Immigration detention: the Bar speaks out

Amidst official inquiries, media exposes and NGO research condemning the UK’s immigration detention practices, lawyers’ accounts reveal a system riddled with injustice. Dr Anna Lindley reports

‘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. I interviewed 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 study, based primarily on the analysis of qualitative accounts, has obvious limitations but highlights a number of issues that merit further investigation and attention. It also draws on analysis of government statistics, NGO data collection, and published testimony of those held in immigration removal centres. The picture that emerged was of a system riddled with injustice.

The shocking statistics

The UK has one of the largest and most controversial immigration detention systems in Europe. As of September 2017 around 3,455 people were being held in immigration detention 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 ECHR Art 3 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 are 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. While mistakes occur within any bureaucracy, detention lawyers see many, and the stakes are high. Too much depends on access to the courts. This is not good public administration. It is also deeply inappropriate given the deprivation of liberty involved. Attention has focused on repeated scandals of the treatment of detainees by private security contractors running detention centres, but lawyers’ accounts suggest that an overhaul of the public administration of detention is also overdue.

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. There has been little improvement since these issues were highlighted by the charity Bail for Immigration Detainees and the Bail Observation Project. Judicial interpretation of key factors under consideration (including imminence of removal, public harm, and risk of absconding) can vary considerably. The changes set out in the 2016 Immigration Act which came into force on 15 January, while introducing a new duty for the SSHD to refer the matters of people detained for more than four months to the Tribunal for a decision on whether bail should be granted, still fall far short of addressing many concerns practitioners voiced about the bail process, and indeed raise fresh concerns by increasing the Home Office’s control of the process.

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.

Legal aid for immigration matters has been cut dramatically since the implementation of LASPO. Many who end up in detention could have sorted out their immigration status or made the decision to leave the UK earlier, but were unable to access free immigration advice, or received poor advice. The uneven geography of access to immigration legal advice is well-documented. Once detained, the publicly funded Detention Duty Advice scheme provides much-needed initial legal help to many people, and also assists many with legal representation. But lawyers voiced concerns that not everyone in detention is able to obtain legal aid that they are entitled to, or as promptly as they need. A range of factors come into play, including capacity problems, stringent enforcement of means and merits tests by the Legal Aid Agency and law firms’ resulting caution about taking on some viable cases because of the financial risks that involved.

As one specialist put it, ‘The whole myth of legal aid, and “we’re OK detaining people because they have access to legal remedies” just doesn’t play out in practice.’ Use of private and pro bono services seems to be increasing, but access to these is uneven. Publicly available data is limited largely to the regular survey by Bail for Immigration Detainees of its open casework files. This recently showed that one in three respondents had never had a legal representative while in detention, a marked deterioration on previous years. No legal representative was listed in 21% of the 1,585 bail hearings we monitored via daily court listings online over two months. Moreover, the quality of advice varies, with reports of incompetent and rogue practice particularly in private provision: ‘I have seen grounds which are an A4 page, no mention of any substantive law, just “what I think” dressed up in legal language. And our clients are intimidated by the legalese but a judge looking at that is just… it would be funny if it wasn’t someone’s life.’ Outcomes for detainees without effective legal advice and representation are poor. Given what is at stake, better legal aid funding and quality advice is needed for those detained under immigration powers.

There were other concerns too, about the need for a more robust framework to prevent harm in detention; and about ‘double punishment’, the very long immigration detentions subsequent to serving a criminal sentence. At Temple Church, Maurice Wren CEO of the Refugee Council and co-founder of the Detention Forum, a network of NGOs working on these issues, pointed out there are many alternatives to detention as a means of managing migration.

This is not an issue that is going to go away

With more and more people affected by changes to immigration policy and detention, there is increasing public awareness, civic mobilisation and parliamentary concern. Detention is part of a wider hostile environment policy, beyond the scope of this article. But considered from the particular point of view of the rule of law and access to justice, it is clear that as long as detention persists as a feature of immigration control in the UK, it needs to be subject to stronger safeguards. The Bar Council’s strong voice is to be welcomed; let’s hope it continues to monitor and advocate the concerns of legal professionals about the access to justice of detainees in the year ahead.

Contributor Anna Lindley, SOAS, University of London

Comment: an immigration barrister’s view

In this very welcome Bar Council report we hear the voices of some of the judges tasked with deciding bail applications. What they say should worry us all. Home Office civil servants are criticised, but so too are claimant lawyers. The report is a well researched, important and timely contribution to the ongoing debate on immigration detention. The UK is the only country in Europe with no hard time limit on immigration detention but pressure is growing for that to change.

Immigration detention is administrative detention. It is authorised by a civil servant, not a judge. Many detainees have committed no crime. It is an administrative convenience, not a judicial sanction. No matter what Ministers say, it is indefinite detention because it is ‘without clearly marked outlines or limits’. The only theoretical constraint is that detention is only lawful so long as there is a reasonable prospect of removal. Civil servants do not take this seriously, some immigration bail judges give them very considerable latitude and the higher courts have interpreted detention lasting several years as being lawful, setting a very problematic precedent.

Many of the problems with the immigration detention regime flow from the absence of a proper time limit on detention. Rather than being detained once arrangements are in place for removal in order to ensure the removal is effective, migrants are detained first and only then do efforts begin to arrange removal. There is no pressure on civil servants to act quickly so it takes weeks or months to issue documents or arrange interviews with foreign embassies, during which time the migrant languishes. There is very little scrutiny and there are no automatic bail hearings, enabling inefficiency and sheer incompetence to flourish.

Contributor Colin Yeo, barrister in immigration law

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Dr Anna Lindley

Senior Lecturer in Migration, Mobility and Development at SOAS, University of London