APPENDIX 10
Further supplementary memorandum submitted
by AVID (Association of Visitors to Immigration Detainees)
INITIAL DECISION
MAKING BY
IMMIGRATION OFFICERS
In-country information about consequences on return
The initial decision-making process is crucial.
Evidence shows roughly 50 per cent of these decisions are overturned
at Judicial Review (Refugee Council). Clearly the initial decision
making is not as effective as it should be.
A comprehensive review of the initial decision-making
process should include assessment of individual mitigating circumstances,
and accurate and current information on country of origin. This
process and the initial decision should be subject to external
scrutiny.
Factual information can be accessed from reliable
and up-to-date sources, eg HO website, FCO, Amnesty, UN.
AT APPEAL
Non-suspensive appeals allow people to be removed
and then make an appeal—usually from one of the candidate
countries of the EU.
Instances of where the legal process is incomplete,
but appeals can be made from outside the UK, is neither an abundantly
clear nor practical option to those being removed. Even if a non-suspensive
appeal is legally possible, the impression given is that access
to due legal process is denied.
Certified cases (those regarded as unfounded by
IND)
In the matter of certified cases, is it proper
for IND to be the sole arbiter of what is unfounded? These are
administrative decisions which ought to be subject to scrutiny
by external systems, to provide checks and balances which take
into account mitigating circumstances.
AT THE
END OF
THE PROCESS
Deportation Orders
Delays created by a practical problems: eg obtaining
tickets, availability of seats on flights, lack of travel documents,
release dates from prison altered by revised calculations.
Other factors influencing this situation are
outside of our knowledge.
Removals
The purpose of detention is, we are told, to
facilitate removal, but if you can't remove someone, you ought
not to be able to detain.
The nature of these delays can originate from
lack of available seats on flights, difficulties with documentation
and rarely, with identity and nationality.
Detention
The experience of many visitors is that people
may only have the opportunity to enter the asylum process in a
Removal Centre if they have been detained on arrival.
eg Ad hoc figures for the period July
to December 2002 at two Removal Centres 17 per cent of 518 people
visited were detained on arrival.
AVID has no statistics for these figures but
together with various voluntary organisations and NGOs, AVID is
looking at this.
We recommend that the Contract Monitors in the
Removal Centres are required to ensure that all legal processes
have been sufficiently accessed and completed before removal takes
place, that detainees' legal advisors are promptly informed and
steps taken to ensure that they are.
Removal mid-legal process over a weekend
One woman (not in detention) whose legal process
was still mid-flow was detained by Immigration from her home over
the weekend. She managed to leave a message on her solicitor's
answerphone. Quite by chance, her solicitor was at her office
on the Saturday, picked up the message, stopped the removal. Had
the solicitor not have been in her office by chance on a Saturday,
her client would have been removed.
We also recommend the independent welfare provisions
assist with completion of the detainee's personal affairs. Eg
belongings, financial matters, domestic arrangements.
People are arrested without notice and this can
cause considerable problems
Examples:
A local man known to our group was required
to attend for interview at Gatwick. He was detained and subsequently
sent to Heathrow. I personally went to his flat, packed his belongings
and took them to Heathrow. It took two hours and numerous phone
calls before Immigration would accept the bags. There should be
a system in place for handing in property to people being removed.
A man leaving a night job in a central London
hotel was stopped by the police as he was getting into his car.
The situation became confrontational and he was arrested and then
detained by the Immigration Service. When I met him his car had
been parked in the West End for some days and it took me a whole
morning of phoning different police stations and local authorities
to get the parking tickets cancelled and the car moved. (Affidavit
available).
It is a tragic fact that there have been three
suicides in Removal Centres prior to removal and at least 10 instances
known to us of serious self-harm which have taken place soon after
the decision to remove was made known. This cannot be the desired
end of the process.
eg Haslar Removal Centre suicide 31 January
2003.
HOW PEOPLE
ARE INFORMED
ABOUT PROGRESS
OF THEIR
CASE AND
REPORTS
Our evidence from visitors indicates that many
detainees do not always understand the information provided for
various reasons. eg nothing is written in a language they understand,
the process itself is not sufficiently well explained, lack of
trust exists and a standardised format can minimise and detract
from complexities of individual circumstances.
