UN Convention less effective in UK than other states

In our report on Sri Lanka (Caught in the Middle: a study of Tamil torture survivors coming to the UK from Sri Lanka) we concluded that "The Home Office refusal letters written to Sri Lankan clients show a very high proportion of reasons that are only general and not specific to the individual circumstances of the claim -[they] draw negative conclusions about the claim based on generalised and unsubstantiated assertions about how genuine refugees are expected to behave, or about the Sri Lankan Government's claims of improvements to the human rights situation there." We also cite examples of Immigration Officers not always making it easy for asylum seekers who are torture victims to give a full account.

The report on Pakistan Evidence of Torture: a study of Pakistani torture survivors coming to the UK (featuring 51 Medical Foundation clients) will make similar findings of the Home Office's response to the evidence of torture given by our clients: that the Home Office uses language to downplay and marginalise the reality of the torture that clients have described, often in considerable detail; that general negative conclusions are drawn about the details of their claim; and that a proper evaluation of the individual's account of torture is hardly ever made.

The concept of a "designated list" and the increasing practice of interviewing people substantively immediately on arrival, create dangers for torture victims who often find it especially difficult to relate their experiences.

The reasons given for refusing asylum claims by our clients whose cases we have investigated focus on ways in which their credibility is thought to be undermined, and sometimes use the wrong legal tests. Nor do the refusal letters make a full and individual assessment of the applicant's history of torture. It is this latter point which is of most concern to us as a treatment centre for survivors of torture. This very serious failure has now been one of the principal conclusions of each of our reports that examine the UK Government's treatment of Medical Foundation clients with medically documented histories of torture.

Certification (**)

Freedom from Torture referred in its previous report to the UN Committee Against Torture in October 1997 on the occasion of the UK's Third Periodic Report to the Committee. We stated there that:

The current Asylum and Immigration Act 1996 s 1(5) provides that asylum seekers who establish reasonable evidence that they have been tortured in the country to which they would be deported will not have their appeals heard under accelerated procedures. While the Medical Foundation is glad that our clients benefit from this provision, we are not convinced that asylum seekers who are torture victims are adequately protected in current asylum legislation. The thrust of the Act is to make it more difficult for asylum seekers who are victims of torture to have their claims considered adequately. The concept of a "designated list" and the increasing practice of interviewing people substantively immediately on arrival, create dangers for torture victims who often find it especially difficult to relate their experiences.

Our evidence of the way our clients' asylum claims have been decided since we wrote that comment has given rise to very serious concerns about the way in which what an asylum seeker says in interview is disregarded. The provision of a designated list of countries where there is in general no serious risk of persecution has now been removed in the 1999 Immigration and Asylum Act (see Schedule 4 paragraph 9 of that Act). However until then, many Medical Foundation clients who had come from one of the countries on that designated list had their claims certified even though they had given oral testimony that they had been tortured.

The Home Office states: "Caseworkers are also aware that it is inappropriate to certify as manifestly unfounded applications where there is reason to believe that the applicant may have suffered torture".

However, the reports on Sikhs from the Punjab and on Sri Lanka found that despite clear evidence from clients about their torture given at their interviews with the Home Office, several cases were inappropriately certified.

In the case of Pakistan, 21 of the 29 cases of refusal that we examined had been certified on the basis of being liable to be sent to a designated country. One was certified on the basis of failure to declare false documents. Of the eight cases not certified, six had their claims decided before the policy on designated countries had been implemented. It is not clear why the other two were not certified although it is not mandatory to certify a claim that could be certified. Neither of them had given at interview any fuller information about their torture than had some of those who did have their claims certified.

Why is the evidence adduced at interview not sufficient to exempt from certification? The second phrasing is just wrong; the applicant's own oral or written testimony is evidence of torture.

All of those certified except one had given evidence of torture at interview. The client who did not give information about his torture (MF 15171) said at the appeal hearing that he had tried to do so but had been told by the Immigration Officer just to answer the questions.

