“Medical Attendance 20-(1) The governor must work in partnership with local health care providers to secure the provision to prisoners to access to the same quality and range of services as the general public receives from the National Health Service. (2) Every request by a prisoner to see the medical officer shall be recorded by the officer to whom it is made and promptly passed on to the medical officer. (3) The medical officer may consult a medical practitioner who is a fully registered person within the meaning of theMedical Act 1983 . Such a practitioner may work within the prison under the general supervision of the medical officer. … Special Illnesses and Conditions 21-(1) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any condition of imprisonment. The governor shall send the report to the Secretary of State without delay, together with his own recommendations. (2) The medical officer or a medical practitioner such as is mentioned in rule 20(3) shall pay special attention to any prisoner whose mental condition appears to require it, and make any special arrangements which appear necessary for his supervision or care…”
“Medical practitioner and health care team 33-(1) Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of theMedical Act 1983 . (2) Every detention centre shall have a health care team (of which the medical practitioner will be a member), which shall be responsible for the care of the physical and mental health of the detained persons at that centre. (3) Each member of the health care team shall (as far as they are qualified to do so) pay special attention to the need to recognise medical conditions which might be found among a diverse population and the cultural sensitivity appropriate when performing his duties. … (5) Every request by a detained person to see the medical practitioner shall be recorded by the officer to whom it is made and forthwith passed to the medical practitioner or nursing staff at the detention centre. Medical examination upon admission and thereafter 34-(1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with Rules 33(7) or (10)) within 24 hours of his admission to the detention centre. (2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detailed person does not consent to it. (3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request. Special illnesses and conditions(including torture claims) 35-(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention. (2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State. (3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture. (4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay. (5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”
“The Secretary of State must issue guidance specifying matters to be taken into account by a person to whom the guidance is addressed in determining (a) whether a person (‘P’) would be particularly vulnerable to harm if P were to be detained or to remain in detention, and (b) if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention.”
“Purpose and background 1. This guidance specifies the matters to be taken into account in accordance withSection 59 of the Immigration Act 2016 when determining whether a person would be particularly vulnerable to harm if they were detained, or if they remained in detention, and, if they were particularly vulnerable in those circumstances, whether they should be detained or remain in detention. This approach emerges from the Government’s response (in a Written Ministerial Statement of14 January 2016 ) to the report by Stephen Shaw of his review of the welfare of vulnerable people in detention. The intention is that the guidance will, in conjunction with other reforms referred to in the Government’s response, lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal… 2. This guidance allows for a case by case evidence-based assessment of the appropriateness of the detention of an individual considered to be at particular risk of harm in the terms of this guidance. 3. The clear presumption is that detention will not be appropriate if a person is considered to be ‘at risk’. However, it will not mean that no-one at risk will ever be detained. Instead, detention will only become appropriate at the point at which immigration control considerations outweigh this presumption. Within this context it will remain appropriate to detain individuals at risk if it is necessary in order to remove them. … … 5. The processes set out in this guidance apply to all cases in which consideration is being given to detaining a potentially vulnerable individual in order to remove them. They also apply to cases of individuals who are already in detention, though there are some differences in the way in which these cases are managed. Principles 6. The main principles underpinning this guidance [include]: • the intention is that fewer people with a confirmed vulnerability will be detained in fewer instances and that, where detention becomes necessary, it will be for the shortest period necessary. • for the purposes of a removal, individuals can be detained if there is a realistic prospect of removal within a reasonable timescale and if there is evidence which suggests that the individual would not be likely to be removed without the use of detention. • detention will not be appropriate if an individual is considered to be at risk in the terms of this guidance unless and until there are overriding immigration considerations. • consideration will need to be given to the weight of evidence in support of the contention that the individual is at risk, and the level of risk that is supported by the evidence. • assessment of risk is based on the evidence available, ranging from a self