Reporting and oversight

58. The use of Rule 40 and Rule 42 must be “recorded” and also notified to the Secretary of State, as well as “without delay” to “a member of the visiting committee [the IMB], the medical practitioner and the manager of religious affairs”.¹ ) The Restrictions DSO clarifies that notification to those listed in the Rules must take place “no later than 2 hours after a detainee is located under Rule 40 or 42 accommodation”.² It also states that “centre suppliers must notify” the Home Office Detainee Escorting and Population Management Unit (DEPMU) of any instance of a detained person being managed under Rule 40 or Rule 42.³ The detained person should also be provided with reasons for that decision in writing within two hours of being relocated under either Rule.⁴

Contractor monitoring

59. The contractor of Brook House, formerly G4S and now Serco, has a responsibility under the Restrictions DSO to report on the use of Rule 40 and Rule 42. The Restrictions DSO states that each IRC must “have in place arrangements for monitoring the use of Rules 40 and 42 accommodation”.⁵ Contractors must submit daily reports on the use of Rule 40 and Rule 42 accommodation, which must be summarised and escalated by the Home Office service delivery manager of each IRC to the Home Office’s Head of Detention Operations every week. Contractors are also required to compile monthly summary data on the number of individuals managed in Rule 40 and Rule 42 accommodation, the number of occasions on which Rule 40 and Rule 42 were used and the length of time spent in Rule 40 and Rule 42 accommodation.⁶ Since the latest edition of the Restrictions DSO was published in September 2020, an annual self-audit of the Restrictions DSO must now also be undertaken by contractors to ensure that the Restrictions DSO processes are being followed.⁷
60. Mr Brockington’s evidence was that G4S was satisfied that:

“it had systems in place during April to August 2017 for monitoring Rule 40 and 42 and that they were used appropriately by staff. Senior and Duty Managers engaged with Home Office staff as these were the only grades able to authorise Rule 40 and 42, and this was subject to daily scrutiny and appropriate challenge from IMB members.”⁸

Notwithstanding Mr Brockington’s evidence, I consider that G4S’s monitoring of the use of Rule 40 and Rule 42 was plainly inadequate because G4S failed to identify and act upon any of the significant issues identified by the Inquiry in relation to the use of Rule 40 and Rule 42, set out above. In addition, the fact that the Inquiry has identified a number of areas where issues in the operation of Rule 40 and Rule 42 may be persisting under Serco suggests that there is likely to be room for improvement in Serco’s internal monitoring of Rule 40 and Rule 42.

Home Office

61. Mr Philip Schoenenberger, Head of the DEPMU during the relevant period, confirmed that the DEPMU was told when Rule 40 or Rule 42 were used, with individual entries recorded on its computer system. However, he added that the DEPMU would “absolutely not” have been able to spot any trends in the way that Rule 40 was being used.⁹ He explained that there were no means of collating Rule 40 statistics or analysing trends on its system.¹⁰ It is unclear what purpose the notification of use of the Rules to the Home Office served, because it did not have a system to undertake any generalised monitoring. This was a systemic failure in the Home Office’s oversight function.
62. Mr Riley explained that, in October 2017, the DES Head of Operations reminded centre managers at each IRC of the requirement to compile monthly data on Rule 40 and Rule 42. A review of Rule 40 and Rule 42 in February 2018 by the DES Audit and Assurance Team found that the processes set out in the Restrictions DSO were not always being followed across the immigration detention estate. As a result, in April 2018, the DES Head of Operations wrote to centre managers and Home Office service delivery managers to remind them of their responsibilities.¹¹
63. In addition, Mr Riley told the Inquiry that he had seen correspondence from as recently as July 2019 in which colleagues from DES and Home Office Commercial decided to penalise G4S for basic, fundamental failings in the operation of Rule 40 and Rule 42, including the inaccurate completion of records.¹² This demonstrates that known failings in the operation of Rule 40 and Rule 42 had not been adequately addressed by G4S, or indeed by the Home Office, as late as July 2019.
64. Although the Home Office identified failings in compliance with Rule 40 and Rule 42 and related guidance, very little substantive action was taken and the Home Office undertook no generalised monitoring. Oversight and monitoring by the Home Office should have been an important means of protecting the rights of detained people, but it was not undertaken with the required rigour by individual members of staff or, more significantly, at an institutional level within the Home Office. This was a significant failing on the part of the Home Office.
65. Under the Serco contract, there is a key performance indicator regarding compliance with DSOs and the Rules, which would allow the Home Office to impose a financial penalty in the event of a breach of such requirements.¹³

Independent Monitoring Board

66. Whenever a detained person is held subject to Rule 40 or Rule 42, the Rules currently require that the IMB should be given notice and visit them within 24 hours.¹⁴ The requirement is important because visits provide an opportunity to detect issues with the treatment of detained people and the administration of Rule 40 and Rule 42. The IMB also has a right to report directly to the Secretary of State if it finds conditions within the IRC or the treatment of detained people to be unsatisfactory.¹⁵
67. Ms Jacqueline Colbran, Chair of the Brook House IMB during the relevant period, said that there were “very, very few instances” during the relevant period where it was not informed of a use of Rule 40, and that those “would have been raised with management”.¹⁶ However, she admitted that the Brook House IMB did not check any individual uses of Rule 40, for example, to satisfy itself that it had been appropriate to use the Rule. She said:

