Dr Anna Lindley of the School of Oriental and African Studies is a visiting research academic at CENDEP. She was commissioned by the Bar Council of England and Wales to conduct a research project with legal professionals engaged with the system of immigration detention. She writes about her findings:
‘You are not much of a lawyer if you are not startled by
the State’s power of indefinite detention, or the poor decision-making which
results in many remaining in detention when they plainly should not be.’
The outgoing Chair of the Bar, Andrew Langdon QC, did not
mince his words as he launched the Bar Council’s Briefing on Immigration
Detention in November 2017. He was speaking in Temple Church, a site long
associated with the Magna Carta and the defence of individual rights against
the power of the state, at the heart of legal and constitutional London: a
resonant setting for discussion of the politics and law surrounding detention.
The Bar Council’s briefing draws in part on a three-month
research project it commissioned me to carry out with legal professionals, to
explore their insights into the access to justice of immigration detainees. The
research was primarily based on interviews with 21 barristers, solicitors,
immigration judges and other specialists who witness on a daily basis the
workings of the detention system. What stood out in their accounts was
considerable frustration with the way the government governs and practises
detention. Abundant examples were provided of unlawful detention, poor
administrative practice and problematic features of the legal and policy
processes. The picture that emerged was of a system riddled with injustice. The full report is available here.
Key facts about
detention
The UK has one of the largest immigration detention systems
in Europe. As of September 2017 around 3,455 people were being detained in
largely privately run immigration removal centres and in prisons. Numbers have
increased considerably in the last decade; a recent trend is the accelerating
detention of EU nationals. Officially, people are held to facilitate initial
processing or pending imminent removal. Around 30,000 people spend time in
immigration detention each year, and there is a lot of churn as many are
detained for short periods. However, in September 63% of those detained had
been held for over a month, 364 people for over six months, 88 for more than a
year, and some for multiple years. This is possible because, unlike most other
countries in Europe, the UK has no statutory time limit.
Indefinite and administrative detention is associated with
considerable human suffering: there is abundant evidence that it has a
seriously detrimental effect on health and wellbeing, and numerous instances
have been documented of serious abuse and deaths in detention. Despite several
breaches of the torture and inhuman and degrading treatment prohibition in
Article 3 of the European Convention on Human Rights in UK detention centres and
a barrage of official inquiries and criticism, serious welfare concerns
persist. The Home Office spent £118m of taxpayers’ money on detention ‘goods
and services’ in 2016-17, and in the three financial years to 2015 paid out
nearly £14m in compensation for unlawful detention claims. Just over half the
people currently leaving detention are not in fact removed from the UK, but are
eventually released by the courts or the Home Office into the community. Key
concerns that emerged from interviews, which focused on the rule of law and
access to justice issues, are outlined below.
No time limit, poor oversight, lack of representation
The legal and policy framework for immigration detention is
flawed. There are broad statutory powers to detain people to prevent unauthorised
entry and with a view to removal/deportation. This leaves much to be defined by
administrative guidance and considerable room for discretion on the part of
often quite junior Home Office decision-makers. This seems inappropriate given
immigration detention involves deprivation of people’s physical liberty and on
administrative, not criminal grounds. A more robust statutory framework is
needed to govern immigration detention in the UK.
A prime example is the lack of a time limit. Too often days
slip into months, slip into years of people’s lives. The ‘legitimate aims’ –
initial processing of unauthorised entrants, or those pending imminent removal
– already acknowledge that time matters. But what constitutes a reasonable
period for detention and standards of due diligence is ill-defined within the
current legal and policy framework. Lawyers pointed out that a time limit –
there is a growing campaign for a 28-day maximum – puts the onus on public
authorities to make more careful decisions and act diligently, as seen with
changes in the criminal justice and mental health systems.
Lawyers’ accounts suggest poor standards of public
administration have been normalised. They found that evidence of imminence of
removal, risk of absconding and public harm is often poorly reasoned or
evidenced; decision-makers often fail to act diligently and expeditiously;
mistakes are made with serious consequences for the individuals involved and
their families.
There is currently no prompt or automatic judicial oversight
and ability to challenge detention is limited. The most prompt and accessible
mechanism to obtain release is by making an application for bail. This is a
summary process, experienced as a lottery by many lawyers and detainees.
Interviewees reported that Home Office representation in the bail process
regularly includes errors and misleading assertions (as one judge put it,
‘elliptical nonsense’) and generally standards of evidence in bail hearings are
very limited.
Meanwhile, judicial review cases have generated a body of
common law that checks some excesses of the system, and the process has allowed
some particularly problematic aspects of detention policy to be challenged. But
it remains vague on key issues like reasonable length of detention. Moreover,
many detainees struggle to access legal aid or a lawyer to launch a viable
claim. Most interviewees thought there are more instances of unlawful detention
than reach the courts.
In this context, it is also important to note that many people
experience difficulties accessing legal aid for immigration matters, prior to
and during detention, making it even harder to challenge immigration and
detention decisions.
The Windrush scandal has drawn public attention to the
problems of accessing to legal aid for immigration matters, and how the Home
Office deploys detention and removal. While the treatment of the Windrush
generation has been met with public outrage, it is important to note that everyone
in detention is caught in a system that has been aptly labelled Kafkaesque.[1]
This is an edited version of an article first published in COUNSEL
magazine: https://www.counselmagazine.co.uk/articles/immigration-detention-the-bar-speaks-out
[1] du Preez, Ben
'Indefinite Detention? We Are in the World of Kafka,' (London: Detention
Action, 2015)
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