FOI release

Guidance provided for Home Office caseworkers and Immigration Removal Centre doctors on Rule 35

Published 5 January 2015

The guidance relating to Rule 35 was sent to asylum caseworkers and Immigration Removal Centre doctors in Home Office emails dated 7 August 2013 and 8 August 2013 respectively. These emails were sent following the judgment by Burnett J in the case of an Executive Officer informing caseworkers and doctors that the Home Office was withdrawing the United Nations Convention Against Torture (UNCAT) definition of torture with immediate effect for the purpose of detention policy generally, and Rule 35 policy in particular.

Text of email of 7 August 2013 to asylum caseworkers

“ In January, the Rule 35 instruction was updated in a number of respects. One update was the inclusion of a definition of torture (relying on the definition laid out in the United Nations Convention Against Torture). No definition had previously been published by the Home Office, but we considered this definition to be in line with understanding and practice.

In the recent determination of EO & Ors the court found that this definition was too narrow and not reflective of Home Office practice to date. The court considered the definition applicable to considerations under detention policy to be:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind.”

This is the definition that we will now be applying. Until and unless a formal change to this definition is notified, officers must not apply the UNCAT definition, or any other definition of torture in matters relating to detention policy.

In the EO judgment, the court also made findings relating to the place for credibility considerations in the handling of Rule 35 reports. Credibility may be considered in Rule 35 cases, but it is not a relevant consideration when determining whether a Rule 35 report constitutes independent evidence of torture.

The Rule 35 instruction has been updated to explain these points more fully. All officers involved in detention decisions are asked to review the instruction accordingly.”

Text of email dated 8 August 2013

“Following the judgment in the recent case of R (EO and others) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), with immediate effect, and until further notice, doctors completing reports under Rule 35 (3) of the Detention Centre Rules 2001 (where there are concerns that a detainee may have been a victim of torture) must have regard to the following definition of torture “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third party information or a confession, punishing him for an act he or a third person has committed or intimidating or coercing him or a third person or for any reason based on discrimination of any kind”. In other words, “torture” for the purpose of Rule 35(3) includes, but is not limited to, pain or suffering perpetrated by a public official or person acting in an official capacity.

I would also like to take this opportunity to remind doctors completing reports under Rule 35 (3) that such reports can be issued in the absence of physical evidence of torture, based solely upon concerns the doctor may have following a detainee’s oral disclosure and his/her view of their demeanour. Doctors are not however obliged to issue a report simply because an individual claims to have been tortured, if they have no such concerns.”