Landmark ruling gives immigration abuse inquiry more muscle

Two detainees from African countries, held at Brook House, an immigration detention centre close to the UK’s Gatwick Airport, are at the centre of an important new decision by the UK courts. This decision, delivered last week, will enable an inquiry into horrific abuses of detainees at Brook House to be held in public. Almost more important, it ensures that the inquiry will have the power to compel staff from the centre to give evidence.

Read judgment

The situation at Brook House, a detention centre for immigrants next to Gatwick Airport, has already seen the resignation of the centre’s director, Ben Saunders, in the wake of an investigative documentary report by the BBC showing abuse of detainees.

The report, by the Panorama programme, included secretly filmed footage of the treatment of detainees that the UK’s Immigration Minister later described as appalling. Among others, the programme showed a detainee with mental health issues being ridiculed and physically assaulted. It also showed an officer in a staff room brazenly describing his assault on a detainee to other members of staff and also showed “a collective decision not to record use of force” on detainees.

Among those apparently involved in the Brook House misconduct were managers as well as regular officers and even medical staff.

One of those whom the film showed being abused was “MA”, an Egyptian national who arrived in the UK in 2014 as an unaccompanied child, seeking asylum. That claim was dismissed the following year. He had been given a 16-week sentence in 2016 for pushing a woman into the toilet of a café and kissing her, but the sentence was suspended for 12 months. MA was transferred to Brook House some time after it was discovered that he had problems of mental illness and had a history of self-harm.

A second applicant, “BB” is from Somaliland. He came to the UK aged 10 with his mother and siblings and his other family members now have British citizenship. After a series of offences, BB was given a three-year prison sentence and his refugee status was revoked. When his sentence ended, he was held in immigration detention, at Brook House among others. He too was recorded as having mental health difficulties.

Although Brook House is run by G4S, a specialised security company, there are, in theory at least, a number of checks on the operation, including an on-site office of the government’s immigration enforcement department, regular visits by members of the Independent Monitoring Board and unannounced inspections by the chief inspector of prisons.

Shocking though the scenes of mistreatment at Brook House were, MA says this was just the tip of the iceberg and that he experienced further inhuman and degrading treatment there. According to BB he experienced daily abuse by the officers working there and he too describes his treatment as inhuman, degrading and amounting to torture. Both also alleged racist language and behaviour by the staff.

Immediately after the Panorama programme was aired, G4S suspended 10 staff, and after an official report these and others were dismissed or resigned.

A special investigation was announced last year, to be carried out by the Prisons and Probation Ombud. Although the investigation has the potential to be extremely significant, many of those involved in similar work expressed concern about certain limitations in its terms of reference. It did not have powers to compel witnesses to appear, for example, and did not provide for public hearings.

These concerns led to legal action aimed at ensuring the inquiry would be more transparent and effective, and it is judgment on these issues that has just been delivered.

Justice Juliet May heard argument on behalf of MA and BB, supported by the Equality and Human Rights Commission (EHRC), that the investigation would not be effective unless it had the power, right from the start, to compel the attendance of witnesses and the production of documents, for hearings to be public, and for funding so that MA and BB could be properly represented in order that they could take part effectively.

The Secretary of State for the Home Department (SSHD) on the other hand argued that this would be too time-consuming and expensive.

In her decision, Justice May said she was satisfied that an effective inquiry about the alleged abuse of MA and BB at Brook House “should have power to compel the attendance of witnesses”. She reached this conclusion given the “egregious nature of the breaches, the multiplicity and regularity of the abusive events and the openness of the activity”. These were not isolated incidents of abuse by one person, carried out in secret but were repeated and carried out in front of others. None of the official visits had noticed or recorded anything amiss.

The inquiry would thus have to ask how staff came to abuse detainees openly and regularly without any monitoring body picking up on it. Finding answers to these questions would involve the people who perpetrated or witnessed what was going on. Justice May said there was “very good reason to believe” that the perpetrators and other former G4S staff would not voluntarily attend to give evidence.

She also commented that immigration detainees were “a uniquely vulnerable group of people”, neither convicted and serving a fixed sentence nor detained as punishment. They also did not know for how long they would be confined. Targeted by repeated and “apparently casual abuse” by staff, detainees should now be given the opportunity “to see and confront” their abusers on equal terms.

The evidence of current and former G4S staff was needed to identify “management and systemic issues” and thus ensure such abuses did not happen again.

Justice May also expressed her concern about the “routine and widespread” abuse at Brook House that appeared not to have been remarked on during official visits there. She said public denunciation of those who did wrong and public exoneration of those who did not, could help the “on-site whistleblowing and complaints processes”, and that the inquiry should have the power to decide which of the sessions should be held in public.

The judge asked how the “dignity and humanity”, stripped from detainees, could be restored unless MA and BB, non-lawyers, whose first language was not English, were “enabled through representation to meet their (alleged) abusers on equal terms”. An interpreter, though essential, was not enough and they should both also be provided with funded legal representation.

Justice May’s decision on what will inevitably be a landmark inquiry, has been widely welcomed, with MA’s legal representative, Lewis Kett, commenting that the judgment ensured the detention officers involved could now be held to account.

* "A Matter of Justice" on the Legalbrief site