I am writing to you in relation to the significant concerns raised by the BBC Panorama programme Undercover: Britain’s Immigration Secrets (link to BBC iPlayer), which aired on 4 September 2017. The programme featured undercover footage of detainee custody officers at Brook House Immigration Removal Centre (IRC), which is managed by G4S. These officers were seen humiliating and abusing immigration detainees, including apparently perpetrating a serious physical assault witnessed, but not reported, by a member of healthcare staff.

As you know, the Equality and Human Rights Commission is Great Britain’s national equality body and has been awarded an ‘A’ status as a National Human Rights Institution by the United Nations. We are an independent statutory body, with the mandate to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote the human rights of everyone in Britain. Under the provisions of the Equality Act 2006, the Commission has a range of powers at its disposal to discharge its statutory responsibilities, from the provision of advice and information (under section 13 of the Act) to taking legal enforcement action (using one or more of the powers contained in sections 20 to 33 of the Act). The Commission has power under section 30 of the Act to institute legal proceedings including by way of judicial review in relation to any of its functions, and need not be a victim of the unlawful act (or failure to act) to which Human Rights Act proceedings relate.

We have a statutory role to advise government on the compatibility of policy and legislation with equality and human rights law, and to encourage compliance with section 6 of the Human Rights Act 1998 (link to legislation.gov.uk) in the exercise of public functions.

When carrying out public functions, public authorities must comply with their non-discrimination obligations under the Equality Act 2010, the Public Sector Equality Duty (PSED), the Human Rights Act 1998, and international human rights treaties, which are binding under international law, including the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT). These obligations cannot be delegated, and it remains the state’s responsibility to ensure compliance with human rights law and the PSED where public functions are outsourced to private contractors.

In light of these obligations, we set out below our concerns in relation to the evidence of abuse aired by Panorama, and advise on the steps we consider are now required to ensure compliance with the investigative duty under Article 3 of the European Convention on Human Rights (ECHR).

The Commission considers that the Panorama footage contains evidence of arguable breaches of the Article 3 rights of immigration detainees. In reaching this conclusion, we consider the following facts are particularly significant:

• the footage shows deliberate acts of humiliation and abuse, including a ‘choking’ incident that appears to amount to an unlawful physical assault
• the people being mistreated are in detention and the perpetrators are state agents charged with their care
• many of the detainees appear to be mentally unwell and vulnerable, and include a child

This gives rise to an investigative obligation which can be discharged in a number of ways. In order to comply with that obligation however the investigation must be prompt, effective, independent, subject to public scrutiny, and enable victims to participate. It appears in this instance that those conditions can only be met by holding an independent inquiry.

To ensure lessons are learnt and action taken to prevent future violations of immigration detainees’ Article 3 rights, the inquiry should be broad enough to take into consideration not only the actions of the officers directly involved in incidents featured in the Panorama programme, but also the surrounding circumstances that enabled these incidents to occur without immediate consequences or sanctions. The abuse – even if confined to a small portion of staff – was seemingly perpetrated openly within the IRC, without being detected and/or addressed by G4S senior management or the Home Office.

There is also evidence that the behaviour caught on camera may be indicative of a wider, systemic problem with human rights compliance at Brook House IRC and IRCs generally. For example, the Commission applied to intervene in the case of R (HA) v Secretary of State for the Home Department (link to EDF website) [2012] EWHC 979 (Admin), in which a court held that treatment of a detainee at Brook House and other IRCs amounted to a breach of Article 3.

The Commission believes this raises concerns about the adequacy of government systems to ensure human rights compliance in the outsourcing of contracts for Home Office functions, where the need to ensure human rights are respected is paramount. We recommend that the terms of reference for the inquiry should be broad enough to enable it to make findings and recommendations that will enhance human rights and equality protections generally in this field of public procurement.

Accordingly, the Commission considers that the inquiry should investigate Home Office outsourcing arrangements for IRC’s, contractual compliance and oversight arrangements, and the efficacy of the regulatory system.

Finally, the Commission notes that the Panorama footage presents stark evidence of the harmful impact of indefinite detention on detainees’ mental health. We repeat our previous calls for the Government to use immigration detention only as a last resort, and to introduce a statutory time limit of 28 days for immigration detention. The UK is the only country in the European Union without a statutory time limit for immigration detention, and continued use of indefinite detention in the UK has been criticised by UN Human Rights Council members (external link: PDF), CERD (link to UN), HRC (link to UN), CAT (link to UN) and the all-party Parliamentary groups on refugees and migration (external link: PDF).

We consider that the inquiry will present an opportunity for the Government to consider the impact of the use of indefinite detention on detainees’ mental health, and the extent to which this may amount to, or may contribute to conditions that amount to inhuman and degrading treatment. The Commission recommends that this question is included within the inquiry’s scope.

In light of the requirement for an Article 3 compliant investigation to be promptly held, we ask you to confirm within 14 days whether the Government will institute such an inquiry, and if not by what means it considers that the investigative duty will be met. Your response will enable the Commission to consider further whether it should exercise any of its statutory powers in relation to this matter. We would welcome the opportunity to meet with officials from your department to provide further advice on both the form and terms of reference for the inquiry to comply with Article 3.

I look forward to hearing from you.

Yours sincerely

Rebecca Hilsenrath