By Sile Reynolds
The Shaw Review, published last week, could turn out to be a Trojan horse.
The report by former prisons ombudsman Stephen Shaw is a detailed investigation into the welfare of vulnerable persons, including torture survivors, in detention in the UK.
The temptation to leap in the air declaring vindication was too great. There was so much to welcome in Shaw's report. Even Home Office minister James Brokenshire's seemingly magnanimous response gave cause for hope that a dysfunctional and harmful system might be on the cusp of fundamental change.
Shaw makes it clear that the government ought to detain fewer people for immigration purposes. Among his 64 wide-reaching recommendations, Shaw calls on the government to ban the detention of pregnant women and establish a presumption against the detention of victims of rape and sexual violence, victims of FGM, people with learning difficulties, those with Post Traumatic Stress Disorder and transgender people.
Freedom from Torture joined partners across the sector in welcoming these recommendations and the immigration minister's commitment to introduce a new concept of 'adult at risk' with a presumption against detention for those falling into that category.
Freedom from Torture's evidence and recommendations concerning health assessments, screening and the management of people with mental health conditions clearly informed Shaw's understanding of the fundamental failure of healthcare within detention. He described the treatment received by people with serious mental health conditions in detention as "an affront to civilised values".
Rule 35 should be implemented, not replaced
Much has been made of Shaw's recommendation to replace the Rule 35 safeguard with something more robust. Rule 35 is supposed to prevent the continued detention of torture survivors and other vulnerable individuals. These reports highlight any concerns the doctor has that detention is likely to be harmful, and should trigger an immediate review of the decision to detain.
Freedom from Torture has been highly critical of the implementation of Rule 35, mainly because the doctors' reports are subjected by the Home Office to a standard of proof that is radically out of kilter with what the rule requires. We have mountains of evidence of the Home Office refusing to release torture survivors in the face of clearly indicated injuries.
Shaw recognises that Rule 35 is failing to provide protection to vulnerable detainees and recommends that it be replaced with a system involving forensic medical examiners, university pathology doctors and specialist clinicians from NGOs, which could include Freedom from Torture. On the face of it, this appears to address our concerns about the lack of support for GPs tasked to complete these reports in difficult circumstances.
However, heightening the level of expertise and qualification required to flag up a concern that someone may have suffered torture will almost certainly raise the evidential threshold, with the practical consequence that survivors may wrongfully remain in detention. This would be a perverse result of a reform proposed by Shaw to improve protection for torture survivors in the UK asylum system.
The Home Office has long sought to raise the bar when it comes to proving torture in an asylum claim. We see this daily in the mishandling of our independent expert forensic medical reports, leading to harrowing appeals for survivors and unnecessary public expense.
Freedom from Torture has been working with forensic medical experts, lawyers and survivors themselves to call out this trend and demand its reversal. A risk of further fuelling this 'evidential arms race' seems to seep from the spaces between Shaw's apparently well-meaning recommendations.
We know that the Home Office has plans to reintroduce the accelerated detained asylum procedure that was declared unlawful in July 2015 – and is considering how it will deal with vulnerability in the new model, including through Rule 35. So the question of how vulnerable people will be protected will once again come to the fore. We must fiercely resist any regressive reform of Rule 35 or attempts to remove another safeguard enabling independent organisations such as Freedom from Torture to secure speedy release of suspected torture survivors.
Shaw's stark findings oblige the Home Office to act to increase protection for torture survivors, but his recommendation goes too far. Rule 35 does not need replacement, it just needs proper implementation. When a doctor expresses concern that someone may be a torture survivor, release should follow in all but the most exceptional cases. James Brokenshire now has the opportunity to succeed where others have failed by cracking down on systematic thwarting by the Home Office itself of this vital safeguard.
Sile Reynolds is the Lead Asylum Policy Advisor at Freedom from Torture and leads advocacy aimed at improving legal and policy protections for torture survivors as asylum applicants and refugees in the UK.
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