declaration of risk to authoritative professional opinion. The level of evidence available dictates the level of evidence-based risk into which any given individual will fall. • in each case, the evidence of risk to the individual will be considered against any immigration factors to establish whether these factors outweigh the risk. • the greater the weight of evidence in support of the contention that the individual is at risk, the weightier the immigration factors need to be in order to justify detention. Who is an adult at risk? 7. For the purposes of this guidance, an individual will be regarded as being an adult at risk if: • they declare that they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention. • those considering or reviewing detention are aware of medical or other professional evidence, or observational evidence, which indicates that an individual is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence) that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention – whether or not the individual has highlighted this themselves. Assessment of whether an individual identified as being at risk should be detained 9. Once an individual has been identified as being at risk, consideration should be given to the level of evidence available in support and the weight that should be afforded to the evidence in order to assess the likely risk of harm to the individual if detained for the period identified as necessary to effect their removal: • a self declaration of being an adult at risk – should be afforded limited weight, even if the issues raised cannot be readily confirmed. Individuals in these circumstances will be regarded as being at evidence level 1. • professional evidence (e.g. from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is an adult at risk – should be afforded greater weight. Individuals in these circumstances will be regarded as being at evidence level 2. • professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm – for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk – should be afforded significant weight. Individuals in these circumstances will be regarded as being at evidence level 3. Indicators of risk 11. The following is a list of conditions or experiences which will indicate that a person may be particularly vulnerable to harm in detention. • suffering from a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition). • having been a victim of torture (individuals with a complete Medico Legal Report from reputable providers will be regarded as meeting level 3 evidence, provided the report meets the required standards). … • suffering from post-traumatic stress disorder (which may or may not be related to one of the above experiences). … • suffering from other serious physical health conditions or illnesses. Assessment of immigration factors 13. The presumption will be that, once an individual is regarded as being at risk in the terms of this guidance, they should not be detained. However any risk factors identified and evidence in support, will then need to be balanced against any immigration control factors in deciding whether they should be detained. 14. The immigration factors that will be taken into account are: • Length of time in detention – there must be a realistic prospect of removal within a reasonable period. What is a ‘reasonable period’ will vary according to the type of case but, in all cases, every effort should be made to ensure that the length of time for which an individual is detained is as short as possible. In any given case it should be possible to estimate the likely duration of detention required to effect removal. This will assist in determining the risk of harm to the individual. … • Public protection issues – consideration will be given to whether the individual raises public protection concerns by virtue of, for example, criminal history, security risk, decision to deport for the public good. • Compliance issues – an assessment will be made of the individual’s risk of abscond, based on the previous compliance record. 15. An individual should be detained only if the immigration factors outweigh the risk factors such as to displace the presumption that individuals at risk should not be detained. This will be a highly case-specific consideration.”
“There is an existing presumption in immigration policy that a person will not be detained. The adults at risk in immigration detention policy strengthens this presumption against the detention of those who are particularly vulnerable to harm in detention.”
“Evidence that an individual is a victim of torture may emerge from a rule 35 [report]… Individuals with such a report which indicates that the individual has been a victim of torture will be regarded as meeting level 3 evidence under the policy, providing the report meets the required standard.”
“On receipt of a Rule 35 report, the Home Office decision maker must review detention. We have regularly criticised failings in Rule 35 reports and Home Office responses: reports often fail to offer meaningful commentary and replies are dismissive. Despite these criticisms, Rule 35 reports have led to the release of some vulnerable detainees from IRCs. For example, at Harmondsworth IRC in 2013, 5% of the 234 Rule 35 reports submitted in the year to our inspection led to release. No equivalent safeguard is available in prisons. There is no obligation on prison medical practitioners to communicate information regarding a detainee’s health, risk of suicide or history of torture to the Home Office decision maker. This could mean that a torture survivor, or detainee who has suicidal intentions, or whose health is being injured by detention, is unnecessarily detained.”
