COMMENT: Handling of complaints by immigration detainees needs urgent overhaul

Yarl’s Wood Immigration Removal Centre

Handling of complaints by immigration detainees needs urgent overhaul, according to Medical Justice and Lord Ramsbotham, writes Margaret Doyle. 

On 24 November 2014, Lord Ramsbotham wrote to the Home Secretary urging her to initiate an urgent review of the handling and investigation of complaints made by immigration detainees. His letter followed a conference at the House of Commons on 30 October 2014 presenting Medical Justice’s report ‘Biased and Unjust – the Immigration Detention Complaints Process’ (which the Home Office declined to attend).

Approximately 30,000 people are detained each year under immigration powers, including those in police cells, prisons and immigration removal centres. Many have suffered torture or ill treatment, have significant and chronic health problems, or have been detained for prolonged periods without any prospect of removal. Medical Justice says that “the need for an effective complaints process in immigration removal centres (IRCs) is clear: there have been documented cases of ‘inhuman and degrading treatment’ and sexual abuse by staff.  Medical mistreatment is rife, neglect has contributed to detainee deaths.”

The report, resulting from a project started in 2011 by Medical Justice to provide assistance to detainees in immigration removal centres, is based on a small number of complaints (31 complaints from 28 detainees). It follows the final report of the now disbanded Complaints Audit Committee, which oversaw the complaints process in detention and prison until it was abolished in 2008. In that report, the Committee presented what Medical Justice describes as a ‘scathing and disturbing indictment of the way complaints were handled: unacceptable delays, superficial and biased investigations, with 83% of investigations considered inadequate”.

Concerns about current oversight

The background to the oversight of detainees’ complaints is illustrative of the push-and-pull of oversight bodies linked with the Home Office. In 2008, when the independent Complaints Audit Committee was abolished, responsibility for investigating the handling of detainees’ complaints was passed to the Independent Chief Inspector of Borders and Immigration (a post currently held by John Vine CBE QPM, who is retiring at the end of this month). Complaints handling overall is within the remit of the Independent Chief Inspector, although the remit does not permit her/him to consider individual cases. Medical Justice says that since the transfer, “there has been no systematic overview of complaints to identify trends or to ensure lessons are learnt. This is of great concern, not least because the Home Office detains more people each year and fewer detainees have legal representation.”

Concern has been expressed that the Home Office has refused to publish reports of the Independent Chief Inspector. Among the critics is Keith Vaz MP, chair of the Home Affairs Select Committee, who noted that “When Mr Vine last appeared before the committee we were very concerned about the number of reports that he had produced which had not been published by the Home Office. All of these must be released immediately.”.

Organisations and lawyers involved in these complaints have become concerned about the way in which they are handled by the Home Office and the private contractors including G4S and Serco. The findings by Medical Justice in “Unjust and Biased” support practitioners’ concerns. Among the problems are delays, failure to disclose information, and failure to record injuries and complaints. The report notes that following the cuts in legal aid an increasing number of detainees are unrepresented, and in such a context there is an even greater need for a complaints system that is transparent, effective and of high quality.

One major concern is that a common theme in reports by her Majesty’s Inspector of Prisons and Independent Monitoring Boards is repetition of earlier recommendations that have not been implemented. The report states that overall there is a failure to reform practices where there is evidence of systemic malpractice.

The role of the ombudsmen

Two bodies involved in considering individual complaints are the Parliamentary and Health Service Ombudsman (PHSO) and the Prisons and Probation Ombudsman (PPO); both present obstacles for detainees in particular.

The PPO cannot consider complaints on a matter on which the detainee has lodged a civil claim; this includes discrimination cases. This bar means that detainees have to choose between making a complaint about maladministration to the ombudsman and pursuing a claim under the Equality Act 2010. Medical Justice argues that this in effect removes a remedy from the complainant, because civil action is not a substitute for the complaints process as it doesn’t result in any action being taken against officers or in lessons being learned.

With health care complaints, a particular problem has been that these go to the Parliamentary side of the PHSO, and therefore they must go to the ombudsman via an MP. For detainees this can be a huge obstacle because they often have no link to a Parliamentary constituency. Indeed, “[s]ome will have been picked up at the airport and have no MP”.

Responsibility for commissioning health care for detainees has now transferred from the UK Border Agency of the Home Office to the Department of Health, and therefore in future detainees’ health care complaints will be dealt with under the NHS complaints procedure, for which there is no ‘MP filter’ for access to the PHSO.

In spite of that improvement, ongoing issues are the time taken for ombudsman investigations (up to 2 years, by which time many detainees will have been deported) and the fact that the PHSO doesn’t record whether complaints are from detainees but are included with all complaints against UKBA or the Border Force – the equivalent, Medical Justice says, of recording all NHS complaints as against the Department of Health and therefore limiting accountability and transparency.

Recommendations for change

Medical Justice cites various impacts of poor complaints handling in this area:

• “Lack of transparency and scrutiny allows some abuses to continue unchallenged
• Failure to learn or improve services
• Additional costs are incurred by unnecessary appeals to the Ombudsmen and even compensation for unlawful detention.”

The report considers how the handling of detainees’ complaints met the principles for good complaint handling produced by the PHSO. These six principles are:

• Getting it right
• Being complainant focused
• Being open and accountable
• Acting fairly and proportionately
• Putting things right
• Seeking continuous improvement

Among the recommendations are that the Home Office should:

• be more proactive in monitoring complaint handling by their contractors;
• publish quality reviews of the standard of responses provided to detainees;
• consider an appeal stage before invoking an appeal to the ombudsmen;
• publish report on complaints and their outcomes, including the learning from complaints.

In addition, the report makes a number of recommendations about reform of the procedures, improving transparency, strengthening the role of Independent Monitoring Boards, and the provision of advocacy for detainees.

Regarding the ombudsmen, the report recommends that the terms of reference of the PPO should be changed to enable an investigation of a complaint to continue even if a civil claim has been lodged, and that both the PPO and the PHSO should:

• prioritise complaints from detainees and speed up the investigations and
• record complaints as to the provider/contractor and the immigration removal centre against which the complaint is made.