On 12 January 2023, the Home Office published the Independent Chief Inspector of Borders and Immigration’s (ICIBI) report on the third annual inspection of the ‘Adults at risk in immigration’ (AAR) policy.  The report paints a damning picture of how the policy is operating in practice across the board, describing it as ‘ineffective’ and leaving victims of trafficking without support and languishing in detention. 

Rule 35

The report focuses specifically on the effectiveness of Rule 35 of the Detention Centre Rules 2001, which enables medical practitioners in immigration removal centres to identify vulnerable detainees, including whether they are a victim of trafficking and modern slavery, and accordingly whether their detention should be reviewed. This process is designed to have a safeguarding function, and yet the report found that there were serious concerns around how this rule was being applied in practice. 

Flawed from the start

While previous Home Office policy stated that victims of trafficking (among other vulnerable groups) were only suitable for detention in exceptional circumstances, in 2021 survivors of trafficking were brought entirely under the scope of the AAR policy, which requires them to show evidence of the harm that detention is causing them before they are released. This has resulted in many individuals being kept in detention despite the impact on their wellbeing, and without a conducive environment for disclosing such evidence in the first instance. As healthcare stakeholders reported to inspectors, ‘expecting detainees to disclose issues of torture or modern slavery in the initial healthcare screening was inappropriate and unrealistic.’ as ‘full disclosure of trauma requires a relationship and rapport to be built up over time’.  

Failures to identify survivors 

The failings outlined in the ICIBI’s report show how inadequate training, resourcing and translation services, amongst a litany of other concerns, are undermining the ability to identify and support survivors of trafficking. Moreover, driving  these failings is a misguided premise that individuals are misusing the Rule 35 system. The ICIBI highlighted that this perception was not supported by evidence and that ‘the enthusiasm to protect vulnerable people in immigration detention was held back by a narrative that placed preventing the possibility of ‘abuse of the system’ ahead of protecting the vulnerable’.

The findings in the report highlight serious issues regarding the identification of survivors of modern slavery and human trafficking, an issue that the Detention Taskforce has previously highlighted. Despite a requirement to ask questions about modern slavery and human trafficking when they first enter detention, the report notes that some detainees were not asked about this at all, and that for a number, although they were asked, no explanation of these technical concepts was provided, meaning that they did not understand the questions and could not reasonably be expected to disclose.

Regarding issues with translation, the ICIBI reports that there ‘were occasions when interpreters were not available or they were not offered during the initial screening process.’ There are worrying examples of a detainee being  asked translate for other arrivals during their initial health screening though he did not understand some words he was asked to translate and a detainee who didn’t understand English  not being provided with information in his own language, as well as some translated versions of reception and induction documents being inaccurate, having been created through Google Translate.

Where such failures in even accessing information on the Rule 35 process exists, it is hardly surprising that detainees are only provided with the necessary information by their legal representatives and fellow detainees. Rather than a sign of abuse of the system, this is a symptom of a policy that is failing survivors of trafficking .

Failures to refer survivors

The report also raises concerns that even where detainees made disclosures about their trafficking during Rule 35 assessments, the Home Office had not referred these individuals into the National Referral Mechanism (NRM). In a review of 50 cases, indicators of trafficking were identified in 20 reports but NRM referrals had not been made in 17 of these cases. The NRM acts as the primary means to ensure that victims and survivors of trafficking and modern slavery receive the appropriate support, and a failure to make such referrals points to a glaring safeguarding failure. Serious confusion over responsibility in making a referral is ‘leading to concerns some individuals may fall through the gaps’ and creating bottlenecks in the referral process. In response to the report’s recommendations, the Home Office has said it will circulate an updated operating procedure clarifying responsibilities relating to modern slavery and trafficking reports within the Rule 35 system.

Evading scrutiny and accountability

The same day that the report was published, the Home Secretary announced that the Government would be discontinuing the ICIBI annual reviews on the effectiveness of the Home Office’s practices and policies towards adults at risk in immigration detention. Such actions are demonstrative of a wider Home Office attempt to shut down and evade scrutiny. Meaningful consultation with the anti-trafficking sector is increasingly restricted by the Home Office, the Government continues to leave the Independent Anti-Slavery Commissioner post vacant and officials continue to make unsubstantiated and misleading claims which only serve to further demonise survivors of trafficking. In this environment, protections and support for victims and survivors of trafficking and modern slavery offences are increasingly at risk from a Government intent on scrapping the existing system.

Ending immigration detention

The use of detention under immigration powers remains wholly unacceptable, with this ICIBI report merely adding to the wealth of existing information on the failures of the AAR policy and its detrimental impact on detainees. As opposed to a safeguarding function, the AAR policy is resulting in survivors of trafficking remaining in detention despite their vulnerability. Survivors’ experiences of the trauma of trafficking are being compounded by their experiences of detention, which is having a serious impact on their health and wellbeing. The Detention Taskforce maintains that vulnerable individuals should never be detained on the basis of their immigration status. Immigration detention will never be an appropriate environment for the disclosure of information about experiences of harms such as trafficking, and as we are reminded through the ICIBI’s report, the AAR policy fails to provide adequate safeguards to mitigate these harms.

For a fuller list of the Detention Taskforce’s recommendations, please see our joint statement.