3. Memorandum submitted by Bail for
Immigration Detainees
SUMMARY
1. Bail for Immigration Detainees (BID)
is a registered charity that exists to improve access to bail
for asylum seekers and migrants detained under Immigration Act
powers.
2. BID's submission focuses on detention
policy and conditions and makes some brief points regarding reporting,
investigating and punishing immigration offenders and immigration
statistics.
Reporting, investigating and punishing immigration
offenders
3. BID raises concerns about the use of
prisons for immigration detainees, and the difficulties faced
by asylum seekers prosecuted under S2 of the 2004 Asylum and Immigration
(Treatment of Claimants etc.) Act.
4. BID recommends that the issue of the
detention of foreign nationals post sentence be considered in
some detail and that the IND take proactive steps to ensure that
access to legal representation on immigration issues is considered,
working in partnership with the Prison Service and the Department
for Constitutional Affairs.
Detention policy and conditions
5. Access to bail procedures: BID urges
the Committee to revisit the issue of an automatic bail hearing
at three months, in light of the Home Office Five year strategy
and the increase in capacity of the removal estate. BID draws
attention to recent criticisms about lack of automatic, independent
scrutiny by the Commissioner for Human Rights of the Council of
Europe and the UNHCR.
6. Development of detained fast track procedures:
BID highlights concerns about the speed, fairness and scrutiny
of detained fast track processes, in particular the lack of access
to bail for fast track detainees, despite long delays in removal.
BID calls for an automatic review of detention to be provided
to detainees in the fast track, and for the speed of the procedure
to be balanced by automatic representation at appeal, without
the application of a merits test for public funding.
7. Detention of children in families: BID
highlights the increase in the use of detention for families,
and the lack of progress in implementing welfare assessments at
Yarl's Wood IRC. BID raises concerns about the lack of independent
scrutiny of child detention, not addressed by the Ministerial
authorisation mechanism. BID also draws attention to the inadequacy
of internal review mechanisms, an issue criticised repeatedly
by HM Inspectorate of Prisons.
8. Health needs of detainees: BID refers
to joint research with Medecins Sans Frontie«res-UK which
highlights failings in the health care of detainees.
9. Rising levels of distress, violence and
racism in the detention estate: BID draws attention to recent
hunger strikes, a rise in self-inflicted deaths by detainees,
evidence of racism and abuse documented by the BBC in "Detention
Undercover", and evidence about the level of violence
used in removal attempts.
10. Statistics: BID highlights the lack
of progress on publication of detention statistics since the Home
Affairs Committee report in May 2003. BID calls for greater transparency
about the use of detention.
INTRODUCTION
1. Bail for Immigration Detainees (BID)
[10]is
a registered charity that exists to improve access to bail for
asylum seekers and migrants detained under Immigration Act powers.
BID's key activities are:
— Providing free information and support
to detainees to help them to exercise their right to liberty and
represent themselves in bail applications before Immigration Judges.
— Preparing and presenting free applications
for release for detainees who are unable to represent themselves,
in particular families, using free assistance from barristers
to present the bail application.
— Working to influence detention policy
and practice, including through research.
— Sharing and encouraging best practice
with the legal profession, for example through the Best Practice
Guide to Challenging Immigration Detention written by BID
and published jointly with ILPA, the Law Society and the Legal
Services Commission.
REPORTING, INVESTIGATING
AND PUNISHING
IMMIGRATION OFFENDERS
2. BID is concerned about the number of
foreign national prisoners who remain detained solely under Immigration
Act powers at the end of their sentence. Official statistics for
the last quarter show 170 people were detained under Immigration
Act powers in prisons. [11]Their
detention is indefinite, and this double punishment effectively
goes beyond punishment meted out by the courts in response to
a recognised offence.
3. In addition, BID is concerned that asylum
seekers are being unduly penalised under S2 of the 2004 Immigration
and Asylum Act because they are i) not able to pursue their asylum
claim effectively due to the lack of access to legal representation
from prison, and ii) may remain in prison once their sentence
has finished under Immigration Act powers, unable to exercise
their right to apply for bail or simply unaware of it.