“2.43 Recommendation 22 was that the Detention Centre Rule 35 (or its replacement) should apply to those detainees held in prisons as well as those in IRCs. This was rejected on the grounds that a broadly equivalent provision (Rule 21) exists in the Prison Rules. (This provides that medical officers must report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment). It was also pointed out that prisons have their own well-established healthcare provision, and mechanisms for reporting any concerns, and that the Adults at Risk policy applies to individuals held in prisons under immigration powers as well as those in the immigration estate. 2.44 Following my discussions with senior prison officials, I am much less confident that Rule 21 is an adequate substitute. There are fewer full-time healthcare staff to make assessments, and less regular contact with detainees given the larger prison population numbers. 2.45 Indeed, I was unable to find any information on how often Rule 21 is used in prisons, and suspect that it is rare in the extreme. 2.46 Prisoners held under immigration powers may well be subject to wider vulnerability issues, and I do not believe the current system is likely to pick this up. This is a worrying gap and needs to be remedied.”
“While the issues explicitly raised by Rule 35 could be encountered by clinical staff working in relation to Rule 21, it seems much more likely that they would be seen to be only clinically significant and the explicit, non-clinical concept of ‘suitability for detention’ would not be considered, even if some individuals might require care outside the prison environment.”
“The Defendants failed to (timeously) discover AO and MR’s experiences of torture and mental ill health. That is because there is no equivalent protection to that of Rules 34 and 35 of the 2001 Rules, contained within the 1999 Rules. As a result, their vulnerability was not brought to the attention of the Defendants. That meant that their suitability for detention was not (adequately) reviewed by either Defendant. In those premises, the Claimants were unlawfully detained. …”
“2.39 All incoming prisoners must be medically examined, in private if possible, by a qualified member of the Healthcare Team, or a competent and trained Health Care Assistant, who has been trained in ACCT [Assessment, Care in Custody and Teamwork] procedures, to determine whether they have any short or long term physical or mental health needs, including disability, drugs or alcohol issues, and ensure that any follow up action is taken.”
“Because of the very nature of prisons and their need for enhanced security, prisons are not able to replicate the regime of an Immigration Removal Centre. Immigration Removal Centres are intended to hold a detainee for a short period of time while arrangements are made for their removal, while prisons hold those subject to a sentence of imprisonment often for long periods of time.”
“35. In January 2016, Stephen Shaw CBE, published a report entitled ‘Review into the welfare in detention of vulnerable persons’. This report looked at those detained under immigration powers and made a number of recommendations for change. Mr Shaw was subsequently asked by the Government to conduct a review of his earlier report and this was published in June 2018 under the title ‘Assessment of government progress on implementing the report on the welfare in detention of vulnerable persons’. This report made a number of further recommendations including two recommendations relating to the detention of immigration detainees in prisons. Recommendation 3 recommended that HM Prison and Probation Service and the Home Office put in place a joint policy for the management of immigration detainees in prisons. Recommendation 4 recommended that a policy be developed to equate to Detention Centre Rule 35. These recommendations coincided with a planned review and refresh of PSI 52/2011. 36. In response to recommendations 3 and 4 of the Shaw Report the prison service is currently developing a policy for the management of detainees in prisons, this will bring together existing policy strands, but is separate to the review and refresh of PSI 52/2001. It is intended that this new policy will set out the rights and obligations of detainees and will look to define in a clear way the process governing the transition of an individual from a serving prisoner to an immigration detainee. It is expected that this policy will be agreed and put in place by the summer. 37. HM Prison and Probation Service is currently working with the Home Office and NHS England in their preparation of a response to recommendation 4. The anticipated role of the prison service in this would be to provide FNOs/immigration detainees with access to prison medical staff in the prison estate to enable a process similar to that which currently exists in Immigration Removal Centres under rule 35. Work is still being done to identify whether and how such a process could be implemented within the structure and resources of the prison system and the prison healthcare system. …”
“27. … (i) in considering whether a system is fair, one must look at the full run of cases that go through the system; (ii) a successful challenge to a system on grounds of unfairness must show more than the possibility of aberrant decisions and unfairness in individual cases; (iii) a system will only be unlawful on grounds of unfairness if the unfairness is inherent in the system itself; (iv) the threshold of showing unfairness is a high one; (v) the core question is whether the system has the capacity to react appropriately to ensure fairness (in particular where the challenge is directed to the tightness of time limits, whether there is sufficient flexibility in the system to avoid unfairness); and (vi) whether the irreducible minimum of fairness is respected by the system and therefore lawful is ultimately a matter for the courts. I would enter a note of caution in relation to (iv). I accept that in most contexts the threshold of showing inherent unfairness is a high one. But this should not be taken to dilute the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals.”
