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"Rule35" and the PB judgement PDF Print E-mail
Written by Emma Ginn   
There have been two new important developments that could help more vulnerable detainees get released from detention ; a policy change on "Rule 35" and a High Court judgement.

The High Court judgement might be relevant to ex-detainees, for whom "Rule 35" was not properly implemented when they were detained, in seeking compensation now.

PROTECTING VULNERABLE PEOPLE IN ADMINISTRATIVE IMMIGRATION DETENTION

Section 38 of the Operations Enforcement Manual of the Borders and Immigration Agency (BIA) states that torture survivors, children and people with serious medical and psychiatric conditions should only be subjected to administrative detention only “under very exceptional circumstances.”

Over the past two and half years, Medical Justice has helped hundreds of detainees who fit these criteria. Owing directly to our interventions, the majority have been released. Most of them have also been able to bring fresh claims for leave to remain on the basis of our medical evidence our volunteer doctors either produced or helped them obtain. Some of these (ex-detainees) have already been granted status.

It is clear that vulnerable people are routinely detained in violation of BIA policy.

Our activities have recently contributed to an important BIA policy change and a High Court judgement which can further help to obtain release for those who should never have been detained in the first place:

1) Changes to Rule 35 reports about detainees with “special illnesses” including torture.

2) A High Court judgement which holds that it is unlawful for BIA and detention centre managements to fail to ensure competent medical examination of detainees who have evidence that they are survivors of torture.

Detention Centre Rule 35

Detention Centre Rule 35 requires detention centre doctors to report to BIA “any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.”

This applies to all vulnerable groups.

Until recently, such reports (when sent) have almost invariably been ignored by BIA case-workers. Furthermore, in many cases seen by Medical Justice, the mandatory “long admission clerking” (during which a nurse must see the detainee within two hours of arrival) of detainees on arrival (usually by a nurse) has often failed to elicit the documenting of blatant evidence of torture.

BIA have recently issued a new Detention Services Order (DSO 3/2008) and a related Asylum Policy Instruction (Reports of Special Illnesses and Conditions (Including Claims of Torture) Received from Immigration Removal Centres, Regarding Detainees)

These are worth studying in detail, because they provide a new basis for protecting our clients/patients. They can be accessed by clicking on underlined words, but to summarise:

DSO 03/2008 provides a new Rule 35 pro-forma for reporting evidence of unfitness for detention.  DSO 03/2008 requires that if a detainee claims to be a person whose health is likely to be injuriously affected by continued detention or any conditions of detention (including torture survivors), the detention centre doctors must make a report on the detainee's claim and send it together with a completed Rule 35 pro-forma to the BIA Contact Management Team and file a copy in the medical notes, which the detainee, their independent doctor and lawyer have the right to access.

The  Asylum Policy Instruction requires that:

1) Within 24 hours of having received the report, the BIA Contact Management Team must fax the BIA casework unit or case owner (whoever is responsible for conducting the detainee's detention review) a copy of the report along with the Rule 35 pro forma.

2) The officer conducting the Detention Review must:
a) Carry out a Detention Review and decide whether continued detention is appropriate;
b) Complete a form and fax it back to the relevant Immigration Removal Centre (IRC), no later than 2 working days, starting from the following working day that the fax was received.
c) Forward another form to the detainee's legal representatives and the BIA manager at the IRC before it is forwarded on to the detainee and placed in the medical notes.

3) The Rule 35 documentation must be considered as part of the substantive asylum claim.

4) If the detainee is “Appeal Rights Exhausted” the BIA case owner/case worker must treated the Rule 35 documentation as further submissions and if refused, paragraph 353 of the Immigration Rules should be applied … “Caseworkers/ case owners must refer to the AIs on Further Representations and Fresh Claims and Submissions received after refusal of an asylum or human rights claim, to assess whether the report warrants a grant of status, and if not, whether the submissions amount to a fresh claim (which it may be appropriate to certify under s.96 of the 2002 Act - see IDI on Appeals - The One Stop Procedure).”

5) Where the report comes from an independent source (as opposed to from a detention centre clinician), the source of the allegation (of unfitness for detention) should influence the weight to be placed upon it (e.g. is it from a doctor who has examined the patient), and the action a caseworker/case owner will need to take.

6) Where a request is received  from a detainee/ or his/her Legal Representatives that the detainee be  released from detention in order to obtain an independent medical report, the officer responsible for managing detention should consider the request in light of all the facts.

Case study:
An MJ doctor recently saw a family in a detention centre, who had removal directions for 5 days after the visit. The father has strong evidence that he had been tortured, but was adamant that the IRC medical notes were inaccurate in recording “NO” - he was certain he had not been asked. The mother had been asked, and the medical notes accurately recorded that she had stated that she was raped and tortured in her country of origin. A rule 35 report had been completed (by a nurse, not a doctor) and was in the medical notes. The report alleged “no evidence seen”. The woman had two highly visible lesions (which should have been obvious to the nurse) which were typical of cigarette burns, a common form of torture. Following representations from the independent doctor, the woman was examined by the detention centre doctor. It is not clear what happened next, but the family were released the following day on temporary admission.
 

