Detention Centre Rule 35

Rule 35 of the Detention Centre Rules 2001 provides an important safeguard for vulnerable individuals held in immigration detention (Detention Centre Rule 35). Its purpose is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. In particular, Rule 35(1) requires a medical practitioner to report where a detained person’s health is likely to be injuriously affected by continued detention or by any conditions of detention. Rule 35(2) applies where a medical practitioner suspects that a detained person has suicidal intentions. The information contained in a Rule 35 report must therefore be considered by the Home Office when determining whether continued detention remains appropriate. The current Home Office guidance expressly confirms that Rule 35 reports provide information for consideration under the Adults at Risk in Immigration Detention (“AaR”) policy.

The present circumstances give rise to very serious concerns regarding the detainee’s physical and psychological vulnerability. The detainee’s health is deteriorating day by day. He is experiencing significant weight loss, severe weakness, dizziness, difficulty sleeping, severe anxiety, depression, distress and persistent negative thoughts. He has also reported serious difficulties with eating and sleeping and has described episodes of feeling that he may faint. Of particular concern is his report that he has, at times, experienced thoughts of taking his own life. These matters cannot properly be treated as ordinary complaints arising from the discomfort of detention. They are indicators of significant vulnerability requiring urgent medical and mental-health assessment.

The AaR policy requires the Home Office to identify whether an individual is an adult at risk and, if so, to assess the level of evidence supporting that vulnerability. The policy distinguishes between Level 1 evidence, consisting principally of a self-declaration, Level 2 evidence supported by professional or official evidence, and Level 3 evidence where professional evidence indicates both vulnerability and that detention is likely to cause harm or worsen the person’s condition. Level 3 evidence is to be afforded significant weight (Detention Centre Rule 35).

Importantly, the current detention centre Rule 35 guidance states that a Rule 35(1) report concerning a detained person’s health being likely to be injuriously affected by continued detention or the conditions of detention will normally amount to Level 3 evidence for the purposes of the AaR policy. Accordingly, if the detainee’s medical condition has deteriorated in detention and there is professional evidence that continued detention is likely to exacerbate his condition, the Home Office must give that evidence significant weight when reviewing continued detention.

The courts have repeatedly emphasised the importance of compliance with the Home Office’s own detention policies. In R (IO (Nigeria)) v Secretary of State for the Home Department [2018] EWHC 2940 (Admin), the High Court considered the AaR policy and confirmed that there is a clear presumption that persons identified as being at risk will not be detained. That presumption is not absolute, because detention may remain justified where immigration-control considerations outweigh the evidence of vulnerability. However, the greater the weight of evidence demonstrating that an individual is at risk, the weightier the immigration considerations must be before continued detention can properly be justified.

Similarly, in R (MD) v Secretary of State for the Home Department [2014] EWHC 2249 (Admin), the Court emphasised that the Secretary of State must take reasonable steps to obtain sufficient information concerning a detainee’s mental health to make an informed decision. The Court recognised the particular importance of considering whether a serious mental-health condition can be satisfactorily managed in detention and whether detention itself is adversely affecting the individual’s condition.

The same principle was recognised in AA (Sudan) v Secretary of State for the Home Department [2014] EWHC 2118 (Admin), where the Court confirmed that information contained in a Rule 35 report must be considered when deciding whether continued detention is appropriate and that caseworkers must review detention in light of the information contained in the report.

It is therefore respectfully submitted that the Home Office cannot simply acknowledge the detainee’s medical difficulties and continue detention without undertaking a proper and individualised AaR assessment (Detention Centre Rule 35). The current guidance (Detention Centre Rule 35) expressly requires the responsible caseworker to consider the most up-to-date information concerning the person’s condition whenever detention is being placed or continued. The severity of a condition and the evidence available may change over time, and detention decisions must be reviewed accordingly.

It is also important to recognise that two distinct Home Office functions operate within Immigration Removal Centres: the Detention Services Compliance/Compliance function and the Detention Engagement Team (DET). Information concerning the detainee’s vulnerability, medical deterioration, suicidal thoughts and difficulties coping with detention should be properly communicated to the relevant Home Office decision-maker and not treated merely as an operational or welfare issue within the IRC.

In circumstances where the detainee’s physical and mental health is deteriorating (Detention Centre Rule 35), where there is significant weight loss and serious psychological distress, and particularly where suicidal thoughts have been reported, the evidence strongly calls for an urgent review of continued detention. The Home Office must consider whether the immigration-control considerations relied upon genuinely outweigh the substantial evidence of vulnerability and the risk of further harm caused by continued detention.