Lack of interpreters and access to other organisations—other
than immigration officers, Removal Centre staff—does not
assist.
We recommend that each detainee is given a Handbook
in a language they can understand and or guidance from an independent
welfare body to explain what is happening and why. A Handbook
for Detainees would provide comprehensive information, including
House Rules, eg the Prisoners Handbook.
A detainee was held at an airport holding centre
from 12.00 noon to 6 pm without being able to communicate with
anyone due to the lack of an interpreter. The facility does not
have language line facility as a result of which the detainee
was held without an opportunity to receive information or ask
questions.
The lack of this facility has been pointed out
by Her Majesty's Inspector of Prisons but nothing has been done
to rectify the problem.
HOW PEOPLE
SUPPORT THEMSELVES
WHILST AWAITING
REMOVAL (NOT
HELD IN
DETENTION)
It is repugnant to place people in the community
without the means to support themselves. We have no statistics
to clarify the extent of this problem and how, under the new NASS
arrangements, the situation will unfold for those awaiting removal.
Most of our visitors are unlikely to be dealing with these problems.
Extended Leave to Remain (ELR)/Humanitarian Protection
(HP)—does the change of name have any meaning?
"Exceptional Leave to Remain" recognises
and acknowledges the circumstances of an individual with compassion
and a degree of certainty is expressed in the word Remain.
"Humanitarian Protection"—requires
greater definition as we probably all believe we are entitled
to protection of a humanitarian kind in a civilised society. If
the new phrase indicates a narrow obligation to meet basic human
needs alone, then the legal certainty offered by the words "Leave
to Remain" is a sad omission.
What was the purpose of the change?
Such questions should be regularly asked, but
not limited to the articulation and terminology for the process.
10% granted ELR in 1998; 25% granted ELR 2002.
DETENTION
REMOVAL
CENTRES
AVID has proposed for some time that all Removal
Centres should operate a consistent and high standard of delivery
of service, equal throughout the Removal Centres. There are continuing
discrepancies in the daily regimes of the former prisons, now
used as long stay accommodation, eg Dover. Linkholme and Haslar
and the new Removal Centres, such as Tinsley House, Harmondsworth,
Yarls Wood, Dungavel and Campsfield House. Supplementary documents
can be provided to illustrate our points, eg visiting hours for
friends and family in the three prisons are approximately two
hours a day in the afternoon only and in the rest of the estate
visiting hours are seven hours a day.
There is also a strongly held opinion that immigration
detainees should not be held in prison establishments.
We have tried to highlight the difficulties
and inconsistencies in the two sectors through our comments to
the Home Office on Detention Centre Rules, the Operating Standards
and our Table of Comparisons of Conditions in Removal Centres
which we try to keep updated.
CRITERIA FOR
DETENTION
Suggestions for alternatives
AVID has queried what the reasons are for Government
considering that more people will need to be detained in future
and why people may be detained at stages other than for removal.
Who should be detained? At a basic level, it
seems only those whose claims have been unsuccessful and are at
the end of the process should be detained because it is the sole
way to effect Removal of a person. However, most people are removed
without being detained.
There should be a clear statement of Duty of
Care not to detain those individuals who would be considered vulnerable
and that mitigating circumstances eg, health, family should be
considered as they would be in law.
MANY PEOPLE
ARE DETAINED
FOR LONG
PERIODS WITHOUT
BEING REMOVED
AND WITHOUT
PROPER REGARD
TO THEIR
CIRCUMSTANCES
Examples:
TK was detained when his girlfriend (also an
asylum seeker) was five months pregnant. He was detained for a
little over five months and missed the birth of his child. His
girlfriend was alone in a strange country during all the latter
months of the pregnancy. This was despite the vigorous and repeated
intervention of the solicitor and a visitor group and the support
of a Bishop. The Visitors Group believes that there was very little
justification for detaining a man clearly devoted to his girlfriend
and child. The couple are to be married shortly (full documentation
of this case is available).
Alternatives to detention
AVID does not have a policy on this, but our
membership would support possibilities that could be explored
further.
Police reporting restriction—not attached
to bail.
Automatic bail.
Tagging.
Immigration Hostels with curfews. Small units
in towns and cities where legal services can be sufficiently accessed.
The Appearance Assistance programme in the USA—community
based and supervised.
PROFILE OF
WHO IS
DETAINED
At what stage of the legal process are people
detained?
