A Second Torture: The UK’s Fast Track to Despair by Josie Le Blond
To mark the Refugee Week 2015 we are publishing a series of excellent articles by students taking an MA in International Journalism at City University. We are very grateful to students for sharing their work and to Professor John Owen for inspiring and guiding them to take up the challenge of telling refugee and migrants’ stories at the highest professional standards.
Josie Le Blond is a British freelance journalist based in Berlin. Her work has appeared in The Guardian, The Telegraph, Spiegel International, Global Post, The Globe and Mail, USA Today and Deutsche Welle.
A second torture: the UK’s fast track to despair
Lizzie* bears scars. At home in East Africa she was viciously attacked by homophobic thugs. Seeking refuge in Britain, she was unlawfully detained for months under a flawed system which failed her at every step. Her story is one of potentially thousands unheard as campaigners step up their fight to shut down arbitrary detention of torture survivors under the Detained Fast Track.
“It’s mental torture,” said Lizzie, an East African lesbian in her mid-20s, speaking on the condition of anonymity. “You leave detention with nightmares. It’s a place that damages people.”
Campaigners say stories like Lizzie’s challenge the overall legality of the UK’s Detained Fast Track (DFT), which keeps asylum seekers in high security detention centres while the Home Office decides their fate. Never intended for torture survivors, critics say the DFT has ballooned into an unfair yet convenient catch-all which results in the removal of 99 percent of those it processes.
“DFT is a fundamentally flawed process that can’t be remedied,” said Jed Pennington, human rights solicitor at Bhatt Murphy, a law firm specialising in civil liberties. “But for the Home Office it’s quite successful. It results in high numbers of removals.”
Conceived in 2000, the DFT was designed as a short term solution to tackle unprecedented numbers of asylum claims. Asylum seekers with simple cases from a limited list of countries were to be held for a maximum of ten days while a decision was made.
“The European Court of Human Rights said [DFT] was acceptable on the basis that the government had processes in place to ensure that people who ought not to be in there didn’t go in, or if they did they would come out,” explained Sonal Ghelani, supervising solicitor at the Migrants Law Project.
Yet over the next decade, mission creep set in. Soon any case from any country was allowed onto the DFT as long as the Home Office said a fast decision could be made. The rules still stated that vulnerable people – torture and trafficking survivors and those with mental health issues – should be spared detention.
In practice, critics say the system’s screening and safeguards are unfit for purpose, leading to untold numbers of vulnerable people being arbitrarily, indefinitely detained and eventually removed without a fair chance to put their case.
As the criteria for DFT expanded, the net drawing Britain’s undocumented migrants into detention grew ever tighter. In London, plain clothes immigration officers now routinely patrol train stations, raid shops and hand out leaflets encouraging people to denounce others.
Lizzie lived on false papers in the UK for over two years. Still suffering the aftermath of a life-threatening homophobic attack, she had been visiting London when she was forced to come out to her family. Her mother promptly disowned her, leaving her homeless and at the mercy of strangers. She was just 18.
“For us immigrants it feels like the Nazi times, you have to find someone to hide you,” she said. “It’s a trap. If someone’s undocumented and makes one mistake or goes to the authorities for help, they’ll get them.”
“You see these almost Gestapo-like tactics,” agreed Shaukat Khan, chair of the Walthamstow Migrant Action Group. “We’ve seen many people informing on others. The tools of the government are everywhere.”
Lizzie’s luck eventually ran out. She fell into the DFT when she appealed for help. Having run out of sofas to crash on, friends told her to go to a refugee council, who sent her to the asylum screening unit in Croydon. Without legal advice, Lizzie was woefully underprepared for what was about to happen.
“I didn’t know what I was going into. I thought these were people to help, not to put you through hell,” she said. At her screening interview, an immigration officer asked Lizzie to describe briefly why she couldn’t go home. She said she was gay and had been abandoned by her family. She was told her case had been put on the DFT.
As a torture survivor later found to be suffering from Post Traumatic Stress Disorder, Lizzie should never have been detained. Home Office rules explicitly exclude vulnerable claimants from DFT. But the screening process nearly always fails to weed out these people.
“[The] screening process doesn’t do the job because there’s no way of properly working out if somebody’s case is too complicated for DFT or whether they might be vulnerable,” said Ghelani.
“Poor quality decision making at the point where people are admitted to the DFT is a major cause [of unfairness],” agreed Daniel Carey, associate solicitor at civil rights firm Deighton Pierce Glynn. “If there is potential merit in the asylum claim then DFT should not be used.”
That night Lizzie was driven in a prison van to Yarl’s Wood, a high security Immigration Removal Centre. Arriving in the dead of night, she was searched and sent to see a nurse. Exhausted, confused and terrified, Lizzie made her second vital error, the repercussions of which led her to the brink of deportation.
“I made a mistake. There was a question: have you ever been a victim of torture? I said no. When they gave me my [asylum] refusal that was in it,” she said.
Lizzie could not know the significance of her answer, or that her attack would constitute torture under British law. Had she answered yes, this would have triggered a review of her detention under Rule 35 of the Home Office Detention Centre Rules, a safeguard intended to weed out torture victims from the system.
British case law defines torture for purposes of Rule 35 as: “Any act by which severe pain or suffering, whether physical or mental, intentionally inflicted on a person … for any reason based upon discrimination of any kind.”
Rule 35 refers detained torture victims to a detention centre doctor to prepare a medico-legal report, including a body map – a physical sketch outlining a victim’s torture scars. This key evidence can lead to a caseworker or judge ordering they be released from detention. Yet even when this mechanism is activated, critics say the system is weighted against release.
