House of Commons - Home Affairs

Select Committee on Home Affairs Fourth Report

Detention

76. The next stage in a failed asylum seeker's progression towards removal may be detention. Legal powers to detain are contained in the Immigration Act 1971 and the Immigration and Asylum Act 1999. The statutes allow the detention of certain classes of people while decisions are made about their immigration status.[88] The criteria for detention are not stated in legislation, and have therefore been a matter for policy. Limits on detention have, however, been imposed by the courts and the European Convention of Human Rights (as discussed at greater length below) to ensure that it is only used to facilitate the particular immigration actions set out in the footnote below, and within a reasonable time.

77. The most recent statistics show that 795 asylum seekers were in detention on 28 December 2002. This compares with 1,280 on 29 December 2001. In December 2002, 40 individuals were being held at Oakington Reception Centre, 640 at Immigration Service Removal Centres, fewer than five at Immigration Short Term Holding Facilities, and 110 at prison establishments.[89] Excluding detainees at Oakington, (which operates on a different basis from most Centres, and has been used since March 2000 to house only those with claims which may be decided quickly) 33% of the total had been in detention for less than one month, 17% for between one and two months, 18% for between two and four months, and 32% for four months or more.[90]

78. In the White Paper the Government emphasised the "key role" of detention in removal, and stated that "the primary focus of detention will continue to be its use in support of [the] removals strategy".[91] We have received anecdotal evidence and assertions from various witnesses claiming that detention is not always used appropriately. Ms Nicola Rogers, of the Immigration Law Practitioners' Association, told the Committee that, for detention to be compliant with the European Convention on Human Rights, it could only be justified where necessary to prevent someone from illegally entering or in order to effect their removal.[92] She went on to say that these criteria were not being met by the Immigration Service. Bail for Immigration Detainees stated that:

the use of immigration detention is arbitrary and lacking in vital safeguards. Liberty is deprived for long periods for administrative reasons based on arbitrary decisions and apparently without consideration of more humane alternatives.[93]

79. We heard that one of the reasons that detention could be unsafe was the lack of judicial oversight of the decision to detain. The Immigration Law Practitioners' Association told us that this judicial oversight could be provided through routine bail hearings. Provision was made for such automatic hearings in the Immigration and Asylum Act 1999, but the relevant clause was never implemented, and was finally repealed by the Nationality, Immigration and Asylum Act 2002. Detainees may still apply for bail hearings, but Nicola Rogers of the Immigration Law Practitioners' Association told us that, in the absence of good translation services and universal, high quality legal representation, many detainees are unaware of, and therefore unable to exercise, their rights in this respect. The Refugee Council told us that "significant numbers of people are confined in detention quite arbitrarily and unnecessarily" as a consequence of this lack of judicial oversight.[94] The organisations arguing for implementation of automatic bail hearings includes the Refugee Council, the Immigration Advisory Service, and the Immigration Law Practitioners' Association.

80. The Minister of State told us that the Immigration Service is "trying to use detention in an increasingly selected and targeted way" and the Director General of the Immigration and Nationality Directorate stated that "it is unlikely that we would be detaining in many cases other than quite close to the point when we think removal is actually within sight".[95] The Minister of State told us that possible reasons for detention are:

when we need to establish somebody's identity [ ... ] if they are one of a group that at the moment can be fast-tracked through the Oakington process, where we do not think somebody will comply with any conditions that could be attached to temporary admission, or in order to effect a removal.[96]

81. The Minister argued that automatic bail hearings would be an "unnecessary bureaucracy", given that detainees "can through their representatives apply for bail at any time at all".[97]

82. A clear picture of the current use of detention, and the reasons why individuals are detained, is not available at the moment because of the lack of relevant statistics. There is currently no data available on how many asylum seekers are detained during the course of a year, and for how long, or at what stage of the asylum process. It is therefore difficult to judge whether or not detention really is being used primarily to support removal, as the Government claims. We recommend that the Immigration and Nationality Directorate should provide quarterly figures on total numbers detained during the period with lengths of detention.