In spite of this testimony at interview, the refusal letters all conclude by saying that the torture exemption does not apply either "because the evidence you have adduced does not establish that you have been tortured", or "because you have adduced no evidence relating to torture". The first formulation is highly debatable. Why is the evidence adduced at interview not sufficient to exempt from certification? The second phrasing is just wrong; the applicant's own oral or written testimony is evidence of torture.

We have commented in our earlier reports on the Punjabi Sikhs (pages 33, 43) and on Sri Lanka (pages 45, 46, 52) on the practice of the Home Office continuing to certify claims even though the applicant gives evidence at interview that she or he has been tortured. We are at loss to understand the reason for this illegal practice.

An important effect of the constant reiteration that in certain countries there is "in general no risk of persecution" is to create a context that is not conducive to examining cases with an open mind. It may be harder for individuals coming from those countries to persuade decision-makers that a particular claim has a real basis. This may create a mental barrier to the accurate assessment of the degree of risk the asylum seeker might face. However, perhaps the most significant effect of certification is the risk that, as Judge Turner remarked in the case of R v SSHD ex parte Javed, Ali and Ali (High Court, 2001), "The fact of certification meant that there was no means open to the applicants to challenge unlawful decisions." The wrongful certification of asylum claims where there is evidence of torture thus constitutes a breach of the Human Rights Act in that no effective remedy is provided for breaches of Article 3 of the European Convention on Human Rights, the torture provision. It also constitutes a breach of the UK's obligations under that Convention. In addition it suggests that the UK may also be in breach of the UN Convention Against Torture.

"The fact of certification meant that there was no means open to the applicants to challenge unlawful decisions."

Our examination of the refusal letters written to these clients demonstrates that decision makers repeatedly ignored testimony of torture to the extent of asserting that there had been little or no evidence of torture provided. We consider it unreasonable of the Home Office to regard the asylum seeker's own testimony of torture insufficient to avoid certification. It is not clear why further evidence should be required to avoid certification, although it may be reasonable to require additional material before deciding the claim.

In the face of all this evidence, we are unconvinced that Home Office claims, which we have heard repeatedly for some years, that "any evidence of torture will be taken very seriously" are being implemented in day-to-day decision making. The deficiencies we have identified in respect of four different countries and nearly 200 clients indicates that, at least for a number of applicants with a history of torture, the procedure is manifestly failing to evaluate these histories in relation to country information about torture, their own testimonies and the medical evidence. This inadequacy is leading to a systematic failure by the UK to honour its international obligations to protect asylum seekers.

Failure to take into account information on human rights abuses in the country of origin of asylum seekers with a history of torture

Our studies of torture survivors from particular countries already referred to, especially that on Sri Lanka, show in our view a failure to take into account information on human rights abuses in the country of origin of asylum seekers with a history of torture. the failure is of two kinds: failure to make an assessment that is in line with that made by all other human rights observers and therefore probably inaccurate; failure to bring to bear on the individual asylum claim information about the situation in the country of origin that would support the claim.

Our reports on Turkey, Sikhs from the Punjab and Pakistan show what we consider to be evaluations of the human rights situation that present the country in too favourable a light. On Turkey we found that the Home Office assessment of the human rights situation underestimated the risk of torture or persecution that would be faced by asylum seekers if returned. It found that its estimation of the degree of risk to Kurds was flawed; that Alevi Muslims were at risk of persecution, and that many are detained and tortured not because they individually are of interest to the authorities but to frighten and intimidate the population as a whole. However these arguments are specifically rejected by the Home Office in responding to the claims of Medical Foundation clients who are Turkish Kurds.

In our report on Sikhs from the Punjab we found a rather different problem. That the then current Home Office Country Information and Policy Unit Country Assessment on India contained well-attested information about continuing human rights abuses in the Punjab, including torture as well as the illegal undercover operation of Punjabi police elsewhere in India. Home Office refusal letters and Immigration Appellate Authority decisions too often refer to nominal improvements in the situation in the Punjab as though the promise and delivery of human rights protection were the same. They quote selectively from the Home Office's own CIPU Country Assessment to belittle the danger to the applicant were he to be forcibly returned. They go on to argue that purported general improvements mean that there is no or minimal risk to a particular individual, which is wrong in logic and in law.

