The below Parliamentary question was asked by Kate Osamor on 2016-09-13.
To ask the Secretary of State for the Home Department, what assessment she has made of whether there are contradictions in applying the Article 1 definition of torture alongside implementing Shaw Recommendation 9, the presumption against the detention for victims of rape and other sexual or gender based violence, including female genital mutilation, for which the identity of the perpetrator is irrelevant.
Mr Robert Goodwill
For the purposes of the Government’s “adults at risk in immigration detention” policy, which was implemented on 12 September, the Government has adopted a definition of torture in line with that set out in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). This covers acts of torture carried out by, or on behalf of state authorities and, in guidance issued to Home Office staff, to doctors working in immigration removal centres, and to other staff, it has been made clear that the definition also covers acts of torture or ill-treatment carried out by groups exploiting instability and civil war to hold territory. It does not, however, cover acts of violence carried out in the course of, for example, neighbourhood disputes. The definition employed most accurately reflects the need to protect those who are most likely to be deleteriously affected by detention – that is, those who have been harmed by the state (or by an organisation exercising similar control) and for whom detention is most likely to be redolent of the harm they have suffered. In addition, individuals will fall within the scope of the adults at risk policy if the harm to which they have been subjected causes them to suffer from a condition which also falls within the “indicators of risk” set out in the policy, regardless of whether it falls within the strict definition of “torture” and regardless of the perpetrator of the violence. The policy recognises a broad range of groups of individuals as those likely to be particularly vulnerable to harm in detention without necessarily having to define them as victims of torture.
In making the decision to employ the UNCAT definition of torture, the Government took into account a range of considerations, including the United Nations High Commissioner for Refugees guidelines, but concluded that the UNCAT definition provided the appropriate level of protection. The Government believes that this approach is fully in line with Stephen Shaw’s recommendations in respect of vulnerable people. The adults at risk policy as a whole represents a broadening of the scope of individuals considered vulnerable, by virtue of the inclusion within the list of indicators of risk set out in the policy of, for example, victims of sexual or gender based violence (including female genital mutilation), transsexual individuals, and those suffering from post traumatic stress disorder. Overall, the impact of the adoption of the UNCAT definition on different groups of vulnerable individuals will depend on the circumstances of the particular case. The Government does not anticipate that it will have a disproportionate impact on any specific group. In particular, the Government does not see that there are contradictions in applying the new definition of torture alongside the inclusion in the policy, as an indicator of risk, being a victim of sexual or gender based violence. Although the perpetrator of the violence is, by necessity, a key part of the definition of torture, the adults at risk policy focuses as a whole on the impact on the individual and on whether detention is appropriate in their particular case. Home Office caseworkers have been provided with training and communications on the new adults at risk policy, including in respect of the definition of torture. Guidance on the adults at risk policy has been issued, including to the commissioners of healthcare in Immigration Removal Centres.