Foreign, Commonwealth and Development Office

3. Mr J says that while he was detained by the United Arab Emirates (UAE) authorities from 5 May to 26 November 2018 he was tortured and mistreated. He complains FCDO failed to meet its consular functions by not effectively enforcing its right to see him and it failed to address his mistreatment.

4. Mr J says he was detained for six and a half months in solitary confinement, apart from a short period of bail. He says the overall effect of the conditions he was held in and the extreme psychological pressure he experienced was torture to him. He says he experiences post-traumatic stress disorder (PTSD) and argues that if FCDO got consular access quickly and if it had taken proper and effective steps, his suffering would have been reduced.

5. Mr J wants failings in FCDO's procedures to be found and for it to accept and apologise for these. He would also like financial compensation.

6. Mr J travelled to the UAE in April 2018. On 5 May, he went to Dubai Airport for his return flight and the UAE authorities detained him. He says they held him in solitary confinement in a room with no bed or window. He says FCDO knew about this straight away. He says he was threatened with torture and could hear others being tortured. He says staff forced him to take high doses of drugs and interrogated him for up to 15 hours a day. He says that he signed false confessions as a result.

7. Consular staff first visited on 18 June and again on 30 August. On 21 November, Mr J was convicted and on 26 November, after his request for clemency (mercy), he was released.

8. On 2 May 2019, a representative wrote to FCDO to complain it failed to safeguard Mr J’s welfare by arranging consular access and it failed to take appropriate action against the mistreatment by the UAE authorities. The representative said the UAE had a history of mistreating prisoners and argued that was grounds to demand consular access.

9. On 17 July, a FCDO consular director replied. They quoted Article 5 of the Vienna Convention on Consular Relations (VCCR) and said that while consular functions include ‘protecting in the receiving State the interests of the sending State and of its nationals’ and ‘helping and assisting nationals’, protection and assistance had to stay within limits allowed by international law. The director said Article 55 of VCCR highlighted consular officials had a duty not to interfere in the internal affairs of a State. They said in Mr J’s case FCDO did ask for consular access and improvements in conditions, pressing the case ‘frequently, strongly, consistently and at all levels (including at the highest levels)’.

10. The director said FCDO could only request, not require, visits and had asked for access over 50 times at the official level and 23 times at ministerial level. The director said once FCDO became aware of Mr J’s vulnerability, checking his welfare was its main priority. They said at a court hearing on 30 October Mr J did not say he was being tortured, but he did at meetings with FCDO after he was released. They said he had been unclear about what he wanted FCDO to do.

11. Mr J contributed to a wide-ranging review of FCDO’s consular services. One of the outcomes was there was room for improvement in ‘the recognition, speed and initial handling of such cases across consular teams’.

Mr J’s comments to us

12. Mr J said he accepted FCDO could not 'force' the UAE to allow access but argued it should have enforced its VCCR right and demanded access. Mr J said that rather than the number of requests FCDO made, what mattered was the tone and content of them. He said FCDO had not addressed the policy difficulty in dealing with allegations of torture in circumstances where a detained national may not be able to speak freely. As his representative said in the complaint to FCDO, Mr J told us the UAE had a history of mistreating prisoners. He highlighted that in 2015 FCDO had said, in reply to a Freedom of Information request, that in the last five years there had been 43 cases where UK nationals had made allegations of torture and mistreatment in the UAE justice system.

13. Mr J said that after the 18 June 2018 visit, which lasted only five minutes (according to FCDO records, UAE officials said ‘time was over’ at that point), he continued to be interrogated for eight to 15 hours a day, was in solitary confinement, had panic attacks, and was forced to take medication. Mr J said the second consular visit on 30 August lasted 30 minutes. He said UAE guards or prosecutors told him what to say and were there. He said there were modest improvements after the second visit but he stayed in solitary confinement, faced long interrogations, was put under intense psychological pressure and was forced to take medication.