83. We believe that detention can be justified especially prior to removal in cases where the individual has a history of evading the Immigration Service, or where there are reasonable grounds to suspect that the individual will abscond or pose a security threat or engage in criminal activities if allowed to remain at liberty.

84. We reject the suggestion that provision should be made for automatic bail hearings at the point of detention on the grounds that this would only present yet another opportunity to string out a process that already takes too long. There may be a case, however, for giving anyone detained longer than, say, three months an automatic bail hearing at that point.

FAMILIES

85. We have heard that the detention of family groups gives cause for concern. The White Paper Secure Borders, Safe Haven gave details of a change in policy towards the detention of families. Whereas formerly, families had only been detained shortly before, and to facilitate, removal, they may now be detained "at other times and for longer periods than just immediately prior to removal". The reason cited for this change was that "families can in some instances give rise to the same problems of noncompliance and thus the need to detain as can be encountered with single adults". They can now, therefore, be detained "whilst their identities and basis of claim are established, or because there is a reasonable belief that they would abscond".[98] The Immigration Law Practitioners' Association stated that the "increasing use of detention for families is [ ... ] an extremely alarming aspect of the Government's removal policy".[99] The Refugee Council, moreover, alleged that families with children were being detained "as a matter of administrative convenience with no real effort to explore alternatives".[100] In her recent report into conditions at five immigration detention facilities, the Chief Inspector of Prisons inspected two Centres in which families could be held, Oakington and Tinsley House. She commented that she "did not consider that they were suitable places for lengthy detention, of anything other than a few days at most" and recommended that "the detention of children should be avoided wherever possible, and only take place for the shortest time possible, in no case more than seven days".[101] In her initial response to this recommendation, the Minister of State said that while she was "deeply sympathetic" to concerns about the detention of children, no-one was detained for longer than necessary, and a time limit on detention would be "completely impractical" and would allow "people to evade removal by lodging last minute and time-wasting appeals".[102]

86. We believe that, under current practice, children should only be detained prior to removal when the planned period of detention is very short or where there are reasonable grounds to suppose that the family is likely to abscond.

LENGTHY DETENTION

87. We have also heard that detention is in some cases very lengthy. Bail for Immigration Detainees told us that:

the Immigration Service [... employs] administrative detention for prolonged periods. Detention periods of six months are not uncommon, and in some cases that [we are] aware of, detention was maintained for over two years, the worst case being incarcerated for just short of three years before removal could be carried out.[103]

88. The primary reason for lengthy detention appears to be, once again, the problem of obtaining documentation. The Immigration Law Practitioners' Association suggested that a maximum time limit should be set for periods of detention, "in terms of weeks rather than months".[104] It was also represented to us that "significant numbers" are detained for a lengthy period when removal is not, in fact, possible.[105] The Immigration Law Practitioners' Association told us that detention in these circumstances is contrary to Article 5 of the European Convention on Human Rights and should absolutely be avoided.

89. In response to these concerns, the Director General of the Immigration and Nationality Directorate told us that "we are detaining people for lengthy periods much less frequently than we used to in the past" and the Minister of State said that there was no need to set a maximum limit on detention as "people through their representatives have the opportunity to challenge continued detention through the courts if it is felt to be excessive".[106] The process for making a challenge would be to seek a Judicial Review of the decision to detain, or the decision to maintain the detention, or to bring an action for habeas corpus.[107] The Minister of State also agreed that detention without a prospect of removal was illegal, and denied that it occurred.[108] The Detention Centre Rules require that "every detained person will be provided [ ... ] with written reasons for his detention at the time of his initial detention, and thereafter monthly".[109] However, the Chief Inspector of Prisons found in her inspection of immigration centres that detainees were "unable to obtain reliable information from the immigration authorities about the reasons for their detention or the progress of their cases" and "reviews of detention, if they took place, were not effectively communicated to detainees".[110]