“We wouldn’t … look into the decision, no. We would ideally see the person and there was an opportunity there for them to tell us things, but, no, we didn’t check that out.”¹⁷

Ms Colbran could recall only one instance where a colleague from the Brook House IMB challenged an individual decision to invoke Rule 40, as well as an occasion in February 2017 where she questioned the increased use of Rule 40 at a meeting of the Brook House IMB.¹⁸

68. Despite the lack of scrutiny of individual uses of Rule 40, in its report for the reporting year 2017, the Brook House IMB concluded:

“The increase in the use of Rule 40 is potentially worrying, but we have no evidence that this rule has been used indiscriminately or inappropriately. From the reasons recorded for the use of Rule 40, reporting suggests that its use has been reserved for occasions on which detainees have behaved in a clearly unacceptable way. Other aspects of our monitoring, such as conversations with detainees and officers involved, support this finding.”¹⁹

Ms Colbran conceded that the conclusion that Rule 40 had been reserved for detained people behaving in a clearly unacceptable way was not entirely accurate, because the Rule was very occasionally also used for detained people who were at risk. It is unclear whether Ms Colbran condoned the use of Rule 40 on detained people who were at risk.²⁰ In any event, it is difficult to see how the Brook House IMB could consider that its monitoring supported a conclusion that Rule 40 was reserved for occasions when detained people were behaving in a clearly unacceptable way, in light of Ms Colbran’s admission that the Brook House IMB did not look into individual decisions to use Rule 40.²¹

69. Ms Mary Molyneux (subsequent Chair of the Brook House IMB and current member of the Gatwick IRCs IMB) stated that now, when it receives a call to say that Rule 40 has been exercised, it will ask for more information. However, she said that this was not at “the level of analysis, but there is certainly more information gathering or trying to understand what’s happened”.²²
70. Visits to detained people who were the subject of these Rules were not always carried out within 24 hours, as Ms Molyneux explained:

“given the number of instances of Rule 40 being used, the number of IMB volunteers, and the fact that these notifications came several times a week at all hours of the day and night, it was not possible to visit every man placed on Rule 40 within 24 hours”.²³

She emphasised that, even today, it was not possible to visit all the detained people managed under Rule 40 and Rule 42, although she was aware that it was a legal requirement to do so.²⁴

71. The Home Office and G4S were both aware that the Brook House IMB was not always able to visit every detained person placed subject to Rule 40 and Rule 42 within 24 hours, and the Home Office has declared its intention to update the Rules in this regard.²⁵ However, no new rules have been laid before Parliament by the Government and it is entirely unclear why important legislation governing the IMB’s safeguarding role has not been updated for so long. This issue is analysed further in Chapter D.11 of this Report.

HM Inspectorate of Prisons

72. HMIP is an independent arm’s-length body sponsored by the Ministry of Justice.²⁶ It aids HM Chief Inspector in meeting the responsibility to report on the treatment of detained people and conditions of detention, including in IRCs.²⁷ HMIP’s role is to ensure independent inspection of places of detention, report on conditions and treatment, and promote positive outcomes for those detained and the public.147 Dr Singh Bhui told the Inquiry.²⁸
73. Dr Singh Bhui told the Inquiry that when HMIP conducted inspections, it considered “a sample of cases to work out whether or not separation has been justified”.²⁹ He said he was sure that HMIP would have considered whether, in those cases, the detained person was put on Rule 40 with the correct authority. He assumed that, because the issue of authorisation of uses of Rule 40 was not raised in the October–November 2016 HMIP inspection report, it was not a concern for the inspector.³⁰ Despite the significant body of evidence demonstrating that authorisation of the use of Rule 40 and Rule 42 was a serious issue at Brook House during the relevant period (which was only five months after HMIP’s 2016 inspection), no such issue was identified by HMIP.
74. The HMIP 2016 inspection report commented:

“The regime for separated detainees remained poor: they did not have televisions, radios, books or other means of distraction. The unit was austere with dirty toilets and cells which required painting.”³¹

The May–June 2019 HMIP inspection report noted that conditions “were reasonable. It was clean and reasonably bright and rooms were appropriately furnished.”³² However, it also recorded that:

“Cells had no televisions and, although we were told that detainees were given a radio on request, we saw no record of this or of detainees being given books or other means of distraction. Detainees were assessed for access to the regime; however, there was little evidence in records that separated detainees had received a significant regime.”³³

75. In HMIP’s latest report, following its inspection of Brook House in May– June 2022, it was noted that:

“It was a concern that the [CSU] had held a number of detainees with poor mental health, including at least one who was considered unfit for detention.”³⁴

“Most paperwork we reviewed showed reasonable grounds for separation and reviews were thorough. However, we looked at two cases where the justification for separation was weak – both cases involved segregating the victims of an assault.”³⁵

“There was little oversight of segregation, with no regular meetings or analysis of data to look into its use.”³⁶

It therefore appears that many of the concerns noted by the Inquiry still persist under Serco’s operation of Brook House.