14. Mr J sent a psychiatric report. The report says the writer saw evidence of moderate depression and trauma symptoms and they diagnosed PTSD.

15. Mr J’s representative told us Mr J was concerned FCDO’s handling was influenced by the political relationship between the UK and the UAE, and the personal relationship between the then FCDO Minister for the Middle East and the UAE. They mentioned hospitality the Minister had received from the UAE and that in December 2019, the former Minister was made honorary chairman of the Emirates Society (a group dedicated to strengthening the UK-UAE relationship).

16. Lastly, they said a lobbying organisation, campaigning for the Inspector General in the Ministry of the Interior of the UAE to be the President of Interpol, mentioned the former Minister as a person to ‘reach out to’ to support such a campaign. Mr J’s representative said the Inspector General in the Ministry of the Interior of the UAE was responsible for Mr J’s mistreatment and this personal relationship should be considered when looking at FCDO’s handling.

FCDO’s comments to us

17. FCDO sent notices under section 11(3) of the Parliamentary Commissioner Act 1967. These notices stop us from including in this report some of the information we have seen. FCDO said it wanted to share as much information as possible to help with our investigation but some of the information, if disclosed, would affect the safety of the State and not be in the public interest.

18. FCDO sent us relevant internal guidance. It said it was ‘written to be used by staff trained to offer consular services and who understand the basic elements…[and] is a subset of wider consular guidance’, meaning extracts might be misleading if read in isolation.

19. FCDO’s consular director accepted it had a right to see Mr J but ‘it does not follow that it would have been appropriate for the UK to have demanded consular access…Careful judgments have to be made as to the most appropriate and effective manner of asserting rights…. I believe that it was reasonable for officials to make a judgement in favour of strong and consistent diplomatic lobbying’. Turning to the mistreatment part of the complaint, FCDO’s director said there is a distinction between ‘(i) responding to concerns or allegations about mistreatment by seeking improvements in the standard of treatment; and (ii) raising allegations about mistreatment with local authorities’.

20. The director said that FCDO policy was that it could not raise complaints or allegations without Mr J’s consent. The director said the ‘policy may appear illogical in circumstances where a detained person feels that they are unable to communicate freely…However, the policy reflects the reality that people may choose not to have allegations of mistreatment or torture raised with the authorities, as they may believe that it could make matters worse’.

21. Turning to the concern about the relationship between the then FCDO Minister and the UAE Inspector General, FCDO said all the Minister's engagement with the UAE about Mr J was in line with the advice of FCDO officials. It said there was an established process by which all official requests on consular cases must be made by Note Verbale (a piece of diplomatic correspondence) through the UAE Ministry of Foreign Affairs. A UK Minister would not call a senior official in a different Ministry in the UAE to raise a case. It said the then Minister had no contact with the UAE Inspector General during Mr J’s detention.

22. FCDO said it did not accept ‘the failure to refer the case to an FCDO Human Rights Adviser (HRA) resulted in a missed opportunity or injustice’. It said that without consent to raise torture and mistreatment allegations, ‘the response to evidence indicating such mistreatment would have been to seek immediate further consular access and to undertake the necessary escalation’, which happened anyway.

23. FCDO also said it did not accept there had been any maladministration (when an organisation does something wrong, does not act properly or gives poor service). It said it had been concerned about the conditions of Mr J’s detention from the beginning and listed the senior staff involved. It cited the section 11(3) notice as evidence of how exceptional the case was. FCDO said its guidance was ‘clear that there are some core requirements if the FCDO is to raise a [torture and mistreatment] case. First, the individual needs to make an allegation and second, they need to provide consent for the British government to raise that allegation’. It said ‘guidance allows for Torture and Mistreatment to be identified and acted on in the absence of an allegation and consent [but in] specific contexts’ such as a lack of mental capacity.

