This blog post was written for Unlocking Detention by Ali McGinley. It was first published on the Justice Gap.
Ali is director of AVID – the Association of Visitors of Immigration Detainees – and has managed AVID since 2009. Ali is a member of the Detention Forum coordination group, and co-convened the Vulnerable People Working Group of the Detention Forum.
Working on immigration detention requires a delicate balance. It is all too easy to forget what language can do when it becomes a political tool, as we’ve seen with the terms refugee or asylum seeker, so terribly misunderstood. And yet, in order to ensure we achieve the changes we want to see, to be taken seriously, we must use terminology that is understood by the audience we are trying to reach – the public, the policy makers, those who make the decisions about who is detained and who is not.
What we must not forget is that behind these labels are individuals, with stories to tell, and experiences which help us shed light on the injustices which would otherwise remain hidden. Every individual in detention is just that, and we should be careful to avoid categories which may disempower them further.
This is particularly the case when discussing vulnerability in the detention context. Arguably everyone in detention is vulnerable, in that they are without freedom, totally disempowered by a system that keeps them in legal limbo, without time limit. Detention is hugely traumatic for anyone who goes through it. But it is particularly traumatic for certain groups of people, for a variety of reasons, which make them more at risk of harm than others. How this is defined, understood and acted upon by the Home Office has been a great concern to the Detention Forum for many years. Visitors groups and others supporting detainees have seen numerous people in detention who have been trafficked to the UK, or who have survived torture, or who have severe mental health needs. We have also been in contact with young people under 18, with pregnant women, or people with disabilities. All of these are – according to the Home Office’s own policy guidance – groups who should only be detained in exceptional circumstances, because they meet the criteria and can be allocated to a particular ‘category’ of vulnerability.
But having researched this topic for the last two years as part of the Vulnerable People’s Working Group of the Detention Forum we have concluded that this category based system is fundamentally flawed. Many end up in detention despite being part of one of these so called groups, and equally, others may also be vulnerable although they don’t meet the definition of a ‘torture survivor’ or a ‘seriously mentally unwell person’ as set out by the Home Office. These are individuals, with complex histories and experiences, who may also be at risk in detention. As a result, many vulnerable people remain in detention, unable to access the support they need and at risk of further harm.
Locked up and at risk
Over 18 months, we gathered 31 case studies from various Detention Forum members, all involving men and women who were detained at some point in 2013. All 31 cases were people who were locked up despite, in our view, being vulnerable and at risk. The findings will come as no surprise to those familiar with the realities of the detention system; 77% of our sample had experienced a mental health issue, and all described their mental health worsening throughout their incarceration. In five of the cases, there had been a diagnosis of severe mental health need prior to detention. One man, Jacques, was detained for over two months, despite suffering from post-traumatic stress disorder. There were very serious indications that he was unwell in detention, including blackouts, dizziness, running around naked and shouting incomprehensibly. While detained, he was regularly placed in isolation which only made his confusion and paranoia worse.
Around a third of our study had experienced torture. Three had declared this in the substantive interview, but were detained anyway and this was never followed up with either a Rule 35 or a medical review. They all described difficulties in detention in accessing medical services in order to corroborate their claims of torture. Sam, for example, had a history of torture and imprisonment in his home country. Once detained, his PTSD deteriorated so rapidly that he became suicidal.
We also discovered cases of people with serious disabilities, people like Claire, who suffered a stroke and is paralysed on one side so she can only walk with a stick. She was released after 15 months having been found not fit to fly. She still finds her time in detention too painful to discuss. We were shocked by the case of a woman who had been trafficked to the UK and forced into prostitution, who was then put on to the Detained Fast Track process. A boy of 15 was detained and held for six months. The list goes on. And yet, these are all people who would, by the Home Office’s own criteria, be defined as ‘vulnerable’.
Outside predefined categories of vulnerability
We also looked at cases of people who would not fall under one of these predefined ‘categories’ of vulnerability, but who arguably were at risk of harm in detention and who became more ‘vulnerable’ over time. One man reported that he was not treated for a physical injury until his symptoms became so serious as to merit a hospital visit. Living with this pain impacted hugely on his wellbeing and mental health. There were other factors that affected how well someone coped in detention, such as literacy and language barriers.
Those who had come from a prison background were more likely to experience long term detention and described the deterioration in their mental health as detention continued. Unlocked bannerAll of these cases demonstrate that vulnerability in detention is complex and goes way beyond pre-determined categories. Vulnerability is a dynamic interplay between a range of factors: personal, social and environmental, all of which are fluid and change. As such, vulnerability needs to be assessed both holistically and individually – and over time. How well you cope or otherwise can be affected by your family situation, your own coping mechanisms, your living conditions, your health, your past experiences. There is more to vulnerability than can be assessed in one screening interview.
A new vulnerability tool
Our research concluded that the Home Office has failed to follow its own guidance and continues to detain those who, by their own definition, are vulnerable individuals, and that detention centres are inadequate to meet these people’s basic care needs. We also found that the guidance itself is inadequate, as it doesn’t take into account the variety of factors which combine to make someone more or less vulnerable, nor does it consider changes over time.
We call into question how reliable this category based approach is, and suggest a rethink of this model, and a move towards a more comprehensive and holistic assessment using a vulnerability tool that takes into account the variety of factors that make someone more or less vulnerable, but is also flexible enough to allow assessment over time. There are various examples internationally and nationally of good practice in vulnerability assessment which we outline in our report, and the Home Office should consider these as a priority, particularly in light of the rising concerns about the welfare of the most vulnerable which led to the commissioning of the Shaw Review earlier this year.
Use of such a vulnerability tool would also effectively reduce at one stroke the number of people detained.
A key finding of the Parliamentary Inquiry into Immigration Detention earlier this year is that detention is used far too frequently. Far from a last resort, immigration detention is the norm. We now detain over 30,000 people a year. This includes people like Claire, or Jacques, or Sam. Is it really necessary to lock up children, or people who are seriously mentally unwell, or pregnant women? We don’t think so, and neither did the 26 MPs who spoke up in the recent Parliamentary Debate on the Inquiry’s recommendations and called for reform. The introduction of a holistic vulnerability assessment would be one such reform, and a first step away from the ‘detain first, ask questions later’ approach which has led to the disproportionate numbers locked up around the UK. It would also reduce the number of cases of unlawful detention, which continue to rise, and to shame our country’s human rights record. And, importantly, it would ensure that individuals are assessed as individuals.