90. As we indicated in paragraph 82, better statistical information is required on length of detention, in particular so that any increases in the average length of detention can be monitored. The numbers of people detained for very long periods may be small but these cases deserve particular attention. The Minister of State acknowledged to us that "indefinite detention" would be a breach of the European Convention on Human Rights. It is not clear to us at what point long-term detention with no realistic prospect of either removal or release might be said to constitute "indefinite detention". In any case, very lengthy detention can certainly be regarded as a serious encroachment on the rights of the individual, as well as being a financial burden on the taxpayer. In paragraph 84 above, we recommend that a bail hearing should automatically be held after 3 months detention. We further recommend that after 12 months detention, another bail hearing should be automatically held, with the presumption that the individual should be released unless there are compelling reasons why his continued detention is in the public interest or the detainee is considered to have prolonged his own detention by failure to co-operate with inquiries or to provide accurate information. Similar reviews should be held, if applicable, every 6 months thereafter. The Home Secretary should also be obliged to lay before the House, on a quarterly basis, a publication listing the names of all detainees who have been in detention for 12 months or longer and the reasons, in each case, for their continued detention.

CONDITIONS IN REMOVAL CENTRES

91. Most asylum detainees are now held in Immigration Removal Centres, of which there are eight: at Harmondsworth (near Heathrow Airport), Campsfield House (Oxfordshire), Dungavel (South Lanarkshire), Dover, Haslar (in Gosport), Lindholme (in Doncaster), Tinsley House (near Gatwick Airport) and Yarl's Wood (Bedfordshire). Of these, Harmondsworth, Campsfield House, Tinsley House, Dungavel and Yarl's Wood are run by private security firms under contracts with the Home Office. There is also Oakington Reception Centre (near Cambridge), which as we have seen operates on a different basis. All of the Centres are subject to the Detention Centre Rules, approved by Parliament, which lay down requirements for the welfare, access to services and security of detainees held in these premises.[111] Immigration Detention accommodation is subject to inspection by HM Chief Inspector of Prisons, and a statutory Visiting Committee is tasked to visit and report to the Home Secretary on conditions in each Centre.[112]

92. In her recent inspection report HM Chief Inspector of Prisons found various causes of concern regarding the conditions in Immigration Service custodial centres. From surveys of detainees, the Chief Inspector found that only 37% of inhabitants of the five Centres visited felt safe, and that at all the establishments visited excluding Oakington, this percentage dropped as length of time spent in detention increased.[113] Detainees were unable to obtain reliable information about the progress of their case and were not easily able to access competent independent legal advice. Moreover, staff in most Centres were not adequately trained in or aware of the specific needs of immigration detainees. The provision of interpreters and translated information was poor in all Centres except Oakington, and "significant proportions of detainees did not understand why they were being held in detention, the rules and routines of the centres, or what the centre doctor or their legal representative had said to them".[114] A "major cause for concern" at all centres was the absence of specific provision to deal with welfare needs of those detained without notice, sometimes after lengthy residence in the UK.[115] The provision of opportunities and facilities to communicate with friends and advisers outside the Centres varied widely. The Chief Inspector also reported her concern that detainees were not given adequate information about or notice of moves out of detention—whether by removal, release or transfer to another Centre. She said that while these "hurried, and sometimes deceptive" arrangements were apparently designed to minimise security and self-harm risks, "those risks should be managed properly, rather than evaded", and that detainees are more likely to cause trouble if unprepared for removal.[116] In an initial response to the Chief Inspector's reports, the Minister of State said that "a large proportion of the findings reflect only the comments of the detainees themselves. As people are generally unhappy about being detained and removed from the country, it is unsurprising that they express dissatisfaction with their situation".[117]