“I don’t think the doctors have proper training. Often they get a one-sided view of the law which is about removing people,” said Pennington. “We’ve seen doctors not send the reports for victims of domestic violence for instance because they’ve said it’s not torture.”
Charmian Goldwyn is an independent GP who has visited hundreds of detainees for Medical Justice, a campaign group working for the release of torture survivors from detention. She said medics face pressure not to write anything that would contribute to a detainee’s release.
“Doctors are really hampered. A lot of them are brought in as locums and they don’t even know about Rule 35.” said Goldwyn. “Others are worried they’re going to have to stand up in court and justify what they’ve said and they feel they can’t do it properly. So they tend to scrimp on it.”
Tribunal judges often dismiss evidence of torture given by doctors and imply they have fallen for asylum seekers’ lies. Goldwyn said mistrust of asylum seekers conspired against detained torture victims and those who wanted to help secure their release.
“There’s a culture of disbelief towards the claimants among the caseworkers, doctors and staff,” said Goldwyn. “Some of them tell me: ‘this man’s a terrible liar, don’t listen to what he says’.”
Lizzie spent three months being disbelieved in detention before even hearing the words ‘body map’ or ‘Rule 35’. But her own suspicion of the system also played against her. Lizzie’s fellow detainees told her not to trust the lawyer automatically allocated by the Home Office and recommended a private one, whom she says was a charlatan. “My lawyer was a thief. No one told me I needed witnesses or evidence, it was my lawyer’s job but he didn’t help me,” she said.
The lawyer failed to show up for Lizzie’s key substantive interview, leaving her to represent herself. She told the home office representative about her attack, who showed no interest in seeing her scars. At three appeal hearings she tried again to get judges to look at her scars – but was told it was inappropriate.
Then the deportation ticket came. Without the vital body map evidence she needed and no one to tell her how to get it, Lizzie had reached the end of the road. By this time, the press in her home country was baying for her blood. “There was an article outing me which asked if anyone knows where I was. My face was there on it. I was so visible,” she said. Lizzie feared she was days away from being sent back into the arms of a violent homophobic mob.
It wasn’t until she broke down and begged her case worker for help that someone finally let slip there might be a way out of her nightmare slide back to East Africa. “That was the first time I heard the words body map, after months telling people about my scars,” she said. “It was the only thing that helped me cancel the ticket, just that little piece of paper.”
But Lizzie’s rogue lawyer took her fate down to the wire. She was sitting on the runway before he sought an injunction to stop the deportation. “I knew this was my last chance,” said Lizzie. “Then the phone rang. They told me: today’s your lucky day. Then they took me back to detention and left me there.”
On the basis of a quick body map sketch done by a detention nurse, a judge ruled Lizzie could not be deported until she had been given a proper medical examination. Months passed, but her luck finally changed when she was referred to Medical Justice, who demanded she be given a Rule 35 and referred her to a new doctor, Goldwyn, and a new lawyer, Ghelani.
“We got her out by working hard to file an urgent claim for judicial review in which we asserted that she was being unlawfully detained,” said Ghelani. Within weeks, after ten months in detention, a judge released Lizzie to pursue her asylum claim in the community.
Campaigners say Lizzie’s experience of how the DFT system can indiscriminately detain vulnerable torture victims and deny many a fair hearing is not an isolated case. Yet change is in the air. This summer, a British High Court judge quietly ruled that “serious flaws” in the DFT meant the process carried an “unacceptably high risk of unfairness.”
“We were initially very pleased with the judgement but grew disappointed when the court of appeal upheld the part allowing the DFT to continue with fairly small changes,” said Jerome Phelps, head of Detention Action, the lobbying group behind the litigation.
One change is that lawyers now have more time with DFT clients ahead of their Home Office interview. For a lucky few, this means access to an obscure loophole: a concession which releases torture survivors if they are accepted onto the books of NGOs Helen Bamber or Freedom From Torture before a decision is made on their asylum claim.
“In the past there was very rarely enough time for this,” said Phelps. “However relying on this concession makes no sense in terms of having a logical process. The solution should be to have effective safeguards within detention so it’s not a lottery who accesses it in time.”
Yet even this tiny loophole may be closing. Goldwyn said overstrained resources have led Medical Justice, Freedom from Torture and Helen Bamber to shut their books for now. Without the help of these organisations, it is difficult to see how torture victims lumped into Detained Fast Track would escape detention, or access a fair hearing before deportation.
Meanwhile, the EU and the UN have British detention practices in their sights. Earlier this year, the United Nations High Commissioner for Refugees (UNHCR) launched a global strategy which identified the UK as one of nine countries worldwide lacking procedures “to assess and review the necessity, reasonableness and proportionality of detention.”
“The European Commission is also concerned about DFT but I think they recognise with the [hostile] rhetoric surrounding the upcoming UK election is difficult time to involve themselves,” said Pennington.
In a statement, the Home Office insisted: “Detention is used as a last resort when people are found not to have a right to be in the UK and will not leave voluntarily, or when there is a serious risk they will abscond from bail.”
But with international and domestic pressure building, Phelps is hopeful the UK government will soon be forced to engage with widespread concerns.
“It feels like the country is suddenly waking up to some of the injustices that take place in detention,” said Phelps. “We hope that in the long term the High Court ruling and subsequent pressure could build political momentum for bigger change. These are interesting times.”
Lizzie asked to remain anonymous due to the current precarious nature of her refugee status in the UK. Her real name, country of origin and exact age have therefore been omitted, along with details of her attack which could identify her.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of The Forum. For re-publishing and other inquires please contact Josie Le Blond via Twitter @josieleblond