4. BID recommends that the issue of the
detention of foreign nationals post-sentence be considered in
some detail and urge the IND to take proactive steps to ensure
that access to legal representation on immigration issues is considered,
working in partnership with the Prison Service and the Department
for Constitutional Affairs.
DETENTION POLICY
AND CONDITIONS
5. BID's primary concern is the lack of
accessible legal safeguards to protect those detained under Immigration
Act powers from unnecessary, prolonged and sometimes arbitrary
detention.
6. Since the Home Affairs Committee examined
the issue of immigration detention in their inquiry into asylum
applications in January 2004, the detention estate has further
expanded, with the latest official snapshot on 24 September 2005
showing 2,220 people detained, 955 for longer than one month (and
over a year in 55 cases).
7. Controlling our borders: A Five Year
Strategy for Asylum and Immigration published by the Home
Office on 7 February 2005 sets out plans to increase the use of
detention with the aim of removing more people each month than
the number of new unfounded claims received, and increasing the
use of fast-track processes based on detention. In the strategy,
the Prime Minister writes ". . . we will move towards the
point where it becomes the norm that those who fail can be detained."
BID is dismayed that the size and function of the detention estate
has been considerably expanded without a commitment to ensure
that the rights of those detained are balanced fairly with the
objective of immigration control and an increase in removals.
ACCESS TO
BAIL PROCEDURES
8. The report of the Committees' inquiry
into Asylum Removals, published in May 2003, considered the issue
of detention in the context of removal processes. The Committee
rejected calls for an automatic bail hearing at the point of detention
but conceded that "there may be a case . . . for giving anyone
detained longer than, say, three months and automatic bail hearing
at that point." (Rec Q, p 39) The Government disagreed on
the grounds that "The majority of detainees are able to apply
to be released on bail at any time to a Chief Immigration Officer,
the Secretary of State, or an Adjudicator." [12]
9. BID is disappointed that the Committee
took the view that an automatic opportunity for bail was not necessary.
We believe that three months of detention is a very long period
to wait for an opportunity to go to court to challenge your detention.
However, in the current climate, we believe that an automatic
hearing at three months would be preferable to none at all.
10. Last year, BID was contacted by more
than 1,200 detainees—proof that detainees are not easily
able to challenge their detention through elective bail processes.
Many of those contacting BID were torture survivors, children,
women who have been raped, and people with serious health needs.
BID urge the Committee to revisit the issue of bail.
11. We would draw the attention of the Committee
to the recent comments by the UNHCR regarding the need for an
automatic bail hearing, and the recent comments made by the Council
of Europe's Commissioner for Human Rights, Mr Alvaro Gil-Robles.
12. Mr Gil-Robles found the reasons provided
to detainees by the immigration officer at the time of the decision
are "at best cursory and the explanation of bail rights technical
and perfunctory." His report states: "The possibility
of effectively contesting one's detention is all the more important,
as it is indefinite and subject only to internal administrative
review. It is not entirely clear what form this review takes—the
Home Office guidelines refer only to the need to keep detention
"under close review to ensure that it continues to be justified."
. . . It is not acceptable . . . that such lengthy detention should
remain at all times at the discretion of the immigration service,
however senior the authority may be. It seems to me that there
ought, at the very least, to be an automatic judicial review of
all detentions of asylum seekers, whether failed or awaiting final
decisions, that exceed three months and that the necessary legal
assistance should be guaranteed for such proceedings." [13]
13. The UNHCR Comments on the 2005 Immigration
and Nationality Bill also express concern at "the current
lack of judicial oversight in detention decisions", stating
that ". . . UNHCR considers that the burden—both substantive
and procedural—should be on the immigration authorities
to substantiate the necessity and proportionality of an individual's
detention, rather than on the asylum seeker to demonstrate the
grounds on which he or she should be released . . . In order to
ensure the compatibility of the UK Government's policy with international
standards, and UNHCR recommendations, UNHCR urges for the re-introduction
of Part III of the 1999 Asylum and Immigration Act to the IAN
Bill 2005 to be considered, or for the adoption of a similar policy
to ensure that a bail hearing is automatically triggered in relation
to any asylum seeker, once a specified reasonable and proportionate
period of time is passed in detention (eg two weeks)."