“He claims he was tortured by members of Boko Haram in Nigeria for not carrying out a killing they wanted him to do. His narrative appears consistent with his injuries in my opinion as a GP. He has no acute physical disability in the detention centre that I am aware of which impacts him being in the centre. However he does have significant mental distress from this episode and he will be referred to the Mental Health Team as per protocol to be assessed by them. I will be grateful if you would review this further and investigate as you feel necessary.”
“Consideration has been given to balance your wellbeing whilst in detention, against the risks of harm to the public and the need to maintain effective immigration control. It is also considered, in view of your history of offending which involves sexual activity with a female child under 16, that you present a risk to the public and that your detention is therefore justified. You are currently known to be receiving medication for mental health issues and although it is accepted that you are an Adult at Risk, the doctor has not indicated that a period of detention is likely to worsen your symptoms. The only barrier to your removal is the need for a travel document and this can be obtained with your compliance, therefore the onus is on you to co-operate in this matter. It is considered that if you comply, removal can be effected within a three-month timescale.”
“It is acknowledged that you are an Adult at Risk but it is considered that your removal can be enforced within a reasonable timescale. Therefore when balancing the indication of vulnerability against the negative immigration factors highlighted above and the timescale for your removal, it is considered that the negative factors outweigh the risks in your particular circumstances. Therefore a decision has been made to maintain your detention.”
“[AO] has frustrated the deportation process, … he has now lodged [an] out-of-time appeal. His risk of absconding is heightened given his reluctance to return and his previous history of obtaining forged documents to deceive the authorities… I am concerned that [AO] has been detained for 13 months, but aware that this is due to his avenues to frustrate the removal process. Investigations need to take place to ensure that the appeal process can be concluded within 3 months as stated in the review. I am not convinced that this may be the case… We may have to consider release…”
“His detention has been reviewed and a decision made to maintain detention”
“It is common ground that my statement in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles as follows: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”
“8. … The objectives are (i) the AP placement is a success so that the offender can move on to more permanent accommodation, having remained properly in contact with those responsible for his supervision and (ii) the offender does not re-offend, and does not raise his risk of re-offending, whilst on the temporary placement at the AP. Achieving these results are in both the interests of the offender and the public. 9. The principal factors that will be taken into account in identifying the most suitable AP include the following: 9.1 The individual circumstances and risks of the case (both risks presented by the offender and risks to the offender); 9.2 Family ties and other support networks in areas (such as friends, supportive professional organisations or community groups); 9.3 Positive links to an area such as employment and educational links; 9.4 Exclusion zones precluding residence in an area; and 9.5 The offender’s views, since, generally speaking, where an offender engages with the process and supports an AP placement it is more likely to prove successful. 10. The experience is that most often a placement in the area where the offender lived previously is the best all-round choice unless there are strong reasons that exclude this choice (i.e. due to a risk presented by or to the offender specific to his local area). …”
“… an NPS division only has responsibility for APs in its geographical area. If there is an unusual case where the best interests of the offender and the public are served by a transfer outside the home area, this will entail an additional search process involving other NPS divisions. This might arise if all APs in the NPS division’s area are within zones from which the offender is excluded, or the risk posed by or to the offender cannot be effectively managed within that NPS division’s area, for instance, because of gang ties. …”