On Sri Lanka we found glaring examples of accurate human rights assessments that were never brought to bear on the circumstances of an individual claim. Worse than that, the reasons for refusal letters make assertions about the human rights situation in that country that is not reflected in, or is contradicted by, the Home Office's own Country Assessment. We gave examples referring to: persecution by the LTTE and by pro-government militant Tamil groups; the efficacy of measures to safeguard human rights; bribery of police officers; when torture is likely to occur. Many of the clients whose cases we featured in our report shared the characteristics described in the Country Assessment as putting them at risk of detention. These were: being from war zones, being young, not speaking Sinhalese, having relatives in the LTTE, having been identified by informers as being LTTE supporters, having scars. The Home Office in fact has considerable evidence which, if considered alongside the accounts given by these clients, would ground a prima facie claim for international protection.

In each of our examinations of clients from individual countries we found an eagerness by the Home Office to consider the particular circumstances of the claim when those could be used to discredit the applicant, but a marked lack of willingness to consider the applicant's own individual history, including their history of torture, when that evidence might go to support their claim for asylum. We consider this behaviour means that the UK is failing to give protection to many asylum seekers in fear of torture, contrary to its obligations under the UN Convention Against Torture.

ARTICLES 6 and 7

Prosecution of those accused of torture

Freedom from Torture was accepted as a "third party intervenor", or specialist expert, assisting the House of Lords sitting as the final appellate court when they determined whether former Chilean dictator General Augustus Pinochet should enjoy immunity from prosecution for torture and other crimes against humanity in Britain, and hence avoid extradition to Spain.

Freedom from Torture laid before the House of Lords affidavits concerning more than 60 cases of torture and disappearance in Chile. When the Law Lords ruled that the cases of torture that could be heard against General Pinochet should be limited to those that took place after December 1988, when torture became a crime under UK law, the Medical Foundation ensured there were affidavits from torture survivors who fulfilled that criterion.

Similarly, when the High Court ruled that General Pinochet enjoyed "Head of State Immunity" for the period that he was President from December 1973 to 1990, the Medical Foundation obtained for the House of Lords affidavits involving cases from before and after that period.

The affidavits that were obtained were also submitted to the Attorney General with a request that, should extradition not be granted, General Pinochet should be prosecuted in Britain under the Criminal Justice Act 1988 which incorporates the 1984 UN Convention Against Torture. The Medical Foundation was particularly disappointed that five separate approaches to the Attorney-General did not result in his instigating an investigation or prosecution of General Pinochet under the 1988 Criminal Justice Act.

General Pinochet was allowed to return to Chile after three British doctors concluded that he "would not at present be mentally capable of meaningful participation in a trial". The Medical Foundation's Head of Clinical Psychology, Dr. Nimisha Patel, critically evaluated the neuropsychological assessment of General Pinochet which the doctors had apparently used as the basis for their findings.

Her report, in which she stated that the assessment was inadequate in many respects, has now been entered into court proceedings in Chile, where General Pinochet faces trial for human rights abuses, in case his mental faculties are again called into question, and the assessment carried out in Britain is used to influence the court in his favour.

ARTICLE 11

Detention of torture victims

Freedom from Torture considers that torture survivors should not be detained under Immigration Act powers, since the further detention of people who have already suffered so greatly is, from any moral standpoint, inadmissible. Detention of torture survivors can have serious psychological effects. It can compound the effects of previous detentions. Further detention puts torture survivors in circumstances of relative isolation, often exacerbated by their lack of English, thereby increasing the likelihood of their reliving and fixating upon past horrors, with few, if any, means of relief, increased anxiety and distress, and the possibility of self-harm and suicide.