THE DEVELOPMENT
OF FAST
TRACK PROCEDURES
14. An increasing number of men and women
detained at Harmondsworth and Yarl's Wood Immigration Removal
Centres under the Asylum and Immigration Tribunal (Fast Track
Procedure) Rules 2005 are making contact with BID and complaining
about the injustice of the procedure.
15. Detainees have complained to BID that:
— There is a lack of good quality legal
representation.
— The speed of the procedure does not
allow them to gather evidence to support their application, or
properly instruct their legal representatives.
— That many of them are left without
representation at appeals as the legal representatives say they
cannot use public funding due to the lack of merit in the case.
— Some spend many weeks, or even months,
in detention awaiting removal after unsuccessful appeals.
— Despite the fact that removal is
not imminent, they are unable to apply for bail because they are
unaware of the procedure and do not have legal representation.
(Figures obtained by BID from the AIT show that very few bail
applications are being presented—as few as 10 detainees
out of potentially 1,100 had had bail applications made on their
behalf).
16. BID believe there must be an automatic
review of detention provided to detainees in the fast track, and
that the speed of the procedure should be balanced by automatic
representation at appeal, without the application of a merits
test for public funding.
THE DETENTION
OF CHILDREN
IN FAMILIES
17. The Government broadly accepted the
recommendation made by the Committee in May 2003 that "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".[14]
The Minister provided details of measures which the Government
proposed to take in relation to children in detention, namely
(i) express ministerial authorisation for detention beyond 28
days, (ii) appointment of a senior IND official to oversee cases
of detained children, and (iii) improvements to the procedures
for assessing welfare and educational needs of children. [15]However,
since the Committee last examined this issue, the detention capacity
for families has increased to more than 250 beds and little progress
has been made on aspects of the above commitments.
18. BID's experience of working with detained
families demonstrates a gulf between stated policy and practice
in the removal centres. BID believes that existing internal mechanisms
for reviewing child detention are not effective in protecting
children's rights and do not comply with international or domestic
human rights principles.
19. Ministerial authorisation: The requirement
for the "express authority of the immigration minister"
announced on 16 December 2003, in order to maintain detention
after 28 days does not meet the UK's domestic and international
obligations towards children and is no guarantee that the rights
of the child will be upheld. In particular, BID is concerned that
families are not informed that a review of their detention is
taking place and the reasons for the outcome are not communicated
to them.
20. Welfare assessments: After some considerable
delay, welfare assessments were established at Dungavel and Oakington,
but the former now has a 72 hour limit on detention and the latter
closed the family unit in October 2005. In the main family centre,
Yarl's Wood, a Social Services welfare assessment at 21 days is
still not occurring, nearly two years on from the ministerial
announcement. BID question how the ministerial review can take
place in the absence of an assessment of the child's needs?
21. Senior internal authorisation of detention:
HMIP published reports of inspections of Dungavel and Tinsley
Immigration Removal Centres in May 2005 which are damning about
the failure to protect children and safeguard their welfare. The
reports stress that no progress had been made in relation to independent
assessment of the welfare and developmental needs of children,
and that the internal procedures laid down for detaining children
were not being followed. The HMIP report on an announced inspection
of Oakington Immigration Reception Centre 21-25 June 2004, which
was published on 9 November 2004, was damning of the failures
of the additional review mechanisms that are supposedly in place
for reviewing family detention: "We also found that the mechanisms
for deciding to detain children, and reviewing their detention
and developmental needs, were not sufficiently robust. Under IND's
own instructions, the detention of children is always a sensitive
matter and should be decided at senior level (by an Assistant
Director). We saw no evidence of such authorisation, and indeed
on-site staff appeared unaware of the need for it [emphasis
added]. The instructions also require regard to be given to Article
8 of the European Convention on Human Rights: again, we saw
no evidence that a balancing exercise between the necessity of
detention and the welfare of the child had been carried out."