24. FCDO said its HRA was a contractor who could give staff advice, guidance and expertise to help consular officers make appropriate decisions. An important part of the role was to advise consular staff on international human rights standards and when and why it may be appropriate to intervene in a given case. As senior staff were involved from an early stage, FCDO said it was incorrect to suggest Mr J’s case would have been escalated to the HRA. It also said its HRA did not have security clearance to advise on Mr J’s case.

36. We find FCDO’s actions on consular access to be consistent with relevant guidance. We find its actions about whether there was evidence of torture and mistreatment not to be consistent with relevant guidance.

Consular access

37. Our ‘Principles of Good Administration’ say public organisations should act in line with their policy and guidance and make reasonable decisions, based on all relevant considerations. FCDO guidance includes, ‘you must: contact the prisoner (by telephone or in person) within 24 hours. Visit as soon as possible afterwards, preferably within 48 hours’ and ‘You can make representations to the local authorities if…Consular staff are concerned about the length of time it takes to obtain permission to access a British detainee or if they are denied access to a British detainee.’ Under the VCCR, ‘Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention’.

38. FCDO staff contacted UAE officials on the day of the arrest and on 6, 8 and 9 May 2018. On 10 May they sent the first note verbale. Between 10 May and 18 June, FCDO made 14 requests to see Mr J, making it 17 requests in just over a month. It escalated the seniority of the person making the representations (which is what FCDO guidance says staff should do about torture and mistreatment concerns) so that by 25 May its Minister had referred to access in a conversation with a UAE counterpart. We consider this action to be appropriate and done in good time.

39. Mr J said that regardless of the number of requests FCDO made, it should have asserted the right to see him. He said the tone and content of FCDO’s representations were important. Under the VCCR, ‘Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention’. From mid-May FCDO’s representations referred explicitly to the VCCR. FCDO’s representations asserted VCCR rights consistently and promptly because it was concerned about the time it was taking to see Mr J. These actions were consistent with relevant guidance.

40. Turning to escalation, between the first visit and the end of June, access was raised many times, including by the Foreign Secretary on 25 June 2018. In July, the Ambassador, a FCDO Minister and the Deputy Head of Mission raised the case with UAE officials. Requests for access continued through August and September, resulting in the Foreign Secretary requesting access twice in September.

41. We have found the FCDO Minister’s actions to be consistent with the advice officials gave them in briefings. All contact was addressed to the relevant authority and was consistent with FCDO guidance. We have seen nothing to show that FCDO’s handling was influenced by a relationship between its Minister and a UAE official.

Mistreatment allegations

42. FCDO guidance includes that ‘if…you suspect that a person has been mistreated…You should report the allegation immediately to Consular Directorate’ and lists examples of physical and non-physical torture and mistreatment. FCDO guidance sets out action staff can take without consent.

43. When FCDO first saw Mr J in June 2018, staff noted he ‘appeared ok but…his beard and hair appeared unkempt’. These are not signs of torture or mistreatment included in the guidance. The FCDO did not pick up on Mr J’s comment that he ‘had not been physically harmed (intending to convey that I had been placed under severe psychological pressure).’ But staff did note Mr J’s voice was shaking, he avoided eye contact and said he had experienced anxiety attacks. These factors could be signs of fear, an unwillingness to engage and agitation, and these are included in the FCDO guidance as possible signs of torture and mistreatment. Mr J also said he had been ‘questioned at odd hours like 3am or midnight’. FCDO guidance lists sleep deprivation as a possible example of torture.

44. FCDO knew Mr J was in solitary confinement. On 12 July 2018 Mr J’s wife told FCDO he had been in solitary confinement throughout, on 16 July during a meeting with FCDO including its Minister she said Mr J was in solitary confinement, on 30 August Mr J told FCDO he was in solitary confinement, and on 15 October his wife reported this again. FCDO guidance confirms solitary confinement is an example of mistreatment.