How many?
AVID has no statistics for these figures but
together with various voluntary organisations and NGOs, AVID is
looking at this.
AVID's view is that the Home Office should provide
statistics to show at what stage in the legal process people are
detained; this might help clarify which set of circumstances lead
to detention.
AUTOMATIC BAIL
HEARINGS
Government White Paper: Fairer, Faster and Firmer
1998 recommended automatic bail hearings, which was widely supported,
then withdrawn; they should be implemented.
DETENTION OF
VULNERABLE PEOPLE
Families—children—those with medical
and psychiatric conditions—victims of torture.
Vulnerable people should not be detained.
Visitors have known of families and children
who have been detained for more than 100 days currently the HO
does not publish statistics that would include this information).
We strongly urge MPs to request the Minister to collate and publish
these details on a regular basis.
Of particular concern is the detention of families
and children; we do not know what the effect will be on children
who remain in detention, short or long term. It is an uncomfortable
fact that in the UK, families can be locked up. We recommend a
watching brief on this development by HMIP.
eg Families detained. Mother with two children
aged six years old and 18 months detained for 111 days now on
bail) the older child took six months to regain weight lost whilst
in detention.
One detainee who had tried self harm and was
recommended by a medical report to receive psychiatric help, was
removed to a country which the Untied Nations stated had no adequate
psychiatric resources, but Immigration decided that there was
one unit in the main city which could provide it. This was quite
unrealistic given the size of the country, the illiteracy of the
detainee and their lack of any funds whatsoever.
The detrimental effect of detention on the mental
health of detainees continues to be the subject of research. The
gamut of emotional responses runs from frustration to incidents
of serious self-harm, even suicide.
eg Dungavel—two suicide attempts in March
and April 2002.
HO is doing research into suicide attempts in
Removal Centres.
ACCESS TO
LEGAL SERVICES
Adequacy of access/availability
Visitors are aware that access to good legal
advice and representation can make all the difference to the end
result of a case. However, being in detention reduces the access
to choices and is of particular concern in areas of the country
where there are few practicing legal advisors.
A proposed Duty Scheme run by the Legal Services
Commission would be a positive step, addressing the need for greater
provision of legal services from detention (though it is not intended
for those at the end of the process).
LENGTH OF
DETENTION
Our knowledge about the continuing detention
of those subject to Deportation Orders to countries who delay
or refuse to issue travel documents is limited. Yet it is particularly
poignant to hear of people languishing, locked up not knowing
when or even whether they will be deported.
REMOVE OR
RELEASE
It is very difficult to remove undocumented
nationals to some countries. Algeria, for example, only accepts
three a week from the UK. In the past such people have been held
in detention for months while arrangements were made for their
removal.
The problem of the slow removal of undocumented
detainees is getting better but we still have a man of disputed
nationality who was removed and returned the next day as not being
a national. Three months later he is awaiting papers for the other
country, which he has always claimed was his real home.
On average the period of detention prior to
removal is between two to three months. Visitors know that it
can be a painfully protracted period of uncertainty and false
hopes for detainees.
Recently the pattern of detention has changed
within Tinsley House and Harmondsworth which are being used for
immediate Removals; Campsfield House for transferals of detainees
to other Centres, usually former prison establishments like Llindholme,
Dungavel, Dover and Haslar.
eg Haslar: out of 29 men being visited, 24% have
been in detention for six to nine months and 26% over nine months.
eg Home Office statistics 2002: 150 between six
and 122 months, 45 over one year and one known to be for more
than two years.
1. Loss of liberty: ie the net effect of
detention—for an indefinite period verges on cruelty.
Indefinite detention is detrimental to the mental
health of detainees (eg Second Exile thesis) and many detainees
on release find their symptoms disappear (Medical Foundation informal
comments).
2. Visitors feel that, on humanitarian grounds,
detainees who are subject to Removal, but who cannot be returned,
should be given Temporary Admission and be entitled to support
until such time as their papers are in order to be removed (if
necessary they could be tagged, under curfew, in a hostel etc).
ARE PEOPLE
KEPT IN
DETENTION WHO
CAN'T
EVER POSSIBLY
BE RETURNED?