We are aware that current policy is that in certain circumstances survivors of torture may be detained. We are also aware that people are detained who have not been identified and/or have not identified themselves, as survivors of torture. Our particular interest thus lies in ensuring that survivors of torture in detention are identified at the earliest possible stage and that all possible barriers to their release are removed.

We welcomed the commitment given at paragraph 12.4 of the White Paper Fairer Faster Firmer that "evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release while a claim is being considered" and the acknowledgement of "the need to exercise particular care in the consideration of physical and mental health when deciding to detain".

How are these commitments to be honoured? They require that those deciding to detain know any history of torture, and know about the health of the detainee. Our evidence suggests that there are still no satisfactory mechanisms in place to ensure their implementation and that torture victims are still being detained despite ample evidence of torture available.

Freedom from Torture doctors provide medical reports to document torture at the request of asylum seekers' legal representatives. This includes medical reports made on asylum seekers who are detained. We have recently concluded an investigation into the circumstances of asylum seekers with a history of torture who have been detained in the UK and whose torture we have documented. This report is attached as an Annex.

Research findings

Between 1 January 1999 and 23 June 2000 the Medical Foundation examined and documented the torture in their countries of origin of 17 clients who were detained in the UK under Immigration Act powers. The report found that all the clients examined had scars, signs and symptoms that they attributed to their torture in their country of origin and which the examining doctor found to be consistent with the history. All the clients (except one) showed some degree of mental distress although this varied across a wide spectrum, from tearfulness when describing torture to serious mental disturbance. Depression, suicidal ideation, feelings of hopelessness, rumination, intrusive thoughts, flashbacks, loss of concentration, sleep problems and nightmares were the symptoms most commonly reported.

We know that in 11 cases the Home Office already had information from the applicants' asylum interviews that the clients had suffered torture. Staff in some detention facilities also provided evidence that the detainees had suffered torture. Fifteen of the men had physical problems, usually of pain resulting from torture; five of them suffered urinary problems following sexual assaults. The files of six of the men referred to treatment in detention, usually pain killers or anti-inflammatory medication. The files of seven of the 16 men with psychological problems mentioned that medication was being prescribed, usually sleeping tablets or antidepressants. The report details cases where the treatment was thought to be inadequate.

All the information about the detainees' past torture and their present distress that we have rehearsed here was made available to representatives making applications to the Home Office for release. Yet detention was maintained, in most cases for several months, after the medical reports were written. Yet there is no indication from the actions of the Home Office that this information was brought to bear on the decision to detain. Other factors, such as having used some form of deception, were seen as overriding.

Policy concerns

Unless changes are made to the way the current policy is implemented, torture victims will continue to be detained and much unnecessary suffering inflicted.

Failure to record a history of torture or state of health when deciding to detain

Where information has been obtained about a history of torture, or where there are health problems, one would expect these to be recorded. But there is nowhere to record such reasons on the form (IS91R) giving reasons for detention. The Medical Foundation was among the organisations responding to the Home Office's consultation Detention New Forms and Procedures, a consultation which closed on 21 January 2000 and has yet to report. We raised there, as in the debates on what is now the Immigration and Asylum Act 1999, the need to record factors militating against detention. This has not been done. The forms in question have not changed. We are extremely disturbed by this. We identified important changes that needed to be made to the forms and guidance without delay. We cite just one example:

We are concerned at the contents of the Special Needs section of the form and at the guidance given. The statement "1.3 Careful consideration should be given before using this categorisation as the resources used in monitoring such detainees are expensive" appears to us irresponsible in respect of some of the categories listed as special needs, notably suicide risk, medical, disabled, minors, pregnant women and food and fluid refusal. The sentence that follows, and the final sentence of 1.7, are insufficient to undo the damage that the comment cited may have done, indeed they appear to be little more than apophasis in the circumstances. Custodians should be sufficiently trained to recognise where one of the categories applies. If they are not, detention will not be safe, for the detainee and, in some circumstances, for other detainees and for custodians. A properly trained custodian should be able to identify where it is proper to include this information on the form. No comments should be included that might dissuade him/her from doing so.