The High Court judgement recently promulgated in the case of PB

A March 2008 High Court judgement was issued concerning a woman (PB) who has strong medical evidence confirming her claims to be a rape and torture survivor, and who had been detained for an extended period. During that time she was not examined by a detention centre doctor. After just over six months she was released as a result of her representatives bringing a High Court action for judicial review. Click here for a summary .

1) The Judge held that her detention was wrongful because in failing to offer a medical examination which could and should have revealed such evidence, detention centre rule 35 had been breached.

2) The woman will receive compensation    

3) Following a statement by Baroness Scotland on behalf of BIA to the House of Lords in January 2007, it was BIA policy to refer any person suspected of being a survivor to torture to the Medical Foundation. According to the Foundation, this has never happened, before or since.

Guardian article about PB's case

The implications for MJ clients/patients are:

(On all these matters legal advice should be taken. The following are general pointers.)

"Can a "vulnerable" detainee apply for a Judicial Review of their detention like PB did ?"
If a rule 35 report was not produced and a rule 35 report would, on the balance of probabilities have shown that there is independent evidence of torture; and if there were no other exceptional reasons why they should have been detained then they will usually be able to show that had had policy been properly followed, they would have been released from detention.

"Can an ex-detainee who was in PB's situation now seek compensation now, and is there any time-limit ?"
Yes.  If their detention was more than 3 years ago they will probably be out of time, though there is discretion to extend time.

"Does length of time detained matter ?"
The length of time in detention should be longer than 48 hours, which is the reasonable period in which a Rule 35 report should be produced.

"Does the (ex)detainee need to have had a medico-legal report (MLR) backing claims of torture ?"
Yes, and realistically, a strong one.

"If the (ex)detainee does not have an MLR, can a solicitor obtain legal aid funding now to get an MLR commissioned ?"
It depends.  The (ex)detainee should seek legal advice.

 

Using these new tools

Independent clinicians:

1) When seeing a patient who gives a history and shows evidence of torture in detention, look at the “long admission clerking” notes. See if the mandatory section on history of torture is led in. If the question is answered as “YES”:
a) Has the patient been examined by the centre doctor? Are their examination findings accurate? Was a rule 35 report submitted ?
b) If yes, has BIA responded in writing within the required time frame and is the response appropriate?
c) If not, record your findings in the medical notes, with a comment that such a report should be submitted and submit one yourself. To find the responsible official, speak with the onsite BIA Contact Management Team.

2) If (as not infrequently happens) the detainee is adamant that they were not asked the “torture question” or a false negative answer is recorded, write this in the notes and advise the detainee to report their history to the detention centre doctor, with a request for examination and the production of a rule 35 report.

3) If you consider that detention is inappropriate by reason of serious medical or psychiatric illness and/or failure to diagnose or adequately treat same in detention:
a) Write this in the notes.
b) Advise the detention centre doctor by phone or fax that a rule 35 report may be indicated.

4) Keep a copy of your entry into the medical notes and supply it to the detainee and lawyer (if any).

Legal representatives:

1. Obtain a person's medical records from the healthcare centre to ascertain whether a Rule 35 report was produced by a GP.

2. Obtain the Home Office file with a subject access request under the data protection act. Ascertain what was done and what consideration was given to any Rule 35 report.

3. Ascertain what consideration was given to medical evidence in determining the asylum claim.

4. Consider referral to the Medical Foundation for the Care of Victims of Torture.

Supporters:

If the health of the detainee you are supporting is “likely to be injuriously affected by continued detention or any conditions of detention” (remember that Rule 35 applies not just to torture victims but also to medical and psychiatric unfitness for detention), ask the detainee to check (by reading their medical notes or getting their authorisation for a  copy to be sent you) that a Rule 35 report has been or will be done ;

1. Making sure the detainee demands a Rule 35 report  
If the detainee has not already done so, suggest s/he goes to the detention centre healthcare centre and says s/he is a person whose health is likely to be injuriously affected by continued detention or any conditions of detention, and why.  Also, that s/he requests a Rule 35 report is generated and processed as set out in the Detention Services Order and Asylum Policy Instruction, and, that the reported is noted in his/her medical records, that s/he is given a copy of the Rule 35 report, and s/he is given a written response from BIA to the Rule 35 report.

2. Checking the appropriate legal steps are being taken  
Find out if the detainee's legal representative has done the steps outlined in “Legal representatives” above.  If not, speak to the legal representative as to why these actions have not been carried out.   If appropriate, discuss with the detainee about finding a new legal representative.  Make sure the legal representative has the PB judgement and ask if it could be relevant in this case.

3. If an independent doctor is needed
If there is no independent doctor involved, and you know of a reason why there should be, consider suggesting the legal representative gets one, or making a referral to an organisation that can help (preferably a funded, staffed organisation like the Medical Foundation or the Helen Bamber Foundation, or Medical Justice as a “last resort”).

Notes
o It is strongly recommended that you have, and are familiar with, all the detainee's relevant documents, e.g. asylum appeal determination, documents relating to any subsequent legal challenges, and health records / reports

o If you are not qualified to give legal advise and regulated by the OISC, make that clear to the detainee and emphasise that anything you say should be treated as suggestions only.
Last Updated ( Tuesday, 18 March 2008 )
 
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