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New ‘narrow’ Government definition of torture ruled unlawful by High Court judge

Medical Justice argued the new definition had led to “many” detainees no longer being recognised as victims of torture.

Former detainees and a charity have won a challenge against a Government policy change on torture said to have led to asylum seekers fleeing persecution being wrongly detained in UK immigration centres.

Mr Justice Ouseley ruled in their favour on Tuesday after hearing accusations that individuals were locked up during the processing of their asylum claims despite doctors submitting evidence of torture and ill-treatment to the Home Office.

The charity Medical Justice accused 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).

Their QC argued at a hearing earlier this year 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.

They launched the action arguing that the new definition – which has been on hold pending the judge’s ruling – had led to “many” detainees, including victims of trafficking, no longer being recognised as victims of torture.

The Home Office had contested the action brought by the charity and seven former detainees.

In his decision given in London, Mr Justice Ouseley said that “aspects” of the statutory guidance at the centre of the case – Adults At Risk In Immigration Detention (AARSG) – in relation to the definition of torture “are unlawful”.

Home Office policy accepts that 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.

During a hearing in March, Stephanie Harrison QC, appearing for Medical Justice and the individuals, said torture had previously been defined as covering acts committed by any individual or group.

The new definition referred to torture carried out by official state agents only or terrorist groups holding territory.

Two of the individual claimants 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. The new definition also failed to protect others, she said, 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.

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”.

Home Office lawyers told the judge in written submissions that it was fundamentally wrong to suggest its “adults-at-risk” policy excludes victims of torture who fall outside the Uncat definition.

They contended that the statutory guidance showed 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.

The judge heard that the Home Office admitted decisions to detain the seven individual claimants were unlawful because of “failures to apply the adults-at-risk policies correctly in their cases” and the question of compensation was under consideration.

In his ruling, he said the Home Secretary’s response to the case put forward by the claimants in the judicial review action was “essentially that the statutory guidance and policies have been misunderstood”.

At the heart of the case was the claimants’ contention that the Home Secretary “has issued unlawful statutory guidance, and policies, albeit for the lawful purpose of preventing those who are more vulnerable to harm in immigration detention from entering immigration detention, or removing them from it, unless there are sufficiently strong countervailing reasons”.

The judge found that the AARSG “falls short of meeting the statutory purpose which it is required to meet on the basis that there are some, excluded from the scope of ‘Uncat torture’, who do not fall within another indicator but yet are particularly vulnerable to detention”.

He said the “chief problem” with the Uncat definition, with or without the variant inclusion of torture by terrorist groups holding territory, “is that it excludes certain individuals whose experiences of the infliction of severe pain and suffering may indeed make them particularly vulnerable to harm in detention”.

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