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Definition of torture under scrutiny from charity in High Court case

A new definition of torture has led to asylum seekers fleeing persecution being wrongly detained in UK immigration centres, the High Court has been told.

A senior judge heard accusations individuals were locked up during the processing of their asylum claims despite doctors submitting to the Home Office evidence of torture and ill-treatment.

The charity Medical Justice is accusing the Government of adopting an unreasonably narrow definition of torture in policy changes made last September related to Article 1 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Uncat).

The Home Office contends there has been a basic misinterpretation of its "adults at risk" detention policy and is urging the court to dismiss the application for judicial review, which could affect hundreds of other cases

The new torture definition is currently on hold while the High Court in London rules whether or not it is lawful.

Home Office policy accepts asylum seekers who can show evidence of torture should only be detained in exceptional circumstances because of the risk of them being harmed by detention.

Stephanie Harrison QC, appearing for Medical Justice and individual detainees, told the court torture had previously been defined as covering acts committed by any individual or group.

But the new Uncat definition referred to torture carried out by official state agents only, or terrorist groups holding territory.

Two individual claimants before the court are women who say they suffered severe ill-treatment at the hands of persons who were not state agents and were subjected to sexual violence, rape and human trafficking for sexual exploitation.

Ms Harrison said both had fallen outside the new Uncat definition of torture and were not protected from detention.

Doctors who had examined the women had referred to scars and wounds and psychological damage as evidence of ill-treatment.

Home Office caseworkers concluded if ill-treatment did occur it could not be defined as torture as the attack was not carried out "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity".

Ms Harrison told Mr Justice Ouseley that the new definition also failed to protect others, including individuals who had been seriously ill-treated at the hands of drug traffickers or because of their race, religion, or because they were homosexual or members of an ethnic minority.

Ms Harrison accused the Government of "sleight of hand" in introducing the policy change with "no proportionate or rational justification".

She argued that torture did not only occur in police stations or at the hands of state security forces but also "in your own home or in hotels".

She said non-state religious persecution was particularly prevalent at present in the Middle East, and many asylum seekers were coming to the UK from Iraq and Afghanistan.

Ms Harrison argued that there was no "lawful authorisation" for replacing the broader meaning of torture under the Detention Centre Rules 2001, and the change did not comply with the Government's public sector equality duty under the Equality Act 2010.

She also argued that the protection given to survivors of torture against detention threatened to be unlawfully weakened by the changes.

Home Office lawyers say in written statements before the court that it is fundamentally wrong to suggest its "adults at risk" policy excludes victims of torture who fall outside the UNCAT definition.

They contend that statutory guidance shows it includes those who have experienced a traumatic event - of which torture is one example - likely to make them particularly vulnerable to harm if placed in detention.

They state the Home Office has already admitted that decisions to detain the seven individual claimants in the challenge were unlawful because of "failures to apply the adults at risk policies correctly in their cases" and the question of compensation was under consideration.

The Equality and Human Rights Commission, which is intervening in the case, expressed its "deep concern".

EHRC chief executive Rebecca Hilsenrath said: "Victims of torture have already suffered immensely, and face the risk of going through the trauma of detention all over again.

"Britain has a long history of helping refugees from around the world, and we must not weaken our resolve to protect those who have suffered from persecution and torture.

"We are deeply concerned that the proposed changes could mean that many individuals who have been subject to torture in the past will not be protected."

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