Month: September 2015

3 September 2015

As part of #UnlocktheDebate, the Detention Forum members will be sharing their views ahead of the parliamentary debate on the detention inquiry recommendations on 10th Sep 2015.

In this piece, Jerome Phelps of Detention Action examines the Government’s repeated claim that ‘there is no such thing as indefinite detention and hence there is no need for a time limit on immigration detention’.   Introducing a 28-day time limit on immigration detention was one of the key recommendations of the detention inquiry report.

Tweet your feedback to us (@DetentionForum) or with a hashtag, #UnlockTheDebate.  Detention Action tweets at @DetentionAction

========================================================================

Next week, the UK’s practice of indefinite immigration detention will come under renewed scrutiny, as Parliament debates the report of the cross-party parliamentary inquiry. The inquiry concluded that a time limit of 28 days should be introduced. The government is likely to respond that a time limit is unnecessary, and that the UK does not practice indefinite detention.

The UK is unique in Europe in detaining migrants without time limit, often for periods of years, with no indication of when they will be released. Yet the government refuses to accept that this amounts to indefinite detention.

When called on as part of the United Nations Universal Periodic Review process to take steps to avoid cases of indefinite detention, the UK felt able to partially accept the recommendation, on the basis that indefinite detention doesn’t happen anyway:

‘Although there is no fixed time limit on immigration detention under UK law or policy it operates in line with the established principle that it must not be unduly prolonged and must last for no longer than is reasonably necessary for the purpose for which it was authorised.’

This ‘established principle’ refers to the common law principles known as Hardial Singh. These principles date back to 1983, and one of the first legal challenges to immigration detention. They set out the conditions that the Secretary of State (the Home Secretary) must meet in order lawfully to detain a migrant. The principles were subsequently summarised as:

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.

The Hardial Singh principles mean that the Home Office cannot simply lock up a migrant and throw away the key. Even if the person can lawfully be detained and the Home Office is doing everything that it can to deport them, there will come a point at which detention stops being lawful, either because detention is no longer ‘reasonable’, or because it will become unreasonable before the person is deported.

If migrants cannot lawfully be detained forever, is it therefore wrong to speak of indefinite detention?

The Cambridge English Dictionary defines ‘indefinite’ as ‘not exact, not clear or without clear limits.’ Lucid as the Hardial Singh principles may be, they can hardly be claimed to set exact or clear limits to detention.

Indeed, the abundant case law on unlawful detention, which has proliferated over the last six years in tandem with the expansion of long-term detention, is decidedly unhelpful in providing any practical guide as to when detention will become unlawful in any given case. Each case must be assessed on its own merits, and previous cases give little indication of how each new case will be decided.

In the early days, hopes were raised by a ruling that 30 months was ‘right at the outer limit of the period of detention which can be justified’ except in cases of serious offending. But subsequent case law undermined the suggestion that 30 months could be any sort of rule of thumb for unlawfulness in typical cases.

Indeed, the courts have become ever more reluctant to spell out clear or exact limits to detention. In the influential view of the Court of Appeal, it is not the case that:

‘in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected… There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all.’

So not only is there no clear or exact time limit to detention, the Home Office does not even have to indicate when it expects removal to be possible, or have any certainty that it will ever be able to remove the person.

Indeed, it is not even clear that the Hardial Singh principles actually provide the legal limit to detention, since the Court of Appeal has also found that not every breach gives rise to a claim of false imprisonment. Detention can be not lawful with reference to Hardial Singh, but not unlawful either: a novel legal status that has been described by an influential barrister blogger as ‘legal-ish’.

The predictable result has been that migrants have been detained for periods that would be considered preposterous in any other European state, on the thinnest of pretexts. Shafiq-ur-Rehman, for example, was detained for 3 years and ten months, for much of which he was cooperating with removal, after serving a single prison sentence of seven months for using a false passport.

Immigration detention in the UK frequently lasts for years. Last month HM Inspector of Prisons reported finding nearly 40 people detained for over a year in a single detention centre, the Verne, and one detained for over five years. There is no time limit, and no-one in detention can receive even the haziest estimation of how long their detention would be lawful. There are legal limitations on the period of detention, but breaching them may not be unlawful.

If this is not indefinite detention, then we are in the world of Kafka.

3 September 2015

As part of #UnlocktheDebate, the Detention Forum members will be sharing their views ahead of the parliamentary debate on the detention inquiry recommendations on 10th Sep 2015.

In this piece, Ali McGinley of the Association of Visitors to Immigration Detainees (AVID) cautions MPs not to be fooled by the Government’s repeated claim that the ‘Shaw Review’ will address all the serious issues highlighted by the detention inquiry report.