The detention reasons form IS 91 is in checklist form. This is contrary to UNHCR guidance. UNHCR stated in their written evidence to the Special Standing Committee considering the Bill that became the Immigration and Asylum Act 1999:

"Individualised written reasons, as opposed to repetition of generic formulae, for detention should be given to asylum seekers at the time of arrest."

Not only do the reasons for detention appear as a checklist, so do the reasons for saying that these reasons apply to a particular individual. An example will illustrate this. One possible completion of the form would be the following:

"Reasons for detention

You are likely to abscond if given temporary admission or release. 4 This decision has been reached on the basis of the following factors (tick all boxes that apply).

You have failed to give satisfactory or reliable answers to an immigration officer's enquiries. 4 Your unacceptable character, conduct or associations. 4 "

This list does not tell the detainee what it is the reason for detention. It does not explain, simply, clearly, or otherwise, why detention is considered appropriate and does not explain the factors taken into account in reaching the decision to detain. It is virtually useless to a detainee or representative seeking to make a case against it at a bail hearing because it does not set out the case they have to meet. The covering letter to the Detention: New Forms and Procedures Consultation set out the standards by which the form IS91R was to be judged:

• Written reasons for detention were introduced with the aim of providing detainees, and where known, their representative, with the reason for detention
• The notice is intended to explain simply and clearly the legislative power under which the person has been detained, the reason why detention is considered appropriate and the factors taken into account in reaching the decision to detain.
• It is accepted that the detainee, or his representative, will use the notice as a basis for producing further information or guarantees that the person qualifies for the grant of temporary admission or release or will comply with bail."

The form IS91R falls far short of all these standards.

The form must set out the factors militating against detention. Those mentioned in the White Paper are age, mental or physical illness and a history of torture. Clearly these could not be included on the present form. There would need to be a new section. But, most importantly, the form must then explain, with express reference to these factors as they present in the individual case, why detention is being maintained in that case.

During the passage of the Immigration and Asylum Act 1999 we pressed for factors militating against detention to be recorded. The matter was discussed, for example during the House of Lords Third Reading debate on the Immigration and Asylum Act, where the Earl of Sandwich raised our concerns (Hansard, H.L. Report 2 November 1999 Columns 775 to 776). His comments received support from all sides of the House (columns 771 to 773, and 776 to 778).

Lord Williams of Mostyn said in reply:

Many of the points raised by the noble Lords I identified by name [the reference is to the Earl of Sandwich, the Lord Hylton, the Lord Clinton-Davis, the Lord Sheppard of Liverpool and the Lord Alton] are properly raised. It is a great pity that the need to give this information was not included in the instructions to immigration officers requiring that written reasons for detention be given in each case. In response in particular to my noble friend the Lord Sheppard, officials are due to review both the instructions and the written reasons for detention early in the new year and I hope that if possible the form will be amended to include any information known which supports a history of torture. On behalf of my noble friend the Lord Bassam and myself, the thrust of what was said found immediate favour with us. We cannot bind ourselves to the content of the form, but the points seemed to both of us to be well made and we have the opportunity of reviewing the instructions and the written reasons. I have to say that the immediate feeling of both of us is that the more information that can sensibly and helpfully be given the better.

Rarely, if on any other occasion, during the passage of the Act did Ministers so expressly distance themselves from current Home Office policy and so clearly align themselves with the chorus of those calling for reform. Similar comments were made in the debates on report in the House of Lords and to Lord Falconer's letter to the Lord Cope of Berkeley on 28 October 1999.

However, we have had sight of the Lord Falconer's letter to the Baroness Williams of Crosby of 18 December 1999. In it the Lord Falconer states:

Evidence of a history of torture should weigh heavily in favour of the grant of temporary admission or release. Evidence of a history of torture would not therefore be one of the factors taken into account when deciding that detention was necessary. Inclusion of this material in the factors taken into account could make the notice unnecessarily complicated.