93. Despite the requirements laid down in the Detention Centre Rules, we have received evidence confirming that conditions vary considerably across the Centres. The Association of Visitors to Immigration Detainees, an umbrella organisation for voluntary visiting groups, assembled for us a number of observations from their members which support this assertion. The Detention Centre Rules state that "every detained person may receive as many visits as he wishes within such reasonable limits and subject to such reasonable conditions as the Secretary of State may direct".[118] However, there is no specific instruction as to the number of visiting hours which should be made available. We were told that detainees at Dungavel, Harmondsworth and Tinsley House are granted 49 hours of visiting time a week, whereas those at Dover and Lindholme are entitled to only 17.5 hours a week, and at Haslar, only 12. Moreover, at Haslar, unlike anywhere else, detainees can be strip-searched after receiving a visitor.[119] Similarly, while the accommodation at Harmondsworth is described by the Association of Visitors to Immigration Detainees as "satisfactory, basic accommodation", the bedrooms at Haslar are "bleak and tiny cubicles" without curtains at the windows.[120] In her report, the Chief Inspector of Prisons noted that at Haslar and Lindholme strip-searches of detainees were carried out randomly after visits, rather than on the basis of reasonable suspicion. She said that this practice was "unacceptable and unnecessary" and recommended that strip-searches should only be carried out on the basis of reasonable suspicion.[121] We believe that strip-searches of detainees should only be carried out where justified by reasonable suspicion and not as a matter of routine. We recommend that the practice of conducting random strip-searches after visits should be abandoned forthwith.

94. The Association told us that the discrepancies in standards appear to be particularly wide when comparing the privately-run Removal Centres with those run by the Immigration Service in former Prison Service properties (Dover, Haslar and Lindholme). Conditions in the latter properties, they claimed, are much worse.[122] The Chief Inspector of Prisons also found disparities between Prison Service and privately contracted Centres. Detainees "felt particularly unsafe at the two Prison Service run Centres" compared with the other Centres, and at Haslar, "the physical environment was unsafe and unsatisfactory". Staff at all Centres were found to be "not sufficiently alert to, or trained in, the specific needs of immigration detainees", but this was "particularly apparent" at the Prison Service establishments. There was also inadequate provision of constructive activity in the Prison Service establishments.[123] We have been told that part of the problem is that the Detention Centre Rules do not set out requirements in sufficient detail. When the Rules were introduced in April 2001, the expectation was that they would be followed by publication of more detailed Operating Standards. In fact, although some Operating Standards have been published, their coverage is patchy and many aspects of the operation of Removal Centres are not subject to detailed regulation.

95. In response to our questioning, the Minister of State told us that when some of the former Prison Service establishments were re-designated removal centres, "it was recognised that [ ... ] there would be a period in which the conditions would have to catch up to what was already available in the contractedout centres". She added, however, that all Centres operate to the same standards and "in the three former Prison Service facilities [the Immigration Service is] continuing to work on those areas that do need improvement".[124] She stated that Operating Standards had been published relating to female detainees, race relations, religion, suicide and self-harm prevention and use of force; and that further standards were available in draft relating to activities for adults and children, catering, communications, complaints/requests procedures, healthcare, temporary confinement, accommodation, arrangements for expenditure, case progress, incentives schemes, removal from association and standards audit.[125]

96. We regret the delay in publishing a full set of detailed Operating Standards for Removal Centres. As the Centres have now been operating for some time, the inevitable consequence of this delay has been the emergence of undesirable disparities in standards and conditions between different Centres. We urge that remaining Operating Standards should be published as soon as possible. Standards governing visiting hours and legal access are particularly needed. We further recommend that standards should be raised in those Removal Centres run in former Prison Service accommodation, to match the best practice of privately-contracted Centres, and that a target date should be set by which consistency of standards across private and public Removal Centres is to be achieved. If, after a reasonable time, the public sector is unable to achieve an acceptable standard, the contract should be put out to tender.

