Rule 35

parliament_logo FOI on Rule 35 in first quarter 2015: With thanks to No Deportations

An FOI on the number of Rule 35 reports made by a Medical Practitioner to the Home Office in the first quarter of 2015 has been published. In total, between January and March 2015, 25 reports were made, relating to 24 individuals. A

s a consequence of these reports 12 people were released from detention (50%).

What is Rule 35?

The Detention Centre Rules 2001

Special illnesses and conditions (including torture claims)
35.—(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.

Chapter 55:

55.8A. Rule 35 – Special illnesses and conditions Rule 35 of the Detention Centre Rules 2001 sets out requirements for healthcare staff at removal centres in regards to any detained person:

 whose health is likely to be injuriously affected by continued detention or any conditions of detention;

 suspected of having suicidal intentions; and

 for whom there are concerns that they may have been a victim of torture.

Healthcare staff are required to report such cases to the centre manager and these reports are then passed, via Home Office contact management teams in centres, to the office responsible for managing and/or reviewing the individual’s detention.

The purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case.

Application of Detention Centre Rules:

Preparing and submitting a Rule 35 report due to concerns a detainee may have been the victim of torture (35(3))

20.If the medical practitioner is concerned that a detainee may have been a victim of torture, he/she must always submit a Rule 35 (3) report. Rule 35 places medical practitioners at the centre of the process and fundamentally it is for the medical practitioner to decide if he/she has concerns in a professional capacity that a detainee may have been the victim of torture. The medical practitioner should always state clearly the reasons why he/she has concerns arising from the medical examination – specifically the medical evidence which causes these concerns, including all physical and mental indicators.

21.The medical practitioner has no obligation to report an allegation from a detainee if this allegation does not cause the medical practitioner him/herself to be concerned, in the context of the overall medical examination, that the person may be a victim of torture. However, if an allegation does cause the medical practitioner to be concerned, then he/she should report it. The medical practitioner should set out clearly if his/her concern derives from an allegation with no or limited medical evidence in support.

22.Where there is medical evidence in support of an allegation, the medical practitioner must set out clearly all physical and mental indicators in support of his/her professional concerns. He/she should record any mental or physical health problems that are relevant to the torture allegation.

23.Where possible, the medical practitioner should say why he/she considers that the person‟s account is consistent with the medical evidence. This means that the medical practitioner should ask to see any scars and record what he/she sees, including on a body map and, where possible, assess whether it is in his/her view medically consistent with the attribution claimed by the detainee. The medical practitioner should consider whether the injury, health problem or other indicator may have other possible explanations which do not relate to torture. The medical practitioner must identify any medical evidence which may be contrary to the account given by the detained person.

24.To help decide whether there is cause for concern, it may also be helpful to ask detainees about:  When the torture allegedly took place;  How the injuries/mental health issues arose;  How the torture is currently affecting them.

25.A Rule 35 report is a mechanism for a medical practitioner to refer on concerns, rather than an expert medico-legal report and so there is no need for medical practitioners to apply the terms or methodology set out in the Istanbul Protocol4 . Medical practitioners are not required to apply the Istanbul Protocol or apply probability levels or assess relative likelihoods of different causes but if they have a view, they should express it.

Q. Are all Rule 35 reports about torture?

Because many Rule 35 reports relate to torture concerns (Rule 35(3)), there is a focus on such cases in this instruction. However Rule 35 reports can also relate to the health or suicidal intentions of detainees. All reports must be properly and promptly considered.

The important point is that Rule 35 reports bring to the attention of the IRC and the Home Office information relating to important vulnerabilities that a detainee may have, which will then require the appropriateness of ongoing detention to be given careful consideration.

Apart from torture, the other two possible Rule 35 report types are:

 Rule 35(1) – Health Concerns;

 Rule 35(2) – Suicide Risk Concerns.

AVID: Detention Policy

Detention Centre Rules

The key document governing detention is the Detention Centre Rules (2001). This is a statutory instrument (a form of legislation), which has been passed in Parliament. The Detention Centre Rules apply to IRCs but don’t apply to short term holding facilities.

The Detention Centre Rules set that the purpose of detention is:

“…… provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and the right to individual expression.” 

These Rules also set out what detainees should have access to and the basics around healthcare, access to welfare and privileges, safety and security, etc. You can access the Rules here.

Rule 35

One of the most important Rules to be aware of when supporting detaines is Rule 35. This is the mechanism to make Home Office Caseworkers aware of those detainees whose health is likely to be worsened by their detention (or continued detention), those who have suicidal ideations, or who have been a victim of torture. Rule 35 reports are completed by medical practitioners. While the numbers who are ultimately released through this process is small, it is an important safeguard. You can find out more about the detailed guidance on Rule 35 reports here.

Enforcement Instructions and Guidance (EIG)

This is Home Office policy guidance to all staff dealing with immigration enforcement. The key chapter on detention is Chapter 55. It contains guidance for staff on the power to detain, the decision and authority to detain, and detention procedures. Importantly, it also contains policy guidance on who should not be detained

Detention Operating Standards

The Operating Standards are the standards set out by the Home Office for their contractors, who manage detention centres. The contracts between the Home Office and their contractors are not publicly available, so the Operating Standards are a useful way to find out what kinds of standard provision should be available. They underpin the Detention Centre Rules and were first introduced to try to ensure consistency across detention facilities.

Unfortunately the Operating Standards are very out of date now, having not been revised since 2005. However, they are useful in describing the basic standards that should be available and cover things like access to legal services and living conditions. You can access them here.

Detention Service Orders (DSOs)

The Detention Service Orders are instructions given to Home Office and contractor staff working in detention centres. DSOs are procedural instructions for UKBA staff and private contractors working in the detention estate. There are several DSOs which are updated and revised regularly. They cover a real variety of issues, from Rule 35 and hunger striking, to accomodation standards, access to dentistry or what should happen when a complaint is made. You can find the full list and details here.