Andrew Langdon QC adds the Bar’s weight to a chorus of criticism on the intolerable state of immigration detention: no judicial scrutiny; no time limits; and scant access to justice
I would like to devote this column to our treatment of immigrants whom we detain in Immigration Removal Centres (IRCs) and in prison.
There are currently ten IRCs. In case you are imagining something more relaxed, I ought to point out that these are places often encircled by barbed-wire fences where detainees spend periods of time locked-up, and their movement at other times, including access to outside space, is extremely restricted.
Currently about 30,000 immigrants are detained for a period during each year, some for longer than a year. At any one time about 4,000 are held in detention. They are held pursuant to powers conveyed to the Home Secretary, devolved to immigration officers. So the courts do not authorise the decision to detain and this ‘administrative’ detention is not subject, unlike in many other countries in Europe, to any time limit.
It seems pretty clear that detainees are not afforded sufficient access to legal representation. There are many who work for nothing to try to help them. The charity BID (Bail for Immigration Detainees) organises bail applications which are made, I am proud to say, by junior members of the Bar working pro bono. About 75 barristers do this crucial work on a regular basis. In 2015/16 they made 244 bail applications and 130 detainees were released in consequence. A 53% success rate is alarming. It suggests that a large proportion of those detained should not be.
It has also been established that we detain vulnerable people, without the necessity for doing so, in circumstances that are damaging to their mental health. These include victims of torture.
None of this is to underestimate the challenge for those who bear the responsibility of providing for the welfare of those who are detained. Roughly one-third are ex-prisoners who have served their sentences in the UK, and the Home Office faces considerable difficulty in persuading foreign states to accept the return of many whose nationality may be in doubt and who decline to assist in the process.
Even (or perhaps especially) ex-prisoners can be vulnerable. But the remaining two-thirds have done little to attract society’s opprobrium. Many have come here either wanting a better life, or to be with or provide for their family, or because they are fleeing from conditions unimaginable to many of us. They are in effect in detention because they do not (yet) have leave to remain, or their leave to remain has expired.
A year ago, in January 2016, an independent report to the Home Office by Stephen Shaw, the former Prisons and Probation Ombudsman, upon the ‘Welfare in Detention of Vulnerable Persons’ was published. Shaw observed: ‘… it is striking that, despite this growth in the use of detention, the places in which immigration detainees are held are so little known to the public at large, and the policies by which they are run are subject to little informed debate outside a small number of dedicated interest groups and an equally small number of Parliamentarians. I refer in this report to the recent court cases in which the Home Office has been found by the domestic courts to have breached Art 3 of the European Convention on Human Rights (which outlaws torture and inhuman or degrading treatment) in respect of the treatment of individual detainees. It is simply inconceivable that these cases would be so little known if they involved children in care, hospital patients, prisoners, or anyone else equally dependent upon the state.’
In 2015 only 45% of those detained were in the end ‘removed’ from the UK. Shaw called into question the efficacy of the scheme and whether there was any correlation ‘between the size of the detainee population and the number of successful removals of those with no right to remain in the UK’. It is surprising, he said, that there is ‘so little use of alternatives to detention, including electronic monitoring’.
As to the vulnerable, Shaw points to expertise which establishes ‘incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability’. He made 64 recommendations for improvement – including introducing independence into detention decision making and strengthening legal safeguards against excessive length of detention.
His findings were in line with those of HM Chief Inspector who found that the process intended to protect detainees with serious health problems and those who have been trafficked or tortured ‘was not working consistently well at any IRC’.
The government said it would accept the broad thrust of the Shaw Review recommendations, but part of its response, involving a narrower definition of torture, such that those wide of the definition no longer benefit from the presumption against detention, has proved very controversial and is subject to judicial review proceedings.
The Shaw Review concluded that ‘there is too much detention’ and ‘detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK’.
It apparently costs £36,000 a year to hold someone in detention in an IRC. The annual cost of a migrant being monitor electronically is about £5,000. £4m a year has been paid in compensation to those who have been unlawfully detained.
The lack of time limits, the lack of judicial oversight, the failure to protect vulnerable people held against their will by the state; these ought to be matters of concern for society. But given the subject matter, ought they not especially to be of concern for those whose profession involves championing access to justice and the rule of law?
I am inviting the Bar to add its voice to those calling for time limits for all detainees and for independent and robust oversight on the decision to detain. We should shine a light also on persisting failures to identify those vulnerable detainees, including torture victims, for whom detention in IRCs or prison is simply unacceptable in a civilised society.
In the meantime here is the link to BID: www.biduk.org. They could do with some more support.
Contributor Andrew Langdon QC Chairman of the Bar
Original article: https://www.counselmagazine.co.uk/articles/immigration-detention