45. When FCDO saw Mr J on 30 August 2018, it noted he was experiencing anxiety and panic attacks. Mr J was also not sleeping. In line with FDCO guidelines, these are all possible signs of non-physical torture or mistreatment.

46. As Mr J highlighted, in 2015 FCDO said in the last five years there had been 43 cases of UK nationals making allegations of torture and mistreatment in the UAE justice system (and FCDO told us there were 32 cases between 2016 and 2019). Lastly, when staff saw Mr J, there had been an extended lack of access and there were guards present. FCDO’s review of consular services said it did not ‘seize quickly enough the political sensitivity of these complex cases and escalate accordingly’. In its records made at the time, there is no note of the frequency of UAE torture and mistreatment allegations. We find FCDO did not act in line with its own guidance in light of what it noted at the 18 June and 30 August visits, with what Mr J and his wife told it, and what it knew about the UAE situation. This was maladministration.

Injustice

47. Mr J says if FCDO had got consular access quickly and taken proper and effective steps, his suffering would have been reduced. As noted above, Mr J sent us a psychiatric report that diagnosed post-traumatic stress disorder.

48. Had the maladministration we found not happened, FCDO would normally have escalated Mr J’s case to its HRA for ‘advice, guidance, and support…on international human rights standards’ and ‘when and why it may be appropriate to intervene’. FCDO told us its usual HRA did not have security clearance to advise on Mr J’s case. We do not see that this should stop it from getting human rights advice, and FCDO acknowledged that other legal advisers could help in situations like this.

49. Although the director said FCDO policy was it could not raise complaints or allegations without consent, it has accepted its guidance does allow for torture and mistreatment allegations to be followed up without consent. We find the guidance supports the view that had the staff who saw Mr J identified possible signs of torture and mistreatment, they would have needed to consider intervention. FCDO said what it thought the human rights advice would have been, but FCDO did not seek this advice and its guidance allows for exceptions. As far as capacity to give consent is concerned, we also note FCDO only saw Mr J when those who he says mistreated him were also there.

50. We are unable to say what a specialist trained to focus on human rights would have said, had they been asked to advise on the signs of possible torture and mistreatment. This means we are unable to decide if Mr J’s treatment would have improved. But Mr J would be assured that FCDO had taken specialist advice. This means there is an uncertainty about a lost opportunity and this is an injustice to Mr J.

1. Mr J complains about the support the Foreign, Commonwealth and Development Office (FCDO) gave to him as a British national when he was detained abroad. We find FCDO’s actions on consular access to be consistent with relevant guidance. We find its actions relating to signs of torture and mistreatment not consistent with relevant guidance. This caused Mr J an injustice. We partly uphold the complaint.

2. We recommend: • within a month of our final report FCDO should write to Mr J to apologise for the impact of the failings we found • within a month of our final report FCDO should make a payment of £1,500 to compensate Mr J for how he was affected • within three months of our final report FCDO should say what it will do to make sure its handling of similar circumstances is consistent with relevant guidance.

51. In considering our recommendation, we have referred to our ‘Principles for Remedy’. These say where poor service or maladministration has led to injustice or hardship, the organisation responsible should take steps to put things right and, if possible, return complainants to the position they would have been in if the poor service had not happened. If that is not possible, the organisation should make an appropriate payment to compensate them.

52. To decide on an appropriate level of payment, we review cases where a similar injustice has happened and look at the impact on the affected person. When deciding how severe the injustice is, we look at how long the failures affected the person, what the impact was and if there was any ongoing or long-term impact.

53. We think the events in the complaint have had a lasting impact on Mr J’s life. The uncertainty and doubt caused by the lost opportunity we found is part of the injustice.

54. We recommend that: • within a month of our final report FCDO should write to Mr J to apologise for the impact of the failings we found • within a month of our final report FCDO should make a payment of £1,500 to compensate Mr J for the impact • within three months of our final report FCDO should say what it will do to make sure its handling of similar circumstances is consistent with relevant guidance.