Tweet your feedback to us (@DetentionForum) or with a hashtag, #UnlockTheDebate  AVID tweets at @AVIDdetention

==================================================

Next week the ground-breaking recommendations of the first ever Parliamentary Inquiry into immigration detention will be debated…….in Parliament. Since the publication of the inquiry report earlier this year, the calls for substantive change in the UK’s use of detention have amplified, buoyed by the hope that the huge raft of evidence which fed the Inquiry’s conclusions cannot be ignored, as so many other reports have been. The Inquiry concluded that wholesale change was needed, arguing for community alternatives and a time limit.

To date, the response from government has been to state that the UK cannot detain indefinitely and to defer to what has become known as the ‘Shaw Review’, a review into the welfare in detention of vulnerable people. It is likely these arguments will feature heavily in next week’s debate. But is the Shaw Review able to cure all ills?

There is no doubt that, as the Inquiry concluded, the UK uses detention ‘disproportionately and inappropriately’. There is a mounting crisis of harm in detention, yet thus far the government seems reluctant to accept the findings of the cross party panel of MPs and Peers, preferring instead to fall back on their own patchwork quilt approach of remedial reviews and investigations.

The Shaw Review was announced just days before the publication of the Inquiry findings and is viewed as a pre-emptive strike to the report, as well as a response to the damning Channel 4 investigations into Yarl’s Wood and Harmondsworth.

While the situation facing the vulnerable in detention is at crisis point, and therefore the Shaw Review is welcomed, there is a worrying tendency on the part of government to both pre-empt and over-estimate the impact that this review will be able to have.

The terms of reference handed to Sir Stephen and his team of Home Office secondees does not permit them to consider the decision to detain. As such the review’s premise is clear: the principle of detention is ‘not in question’, and it will only be able to deal with issues that arise once someone is already in detention. It will not be able to address the Inquiry’s critical findings of a disconnect between the official guidance on detention (which states that detention should be used sparingly and for the shortest period necessary) and the current practice of holding 30,000 people a year, with many instances of prolonged and unlawful detention. This is even acknowledged in the concluding remarks of the Inquiry Report:

“We welcome the review into the welfare in detention of vulnerable persons that was announced in February 2015, shortly before this report was published. However, the narrow scope of the review, particularly the restriction that it will not look at decisions to detain, means that it will not be able to deal with the issues raised by this inquiry and others”

Worryingly, this also means that the review will bypass the burning question at the heart of any consideration of the welfare needs of vulnerable people – why are they in detention in the first place? Does the UK really need to lock up pregnant women, those who have mental health needs, or people who have a disability? There is a real risk therefore that the Shaw Review will fall into what the Inquiry calls ‘tinkering’, looking at the remedial aspects of the system, and leaving the root causes of the problem unaddressed. There may be dangerous consequences should this opportunity be missed.

Similar attempts to ameliorate concerns about the treatment of vulnerable people in detention have been made in the past, with limited impact.

In response to a series of breaches of the Article 3 rights of immigration detainees with serious mental health needs, the Home Office commissioned the Tavistock Institute to carry out the Review of Mental Health Issues in Immigration Removal Centres in 2013. Tavistock reported in 2014 but their conclusions were not published until 2015, and we’ve yet to see any policy change as a result of their findings.

The Serco-commissioned review of Yarl’s Wood, a response to the findings of the Channel 4 expose, is a similar exercise, currently being undertaken by Kate Lampard CBE. Her remit is restricted to the elements of managing the centre which falls under Serco’s remit; as such she won’t be able to address the more complex policy questions around why so many vulnerable women are held in detention, many of whom have experienced sexual violence. Again, this review is welcomed: the women at Yarl’s Wood have been sidelined for too long. But it is unfortunately yet another example of a piecemeal approach which ignores the broader call for a time limit or the use of community alternatives.

There is a bigger question here. For many of us, the launch of the Parliamentary Inquiry report was a bit of a watershed moment. The systemic problems that we see every day were set out in black and white by a Cross Party Panel of MPs and Peers with considerable expertise, and their conclusions were clear: the problems that beset the UK detention system could be resolved simply by detaining fewer people.

Why is the government so reluctant to engage on the recommendations made by parliamentarians, instead diverting resources into piecemeal reviews of existing policies and systems?

Sadly, as we await their response, the crisis mounts: in the last month we’ve seen HMIP conclude that there is ‘too much violence’ at the Verne and that Yarl’s Wood is ‘a place of national concern’ that is ‘not meeting the needs of vulnerable women’. A few weeks ago there were media reports that a young man tragically took his own life at the Verne, and in the same month Catherine West MP was denied access to Yarl’s Wood, feeding rather than alleviating concerns.

It is time for the government to acknowledge that the problems in UK detention will take more than a sticking plaster to solve.