The adults at risk in immigration detention policy came into force in September 2016 and was part of the Government’s response to Stephen Shaw’s review of the welfare of vulnerable people in immigration detention. It is based on a case by case assessment of the appropriateness of detention for each individual, depending on the nature and evidence of vulnerability available in their particular case. It involves a balancing of vulnerability considerations against immigration factors (how soon removal is due to take place, public protection concerns, and compliance with immigration law). If an individual is identified as being at risk in the terms of the policy, they will be detained (or their detention continued) only when the immigration factors outweigh the evidence of risk.
As such, the policy strengthens the existing presumption against detention. It does not, however, represent an automatic exclusion from immigration detention for any group of vulnerable, or potentially vulnerable, individuals and the Government has no plans to put in place a framework which fully prohibits the detention of any group of individuals.
Victims of sexual or gender based violence already fall explicitly within the scope of the policy. Individuals who have suffered severe physical or psychological violence are not explicitly referenced, but it is highly likely that such individuals would in any case fall within its scope in that they would meet one of the other indicators of risk set out in the policy (for example, suffering from a mental health condition or impairment, or suffering from a serious physical health condition, or suffering from post traumatic stress disorder, or having been a victim of torture).
Following the High Court judgment on 10 October 2017 in the case of Medical Justice and Others v the Secretary of State for the Home Department, the Government has been considering how it can best address the Court’s findings in relation to the statutory guidance in respect of the adults at risk in immigration detention policy. This includes consideration of the definition of torture that should apply in the policy. On 16 January 2018, Home Office officials wrote to a range of non-governmental organisations, including Medical Justice and Freedom from Torture, to propose a series of meetings in order to elicit their views as part of the process for developing statutory amendments.