In such cases Temporary Release should be considered
and reviewed on a regular basis by a body, something like the
parole Board. Immigration detainees are not held because they
are being punished for any crime; it is difficult to understand
why they should be detained indefinitely under such circumstances.
Regarding Foreign Nationals and Deportation
Orders, we understand that there are Immigration Rules under the
1971 Act that allow for mitigating circumstances to be taken into
consideration regarding release, but it is complex and outside
of our knowledge.
ESCORTS
The evidence visitors provide regarding these
points is anecdotal, it is difficult to judge whether these experiences
are the tip of an iceberg or all that there are, but the frequency
with which these incidents arise would indicate that there is
something seriously wrong with the current system. Further to
this, there are cases when the Removal Direction and Removal taking
place actually occur concurrently leaving no time for preparation,
often with distressing consequences.
PEOPLE ARE
ARRESTED WITHOUT
NOTICE AND
THIS CAN
CAUSE CONSIDERABLE
PROBLEMS
Examples:
A local man known to our group was required
to attend for interview at Gatwick. He was detained and subsequently
sent to Heathrow. I personally went to his flat, packed his belongings
and took them to Heathrow. It took two hours and numerous phone
calls before Immigration would accept the bags. There should be
a system in place for handing in property to people being removed.
A man leaving a night job in a central London
hotel was stopped by the police as he was getting into his car.
The situation became confrontational and he was arrested and then
detained by the Immigration Service. When I met him his car had
been parked in the West End for some days and it took me a whole
morning of phoning different police stations and local authorities
to get the parking tickets cancelled and the car moved. (Affidavit
available.)
A man was detained at work. His marriage had
broken down a few weeks before and his wife had left him as sole
carer of their 18 month old child. He employed a child-minder
during his working hours but was detained at work. Immigration
didn't know of the child and didn't accept his protests. He has
now been in detention for over a month. (Documentation is available.)
Points we think should be considered:
1. that there should be oversight by an impartial
body to monitor the Removal ie from the home right to the airplane;
2. to appoint an Independent Welfare Officer
who would act as the point of contact to assist in concluding
outstanding personal matters etc.
MALTREATMENT DURING
REMOVAL
There is a proper legal process through which
investigations into assault can be pursued. It should apply equally
to both parties and in the case of detainees, the full legal process
should be allowed to unravel appropriately with compensation if
awarded. There have been several incidents when this has not happened
and detainees have been removed without the case being resolved.
ASSAULT IN
VANS—A MONITORING
PROBLEM
When men are taken to the airport for removal
they are sometimes assaulted in the vans. This happens particularly
if the man resists removal. Visiting Committees in Removal Centres
do not have an official brief to oversee what is done in the vans—there
is in fact no oversight of guards' behaviour at this stage in
the removal process. Example:
IK was recently taken to the airport from a
Removal Centre and held while boarding the plane. He resisted
removal and was returned to the Removal Centre. He accused the
guards of beating him and spraying pepper in his face in the van.
He certainly had bruising and eye problems needing medical attention
over a number of days when returned to the Centre. I reported
this to the chair of the Visiting Committee, who agreed to look
into the matter, but who also made the point that the vans are
not officially in his brief. (Affidavit available.)
There should be independent monitoring of travel
conditions and the conduct of van guards, similar to that provided
by the Visiting Committees in Removal Centres. Monitoring should
continue till such time as a man has returned to him his documents
on the return flight. We have unsubstantiated reports that documents
have not always been returned on board but handed to immigration
in the country of arrival.
Assault is assault, such incidents should be
properly documented and statistics held to help recognise the
extent of this maltreatment etc. There should be independent monitoring
of travel conditions and the conduct of guards.
EVIDENCE OF
FAMILIES SPLIT
UP
Recommendations
Again there are devastating descriptions of
incidents that illustrate this, but it could be minimised if an
Independent Welfare Provision were created to monitor and have
oversight of the process.
A man was detained at work. His marriage had
broken down a few weeks before and his wife had left him as sole
carer of their 18 month old child. He employed a child-minder
during his working hours but was detained at work. Immigration
didn't know of the child and didn't accept his protests. He has
now been in detention for over a month. (Documentation is available.)
