Last week, the Home Office lost a case over its controversial definition of “torture,” which the High Court ruled was unlawful.
The case, brought by the charity Medical Justice and seven survivors of torture, claimed some individuals who applied for asylum in the UK had been wrongfully placed in immigration detention – all because of a definition.
What’s in a Word?
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Under official guidelines, people who have survived torture must not be placed in immigration detention while their asylum claims are processed. This is because detention will worsen the physical and psychological trauma they are already experiencing.
The rules require that they are housed in private accommodation during this time – whether provided by the government, or by any family members who are already living in the UK.
In September 2016, the Home Office controversially adopted a new definition of torture. While it had previously recognised torture as including inhuman and degrading acts carried out by any individual or group, its new definition was limited to acts committed by “state actors” – in other words, people acting on behalf of a government.
What Was the Effect of this New Definition?
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This change meant that people who were abused and degraded by non-state actors – such as traffickers, gangs or terrorist groups – were no longer recognised as having survived torture, and could be placed in immigration detention.
Anyone falling outside this new definition had to provide specific evidence that detention was likely to cause them harm – a requirement which described as an “additional hurdle” in the High Court judgment. All of this ignored the fact that torture has the same impact on a person, whether it is carried out by a state agent or not.
It affected me greatly to be subjected to this unlawful policy. It has left a scar in my life that will never be healed.
The seven detainees who brought the claim included survivors of sexual and physical abuse, trafficking, sexual exploitation and homophobic attacks. One claimant was a 21-year-old from Afghanistan who was kidnapped and recruited by the Taliban at the age of five, beaten with rifle butts, stabbed and thrown from a mountain. Another was a 20-year-old from Vietnam who was beaten and burned with cigarettes before being trafficked to the UK.
How Are Human Rights Involved?
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Under Article 3 of the Human Rights Act (HRA), we all have a right not to be subjected to torture and inhuman and degrading treatment or punishment. This is an absolute right – there are no circumstances in which a breach of it can be lawful.
Article 3 also means that the government cannot deport individuals to a country where there is a substantial risk they’ll face torture.
Under the UN Convention Against Torture (“UNCAT”), the UK also has a positive obligation to help survivors of torture to rehabilitate. Being placed in detention directly prevents rehabilitation. As one expert explains:
The prison-like environment of detention takes torture survivors back to a place where they previously faced existential threat, terror and absolute powerlessness.
Article 5 of the HRA also protects our right to liberty. It states that no one can be deprived of their liberty except “in accordance with a procedure prescribed by law.”
What Did Mr Justice Ouseley Decide?
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The High Court judge decided that the new definition lacked a “rational or evidence base,” and was unlawful. He stated that adopting this new definition would “require medical practitioners to reach conclusions on political issues which they cannot rationally be asked to reach.”
The Home Office admitted it had unlawfully detained the seven claimants, and that it had applied the policy wrongly in 57% of 340 cases in its initial 10 weeks of implementation. It has said that it is not planning to appeal Mr Justice Ouseley’s decision.
What Does this Mean for the Survivors?
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Mr. PO, one of the seven claimants, suffered deterioration in his mental health while he was unlawfully detained. After the High Court decision, he said:
Although I welcome the decision, it is still upsetting that the Home Office, who should protect people like me, rejected me and put me in detention which reminded me of the ordeal I suffered in my country of origin.
While welcoming the High Court decision, organisations like Medical Justice also pointed out that more changes are urgently needed to protect the rights of immigration detainees.
People in immigration detention still need better access to independent health assessments and legal advice. Frontline staff in detention centres need training on identifying signs of such trauma. And the UK is still the only country in Europe that has no legal time limit on how long someone can be placed in immigration detention.
According to Medical Justice, the Home Office may now face dozens of claims from other survivors of torture who have also been unlawfully detained.