THE HEALTH
NEEDS OF
DETAINEES
22. BID's concerns about the unmet health
needs of detainees were documented in a joint project with Me«decins
Sans Frontie«res-UK in 2004-05. Fit to be detained? Challenging
the detention of asylum seekers with health needs by BID was
published in May 2005. The report is based on the cases of 13
adults and three children with health needs, held in UK prisons
and IRCs for periods ranging from 40 to 720 days (an average of
250 days). It includes findings of a report on the health and
medical needs of these 16 BID clients by the independent humanitarian
medical agency Me«decins Sans Frontie«res. MSF were
concerned about the health status of the individuals they medically
examined, and the apparent lack of mechanisms in place to ensure
that members of this vulnerable population are afforded the medical
care and protection they need. The health and medical needs
of immigration detainees in the UK: MSF's experiences by MSF
(published as an Annex to BID's report) raises concerns as to
the health status of detainees visited and the apparent lack of
mechanisms to ensure that vulnerable individuals receive the medical
care and protection they need during the detention process.
LEVELS OF
DISTRESS, VIOLENCE
AND RACISM
IN THE
DETENTION ESTATE
23. The number of self-inflicted deaths
in immigration detention has significantly increased—seven
immigration detainees took their own lives between January 2003
and September 2005, yet there were only four such deaths between
1989 and 2003. The most recent death occurred on 15 September
2005, when Manuel Bravo from Angola apparently took his own life
in the family unit at Yarl's Wood Immigration Removal Centre,
where he was detained with his 13 year-old son.
24. There have been several hunger strikes
in Immigration Removal Centres, in response to the planned removal
of Zimbabweans and Ugandan rape survivors, for example.
25. Two inquiries have been undertaken by
the Prison and Probation Ombudsman, Stephen Shaw, into undercover
stories by the Daily Mirror and the BBC into levels of
violence, racist and sexist abuse and intimidation by guards and
escorts.
26. Reports by the Medical Foundation and
the Institute of Race Relations have documented the level of harm
done to detainees during forced removal attempts. These reports
are consistent with BID's experiences. [16]
IMMIGRATION STATISTICS
27. The report of the Committees' inquiry
into Asylum Removals, published in May 2003, recommended that
IND provide quarterly figures on total numbers detained during
the period with lengths of detention. [17]To
date, no figures have been made available of this nature.
28. The report of the Joint Committee on
Human Rights into the 2002 Nationality, Immigration and Asylum
Bill (now Act) stated that "safeguards are meaningful and
effective only if appropriate legal advice and information are
available to detainees"[18]
and concluded that "these matters should be carefully monitored
. . . [as the] effectiveness of safeguards for the human rights
of detainees." However, there are no regular publication
of figures relating to the number of detainees who apply for release
on bail, judicial review or habeas corpus. The Government have
not taken steps to collect or monitor the effectiveness of safeguards
for detainees. The paucity of information about the numbers of
detainees able to exercise their legal rights was criticised by
the European Human Rights Commissioner following his visit to
the UK in November 2004. [19]
29. BID urges the Committee to examine this
issue in some detail and recommend that the IND work closely with
the Legal Services Commission and the DCA to ensure that this
area is "carefully monitored".
30. BID also calls for improved transparency
regarding the operation of detention policies for families, in
particular regarding the total length of time each child is detained
and the outcome of that detention (release or removal). This call
has been echoed by the Refugee Children's Consortium.
Sarah Cutler
Policy and Research Manager
2 December 2005
10 BID does not receive public or Legal Services Commission
funding. Back
11
Quarterly Asylum Statistics, 24 September 2005. Back
12
Government response to HAC Inquiry on asylum removals, p 10. Back
13
Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit
to the United Kingdom, 4-12 November 2004, Office of the Commissioner
for Human Rights, Council of Europe, 8 June 2005, para 49. Back
14
Goverment response, HC 1006, 18 July 2003, p 10. Back
15
Ev 260, HAC Asylum Applications inquiry, p 69. Back
16
See "Harm on Removal: Excessive Force Against Failed
Asylum Seekers" The Medical Foundation, November 2004. Back
17
Rec "O", p 39, HC654-I. Back
18
Nationality, Immigration and Asylum Bill, Seventeenth Report of
Session 2001-02, House of Lords, House of Commons, Joint Committee
on Human Rights HL Paper No 132, HC 961, p 32. Back
19
Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit
to the United Kingdom, 4-12 November 2004, Office of the Commissioner
for Human Rights, Council of Europe, 8 June 2005, p 42. Back
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