APPENDIX 12
Memorandum submitted by Bail for Immigration
Detainees
1. INTRODUCTION
This memorandum has been specifically prepared
for the Inquiry by BID, a registered charity that prepares and
presents free bail applications on behalf of those detained under
Immigration Act powers. BID also carries out information and research
work on the policy and practice of immigration detention in the
UK. BID has offices in London, Portsmouth and Oxford and makes
bail applications for those held at any of the detention centres
in the UK. BID was established in 1998 since which time we have
presented over 500 bail applications. BID has a membership of
150 supporters and donors.
2. BID'S REMIT
BID does not represent detained asylum seekers
and migrants in the matter of their substantive asylum application.
However, from our casework we are aware of the issues facing detained
asylum seekers and migrants who are facing removal.
3. THE RELATIONSHIP
BETWEEN IMMIGRATION
REMOVAL AND
THE USE
OF IMMIGRATION
DETENTION
BID's view is that it is essential to consider
the use of immigration detention in the context of removals. There
is clearly a link between the government policy of using immigration
detention and the policy on removals. Our concern is that the
use of immigration detention in its current form obscures the
reality of the process of removal, making it extremely difficult
to assess whether removals are being conducted as humanely as
possible and with due, independent, regard to any compassionate
factors in the particular case. The pursuance of a removal "target",
whether explicitly stated as a figure per month, or implicit in
the whole emphasis of the asylum process, is impacting upon the
way in which removals are attempted and indeed upon who is detained
in the first place. This is resulting in the removal of individuals
and families without proper legal advice or adequate representation,
without consideration of compassionate factors; in short without
due process. If removal becomes the overriding goal in immigration
control, rather than a fair consideration of the case, there is
a risk that detention will be employed for vulnerable people ie
detention criteria which state that vulnerable people are normally
unsuitable for detention other than in exceptional circumstances
are being overridden. This is illustrated by the frequent use
of detention for those acknowledged to be suffering mental illness
and survivors of rape and torture. Detention in these cases is
not being employed as a "last resort" immediately prior
to removal, but often from arrival.
4. NEW EXPEDITED
APPEALS SYSTEM
FOR CERTIFIED,
DETAINED CASES
The recent practice direction on expedited appeals
leads to a presumption of administrative detention through the
appeals process for those whose cases have been refused at Oakington
and certified as manifestly unfounded. This has been justified
by the Immigration Appellate Authority as facilitating the government's
targets on removals[2]
and is an example of the government's goal on removals undermining
the fairness and independence of the appeals system. It creates
a presumption and process of speedy removal for those refused
asylum by the Home Office while not addressing the unfairness
of the initial Home Office decision making which means that, at
present, significant numbers win leave to remain on some level
of appeal.
5. CONCERNS ABOUT
THE USE
OF DETENTION
It is BID's view 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. Research carried out by South Bank University
indicated that detention is not necessary to ensure that people
maintain contact with the immigration authorities[3].
This wider concern underlies any information or view we give on
removals (more information is contained in BID's submission to
the United Nations Working Group on Arbitrary Detention, September
2002).
6. USE OF
DETENTION FOR
VULNERABLE PEOPLE
Vulnerable groups are detained including children,
pregnant women, those with serious physical and psychological
problems. BID's view is that children and vulnerable adults should
never be detained. Prior to October 2001 the policy on detaining
children allowed only for detention of a few days immediately
prior to removal[4].
That policy has changed to one that permits detention "for
longer periods than immediately prior to removal"[5].
In BID's experience, the impact of this policy shift is that children
in families are being detained for long periods. This is causing
them emotional, physical and psychological harm that is disproportionate
to the objective of immigration control. Families are detained
despite the fact that there is no evidence to suggest that they
would otherwise abscond.
7. THE IMPACT
OF DETENTION
ON THE
ABILITY OF
AN INDIVIDUAL
TO PROGRESS
THEIR SUBSTANTIVE
CASE
There is no time limit on detention and detainees
may spend many months in detention when they have outstanding
rights of appeal. There is little doubt from our experience that
detained asylum seekers have less access to good legal representation
than those who are not detained. For those detained from arrival,
the difficulty in accessing good quality representation is even
more pronounced.
8. CONCERNS ABOUT
THE PROCESS
OF DETAINING
WITH A
VIEW TO
REMOVAL
BID are aware of cases where removal directions
have been served on families who have awaited a final decision
in their case for many months, sometimes years. In such cases,
the decision has been served early in the morning, late at night
or at a weekend and the family is immediately detained, often
experiencing a degree of threat and physical violence in the process.
9. CONCERNS ABOUT
THE PROCESS
OF REMOVAL
We are aware of cases in which removal directions
have been served on the individual on the day of the proposed
removal, without notice being given to the solicitors. This results
in individuals being unable to receive legal advice prior to removal.
10. LENGTHY DELAYS
IN REMOVAL
TO CERTAIN
COUNTRIES
No statistics are collected as to the overall
periods spent in detention by each detainee, but in BID's experience
there are lengthy delays in removals to certain countries that
result in long periods of detention. In particular, prolonged
detention may occur whilst waiting for the Home Office to obtain
travel documents from Indian, Pakistani, Chinese and Algerian
authorities. Instructions to immigration officers enjoin them
to remember that in all cases detention must be for the shortest
possible time[6].
However this instruction carries no practical compulsion and has
failed to prevent the Immigration Service from employing administrative
detention for prolonged periods. Detention periods of six months
are not uncommon, and in some cases that BID is 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. Concern about this situation was expressed in the Concluding
Observations of the Human Rights Committee when monitoring the
UK's compliance with the International Covenant on Civil and Political
Rights (ICCPR) in 2001[7].
11. TRANSPARENCY
It is important to note that significant numbers
of those detained are not removable. It is a matter of regret
that the Government does not produce statistics as to the status
of those detained. In BID's view, without consistent and regular
disclosure of statistics, it is not possible to scrutinise or
publicly account for the use of detention. Until these issues
and those raised above are addressed, it is not possible to assess
whether the government's targets on removal are appropriate or
realistic.
12. RE -NAMING
OF DETENTION CENTRES
AS REMOVAL CENTRES
In BID's view this change will mislead public
opinion and generate further misunderstanding as regards the composition
of the detention estate. In addition, for those detained at any
other stage than immediately prior to removal, the knowledge that
they are held in a removal centre will cause alarm and distress
and further undermine the transparency and credibility of the
asylum system.
October 2002
2 Practice Direction Consultation; Expedited, Fast
& Standard Tracks, 1 August 2002. Back
3
"Maintaining Contact: what happens after detained asylum
seekers get bail?". Bruegel & Natamba, South Bank University,
Social Science Research Papers, June 2002. Back
4
Operation Enforcement Manual, Chpt 38.7.3.2. Back
5
White Paper, Secure Borders, Safe Haven, February 2002, para 4.77. Back
6
Operational Enforcement Manual, Chapter 38.1 (last published and
disclosed July 2001). Back
7
ICCPR Concluding Observations of the Human Rights Committee, 2001
"Asylum seekers have been detained in various facilities
on grounds other than those legitimate under the Covenant, including
reasons of administrative convenience. The Committee notes, moreover,
that asylum seekers, after final refusal of their request, may
also be held in detention for an extended period when deportation
might be impossible for legal or other considerations". Back
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