“11. On4 June 2018 because of the complexities of securing accommodation in the Claimant’s case (relating to the waiting time and the pending legal action) it was decided that a MAPPA… level 2 referral should be made. The Claimant was already subject to MAPPA level 1 arrangements. The referral was submitted to a screening panel (i.e. a Public Protection Probation Manager at NPS and an officer at the local police force) to decide whether the case warranted this status. Cases are referred to MAPPA where there is an additional need to coordinate risk management between agencies (police, NPS and the prison), but more so where senior oversight is required, and to ensure that adequate resources are being applied to the case in the circumstances. 12. A referral for the Claimant’s case was accepted by the screening panel on6 July 2018 so that it would be considered by a MAPPA level 2 meeting on4 September 2018 . 13. On1 August 2018 I spoke with the Claimant on the telephone. I had tried to speak with the Claimant earlier. He stated that he was willing to go to Nelson House, and also was willing to go anywhere else in the UK apart from London. He told me that he would be OK in Manchester as there were people who would look after him, however he didn’t know where these people lived. He also told me that his children lived there and would feel safe there. However, he also stated that he was only allowed indirect contact with his children. He did not state any specific APs he would like to go to or provide any addresses, and had not done so previously. 14. On2 August 2018 I called CRU who informed me they would look into an earlier vacancy in the north east as a matter of urgency. That same day it was confirmed that there was a vacancy at Cuthbert House from11 August 2018 to the end of September. 15. However on7 August 2018 , it was decided that Cuthbert House was no longer deemed suitable as a far-right extremist offender was due to move in shortly, and he may pose a risk to the Claimant. A place was available immediately at The Crescent (Middlesbrough), and it was confirmed the following day that the Claimant would be moving there on10 August 2018 until late November 2018. 16. As mentioned, the Claimant’s case was held by NPS North East. Our division and in particular our Newcastle office therefore had specific knowledge of the circumstances of his case and the risks he posed. Because of this, I focussed on finding accommodation in the immediate north-east area (i.e. Newcastle, Middlesbrough, Gateshead, Sunderland), the areas we cover from our office. 17. I did at one point consider a search for accommodation nationally. I know so as I recorded this in the delius notes in an entry on2 August 2018 at 1400. However accommodation was found for the Claimant soon after and prior to that I decided that to do so would be problematic. 18. To try and locate accommodation outside the north east, we firstly need to request another NPS division to provide us with local supervision and oversight. Secondly, we would then need to establish that the case could be effectively managed in the receiving area. … Thirdly, there would also need to be a ‘move on plan’ in place, which plans for where the Claimant would be living after the placement in the approved accommodation ends. Fourthly, we would have to consider with the local NPS division how to co-ordinate this change in area, to avoid disjointed risk management, due to changes in supervising officers, risk management officers (police) and the impact this may have on the offender. 19. There is not a single process by which a national search for approved premises can be carried out. Each regional division of NPS has to be approached separately, so that the referral process can be initiated through their branch of CRU. From experience, I know this can be time consuming and has the potential to cause further delays in the process of finding accommodation. 20. In the Claimant’s case he was not able to show strong enough ties to any other area for me to justify such an approach, therefore his case was not referred to other NPS divisions because of this. …”
“Assuming, however, as I think, the Act does not require the immediate release of a prisoner if necessary conditions cannot be put in place, it is common ground that the Secretary of State is under a public law duty not to delay a prisoner’s release beyond ‘a reasonable timeframe’.” 158.McCombe LJ continued (at para 83): “In general terms, it seems to me that the decision as to whether any particular period prior to release of a life/IPP prisoner, with a residence condition, is unreasonable or not, will depend entirely on the facts of the particular case, unless it appears that the national unavailability of Approved Premises placements has had a genuinely adverse effect on an individual prisoner.”
“… The Claimant would have been provided with an AP address on the date his sentence expired if he was a UK national. It would have been unlawful to hold him beyond his release date. Because he was a foreign national, he was held beyond the date when bail was ordered because of the delay in finding an AP. This demonstrates a difference in treatment. This meant that the fact that the Claimant was a foreign national, delayed his release.”