Restrictions on detained people

34. The Detention Centre Rules 2001 contain powers that restrict the rights of detained people, segregating them to some degree from others. Rule 40 allows the removal of a detained person from association where “it appears necessary in the interests of security or safety”, initially for up to 24 hours but up to a maximum of 14 days.¹ This power was used on 241 occasions at Brook House during the relevant period (1 April 2017 to 31 August 2017). Rule 42 contains a power to confine a “refractory [ie difficult to control or unwilling to obey authority] or violent detained person” in “special accommodation”, but it cannot be used as a punishment or after a detained person has ceased to be refractory or violent. Confinement under Rule 42 cannot exceed 24 hours without a written direction from an officer of the Secretary of State. Even then, it can only be extended to a maximum of three days. These powers must be balanced with “the need to have due regard to the dignity and welfare of the individual” and “must be used only as a last resort, when all other options have been exhausted or are assessed as likely to fail or to be insufficient”.² This reflects that the use and misuse of these powers can have very harmful consequences.
35. Authorisation of these powers may only be granted by the Secretary of State (or an appropriate Home Office official to whom powers have been delegated), other than in cases of urgency when “the manager of a contracted- out removal centre may assume the responsibility of the Secretary of State”.³ During the relevant period, the manager of Brook House for these purposes was Mr Ben Saunders, as Centre Director for Brook House and Tinsley House immigration removal centre, and the Inquiry saw no evidence of him authorising the use of Rule 40 during the relevant period. Only four instances were authorised by Mr Paul Gasson (the Home Office Contract Monitor at Brook House at the time). Instead, uses of Rule 40 and Rule 42 were routinely authorised at Brook House by Duty Managers other than Mr Saunders, and by Detention Custody Managers who were not acting as Duty Managers. Evidence received gave the impression of widespread confusion and apparent misunderstanding at an organisational level about who could authorise use of these Rules, even among senior managers at both the Home Office and G4S.A number of related documents – including an interim instruction issued by the Home Office in October 2016, the Detention Services Operating Standards Manual for Immigration Service Removal Centres (the Operating Standards Manual, January 2005), and Detention Services Order 02/2017: Removal from Association (Detention Centre Rule 40) and Temporary Confinement (Detention Centre Rule 42) (the Restrictions DSO, dated July 2017), as well as the G4S contract – may have contributed to this confusion. The Inquiry also heard evidence that Rule 40 might have been used in Brook House without Home Office authorisation, even where there would have been sufficient time to seek it.
36. This appears to have been perpetuated by inadequate training. While the Inquiry did not examine any recent individual uses of Rule 40 or Rule 42, it is concerning that misunderstandings about who can authorise use of these Rules appear to persist under Serco, exacerbated by the terms of the Restrictions DSO in particular. It is extremely important that both the Home Office and Serco take steps to ensure that Rule 40 and Rule 42 are used only where permitted by law, which includes proper authorisation. I am therefore recommending that the Home Office clarify the authorisation process as a matter of urgency.

37. The Inquiry also received detailed evidence about the inappropriate use of these Rules.
38. Although those subject to Rule 40 or Rule 42 must be accommodated in a room designed and certified for that purpose, the Inquiry heard conflicting evidence about whether this was the case during the relevant period. Housing detained people temporarily removed from association or confined as a result of their behaviour 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. It appears that this practice continues under Serco’s management of Brook House. I am therefore recommending a review of the multi-purpose use of E Wing.

39. Rule 40 was improperly used as a punishment by some members of staff at Brook House, even in response to minor behavioural issues (such as stealing coffee), notwithstanding the fact that this was not permissible. 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. 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.
40. Where a detained person has been identified as being at risk of suicide or self-harm, Rules 40 and 42 should only be used in “exceptional circumstances”, for the “shortest time possible” and “as a last resort”.⁴ Despite this clear mandatory guidance, there was evidence that Rules 40 and 42 were used inappropriately by some members of staff to manage detained people with mental ill health during the relevant period. Segregation is not a mental health treatment. Rather, as Dr Rachel Bingham, clinical advisor to Medical Justice (a charity that provides medico-legal reports and advice to detained people), told the Inquiry: “it’s actually something that would harm … mental health”.⁵ It is particularly concerning that this approach was pervasive during the relevant period. To the extent that Rules 40 and 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.
41. These issues further demonstrate 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.

42. There should be ongoing monitoring of the use of Rule 40 and Rule 42 by the contractor of an immigration removal centre in a contracted-out centre, with oversight by the Home Office. G4S failed to identify and act upon any of the significant issues identified by the Inquiry in relation to the use of Rules 40 and 42. Although the Home Office identified failings in compliance, very little substantive action was taken and the Home Office undertook no generalised monitoring.
43. Whenever a detained person is subject to Rule 40 or Rule 42, the Independent Monitoring Board (IMB) should be given notice and visit them within 24 hours, although the Inquiry was told that it was not possible to undertake all such visits. However, 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 it in the specific circumstances. When HM Inspectorate of Prisons (HMIP) conducted inspections, it considered “a sample of cases to work out whether or not separation has been justified”.⁶ 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. It appears that many of the concerns noted by the Inquiry still persist under Serco’s operation of Brook House. This remains an area where greater scrutiny would be beneficial, and I consider that there is room for improvement in the operation of these critical oversight functions.

1. Detention Centre Rules 2001, Rule 40(3) and 40(4[↩]
2. CJS000676 paras 2 and 19[↩]
3. Detention Centre Rules 2001, Rules 40(2) and 42(2[↩]
4. CJS000676_010 para 25[↩]
5. Dr Rachel Bingham 14 March 2022 54/5-8[↩]
6. Dr Hindpal Singh Bhui 24 March 2022 179/13-19[↩]