76. While the HMIP 2022 inspection report demonstrates that greater consideration is being given by HMIP to the inspection of the use of Rule 40 and Rule 42, this remains an area where greater scrutiny by HMIP would be beneficial. In particular, the HMIP 2022 inspection report did not identify the apparent ongoing misunderstandings among Serco staff in relation to the authorisation of use of Rule 40 and Rule 42 about which the Inquiry heard evidence.³⁷

Improving oversight

77. In addition to ongoing monitoring by the contractor of an IRC in a contracted-out centre, with oversight by the Home Office, the IMB and HMIP are important safeguards to ensure the proper operation of Rule 40 and Rule 42 and to protect those subject to them. I consider that there is room for improvement in the operation of these critical oversight functions, and I am therefore recommending that steps be taken to facilitate that improvement.

Recommendation 13: Audit of use of Rule 40 and Rule 42 of the Detention Centre Rules 2001 The Home Office must regularly (and at least quarterly) audit the use of Rule 40 and Rule 42 across the immigration detention estate, in order to identify trends, any training needs and required improvements. In addition, HM Inspectorate of Prisons and the National Chair and Management Board of Independent Monitoring Boards must review processes to consider how they fulfil their oversight role in respect of Rule 40 and Rule 42, and report on the monitoring of the use of Rules 40 and 42 going forward.

1. Detention Centre Rules 2001, Rules 40(3), 40(8), 42(6) and 42(7[↩]
2. CJS000676_017 para 55[↩]
3. CJS000676_018 para 57. The DEPMU is responsible for determining whether those involved in deportation cases should be detained in prison or in IRCs[↩]
4. CJS000676_016 para 52; Detention Centre Rules 2001, Rule 40(6) [↩]
5. CJS000676_026 para 98; 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 108[↩]
6. CJS000676_026-027 para 98; CJS000676_027 para 99; 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 108 and 109[↩]
7. 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 113[↩]
8. CJS0074041_040 para 199[↩]
9. Philip Schoenenberger 23 March 2022 95/22-97/1[↩]
10. Philip Schoenenberger 23 March 2022 97/3-10[↩]
11. HOM0332005_015 para 44[↩]
12. HOM0332005_015 para 45[↩]
13. SER000226_218[↩]
14. Detention Centre Rules 2001, Rule 62; IMB000183_014; IMB000203_026 para 82[↩]
15. IMB000183_006-007[↩]
16. Jacqueline Colbran 25 March 2022 63/1-11[↩]
17. Jacqueline Colbran 25 March 2022 64/14-21[↩]
18. Jacqueline Colbran 25 March 2022 66/9-127; IMB000026_003; IMB000204_035 para 105; IMB000062_002[↩]
19. IMB000135_0013 para 6.3[↩]
20. Jacqueline Colbran 25 March 2022 70/13-23[↩]
21. Jacqueline Colbran 25 March 2022 63/20-24[↩]
22. Mary Molyneux 25 March 2022 137/8-138/20[↩]
23. IMB000203_026 para 82[↩]
24. Mary Molyneux 25 March 2022 136/7-18[↩]
25. IMB000199_006-007 para 17; IMB000199_015 para 44[↩]
26. HMIP000683_003 para 6[↩]
27. HMIP000683_002 para 5[↩]
28. HMIP000683_003 para 7[↩]
29. Dr Hindpal Singh Bhui 24 March 2022 179/13-19[↩]
30. Dr Hindpal Singh Bhui 24 March 2022 180/10-17; HMIP000613[↩]
31. Report on an Unannounced Inspection of Brook House Immigration Removal Centre 31October–11 November 2016, HM Chief Inspector of Prisons, March 2017, para S10[↩]
32. Report on an Unannounced Inspection of Brook House Immigration Removal Centre 20 May–7 June2019, HM Chief Inspector of Prisons, September 2019, para 1.65[↩]
33. Report on anUnannouncedInspection of Brook House Immigration Removal Centre 20May–7June2019, HM Chief Inspector of Prisons, September 2019, para 1.68[↩]
34. Report on an Unannounced Inspection of Brook House Immigration Removal Centre 30 May–16 June2022 (HMIP000702), HM Chief Inspector of Prisons, September 2022, para 2.45[↩]
35. Report on an Unannounced Inspection of Brook House Immigration Removal Centre 30 May–16 June2022 (HMIP000702), HM Chief Inspector of Prisons, September 2022, para 2.46[↩]
36. Report on an Unannounced Inspection of Brook House Immigration Removal Centre 30 May–16 June2022 (HMIP000702), HM Chief Inspector of Prisons, September 2022, para 2.49[↩]
37. Report on an Unannounced Inspection of Brook House Immigration Removal Centre 30 May–16 June2022 (HMIP000702), HM Chief Inspector of Prisons, September 2022[↩]