Separation from children
V Family—distressed couple who had been
brought to the Removal Centre prior to removal. Immigration officials
had forcibly separated them from their seven year old son and
they had no knowledge of his whereabouts, or indeed if he would
accompany them on their flight that evening. Our staff spent considerable
time tracing the son to Heathrow Airport, where he was to be re-united
with his parents prior to removal. It seems unjustified to separate
a child from his parents for any length of time, especially without
adequate assurance being given to the parents of their child's
safety.
Speed and separation of family members
A was detained when signing. Detained on a Wednesday
and given a removal date for the following Tuesday—three
working days notice. His wife was seven months pregnant with severe
complications and spent the night after A was detained in hospital.
The couple's two year old child had to be cared for by social
services at home.
ARRIVAL BACK
IN THE
COUNTRY OF
ORIGIN
AVID does have concerns about those who have
been detained and returned to countries where there might be retribution.
This is tremendous anxiety about returning home eg escorts may
notify authorities see Loss Prevention International.
eg Notification of escorted persons is always
given to the airline carrying, the airport authorities, immigration
and police at any transit points.
Documents are another source of anxiety. We
understand that there are no distinct stamps on the documents
to indicate a failed asylum case and all travel and personal documents
should be handed back to the person before disembarkation. This
procedure should be looked at again eg testimonies 256—on.
There are claims of returnees having to pay
bribes; sometimes remaining in prison until they or someone else
can pay the return fare. In some instances the local Church has
been able to keep a watching brief and liaise, but it is a haphazard
affair and one that requires some further thought. It is not acceptable
to return someone without having any thought to their immediate
situation on arrival, especially if it is common knowledge that
bribes and imprisonment are possible consequences.
Detainees are not currently eligible to access
the range of Assisted Voluntary Returns Programme, such as the
Voluntary Assisted Returns and Reintegration Programme which can
be accessed outside of detention and only on a volunteer basis
through International Organisation of Migration and Immigration.
Information about these programmes is not available
within Removal Centres.
We recommend that this package is looked at
again and extended to include detention establishments.
In default, many visitor groups and individual
members give cash to the detainee to help sums of £20 are
small but can help.
We would also like to draw to the committee's
attention that no one should be returned to a country where as
yet no Cessation Clause has been announced by the UN in respect
of areas of conflict.
ROUNDING UP
There are no published statistics on the rate
of absconsions. MPs could ask the Minister to publish such statistics.
VOLUNTARY ASSISTED
RETURN PROGRAMMES
How does it all work?
Through the co-operative work between organisations
like IOM and immigration—VARRP—is one example but
I understand there are several programmes which the Immigration
Service facilitate.
VARR—No hard cash goes with the volunteer
but efforts are made to help reintegration by way of:
— setting up schemes, in rural areas,
which benefit the wider community this follows the volunteer;
— sometimes finding employment for
the volunteer.
STATEMENT
AVID members visit immigration detainees, regardless
of their status. They hear and act on the information imparted
by detainees who are in difficult circumstances, with shattered
aspirations. Our interest here is to alert you to the indications
that there are serious risks in the present system of, at best,
misunderstandings and, at worst, serious abuse.
Our contribution to the enquiry is anecdotal
because, for many of the points raised in discussion, there are
no available statistics to us nor to any other organisation that
would clarify the precise position. The evidence we are presenting
is a collation of evidence from our membership. It is necessarily
a fraction of the daily experiences of those being detained or
removed. We are very clear that we do not claim to be a party
to all the circumstances of each particular situation.
We make the following recommendations that could
be investigated by the Home Affairs Select Committee beyond the
remit of this enquiry:
— The extent to which the initial assessment
and decision-making process can be improved and particularly,
what checks and balances might be incorporated into the system
from the very start.
— Alternatives to detention should
be explored, using detention only if absolutely essential and
for the sole purpose of effecting removal. It is worth noting
that most removals are effected without detention.
— "Indefinite Detention"
for failed asylum applications should be abolished. A time limit
should be set.
— The aim should be for the whole process
to be completed within a strict timetable to include thorough
assessment and automatic bail hearings with external oversight
of the process.
— The creation of independent Welfare
Officer to monitor and operate within and outside of the Removal
Centres, could help resolve many of the difficulties both detainees
and immigration officials encounter at the point of Removal.
— Enlarging and re-focussing the scope
of Home Office statistics could make a significant contribution
to verifying and clarifying anecdotal evidence, bringing transparency
and scrutiny of the process of detention and Removal.
February 2003
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