ACCESS TO LEGAL ADVICE

97. The legal advice available to detainees appears not always to be of an acceptable standard. The Chief Inspector of Prisons, reporting on her inspections of five immigration Centres, judged that detainees were unable easily to obtain good legal advice, and that in a number of centres they were "clearly targeted by unscrupulous advisers who were able to prey on their vulnerability". Inadequate provision of interpreting services meant that detainees reported being unable to understand what representatives told them.[126] Ms Nicola Rogers of the Immigration Law Practitioners' Association claimed that members of her organisation "[had] come across cases where people have been very badly represented or once they have gone into detention their representative has forgotten about them".[127] She told us that the charities providing free legal advice were extremely overstretched and therefore could not always take on cases, and that "representation of a detained case involves much more work than for someone who is on the outside, because of setting up meetings", especially when the Removal Centre is in a fairly remote location, such as Dungavel.[128] Ms Rogers compared the experience of an immigration detainee to that of a remand prisoner, to whom routine legal advice is always available through a duty solicitor, and suggested that a similar duty scheme should be made available in Removal Centres.

98. Mr Banks, Chief Operating Officer of Group 4 Falck Global Solutions Ltd, which runs Campsfield House, Yarl's Wood and Oakington Reception Centre, told us that in his organisation's Removal Centres, detainees can receive legal visits between 9 am and 9 pm, and outside those times if urgent. He said that incoming phone lines allow legal representatives to call at any time and that detainees can communicate with their representatives by post or fax, at the company's expense. Telephone numbers to the free legal services provided by the two charities, the Refugee Legal Centre and Immigration Advisory Service, are advertised within the Centre and through the induction process for new arrivals.[129]

99. We accept that current arrangements for access to legal advice are inadequate. It may be that the matter can be resolved by appointment of a welfare officer, as we have recommended at paragraph 75 above, who can either put detainees in touch with their own legal representatives or who can provide access to emergency legal advice. Failing that, however, consideration should be given to providing detainees with access to a duty solicitor.

SELF-HARM

100. The report of the Chief Inspector of Prisons found that healthcare, and mental health care in particular, "was an issue" in most centres inspected. She also found that the necessary procedural safeguards and strategies to protect against suicide, self-harm and bullying had not been put in place in the privately-run Removal Centres she inspected.[130]

101. The Minister of State told us that although statistics were not available on self-harm in Removal Centres, "the numbers of [ ... ] incidents are relatively small".[131] Although contractors and operators of Centres are obliged to monitor occurrences of self-harm, this is not done in a sufficiently standardised way to enable the production of reliable statistics. The Minister said that "we probably need to strengthen the extent to which we collate information and have a really robust picture of those incidents" and that work was progressing on "a systematic and standardised method of defining and recording such incidents".[132]

102. We welcome the Minister's undertaking to develop better statistical information about instances of self-harm in Removal Centres.

88 Those arriving at a UK port without leave to enter, and those arriving with leave to enter, whose leave is suspended by an immigration officer, may be detained while awaiting examination by an officer and pending a decision on whether to admit them. Individuals refused leave to enter, or suspected of having been refused, and illegal entrants may be detained pending a decision to give removal directions, and pending removal itself. In the same way, those subject to administrative removal may be detained pending a decision to remove and then pending removal, as may crews of ships and aircrafts who remain, or intend to remain beyond the leave granted, or abscond or intend to abscond, or who are suspected of any of these things. Finally, those subject to deportation may also be detained, between receiving a notice of deportation, a recommendation for deportation or a deportation order, and the deportation itself. Back

89 In answer to a Parliamentary Question in January 2003, the Minister of State said that "although the routine use of prison accommodation for immigration detainees had ended, there would remain a need to hold small numbers of individual detainees in prison for reasons of security and control" (HC Deb, 27 January 2003, col 708W). Back

90 Asylum Statistics: 4^th Quarter 2002 United Kingdom, Home Office, February 2003; Asylum Statistics United Kingdom 2001, Home Office, July 2002 Back

91 Secure Borders, Safe Haven: Integration with Diversity in Modern Britain, Cm 5387, Home Office, February 2002, p 66, para 4.74 Back

92 Q 482 Back

93 Ev 126, para 5 Back

94 Ev 166, para 3.13 Back

95 Q 677; Q 680 Back

96 Q 675 Back

97 Q 682 Back

98 Secure Borders, Safe Haven, p 67, para 4.77 Back