewer 1 April 2022 97/23[↩]
58. Steven Hewer 1 April 2022 97/25-98/3[↩]
59. Steven Hewer 1 April 2022 98/10-20[↩]
60. KENCOV1034 – V2017061100005; Dr Husein Oozeerally 11 March 165/8-165/10, 167/3-168/5; Dr Saeed Chaudhary 11 March 182/22-183/16; BHM000033_063 para 158[↩]
61. See, for example, CJS005614; CJS005623; CJS005530; CJS005589; CJS005650; CJS005575[↩]