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Select Committee on Home Affairs Written Evidence


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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