Written evidence from Bail for Immigration
Detainees (BID) (PB 27)
EXECUTIVE SUMMARY
1. Foreign nationals currently comprise around
14% of the total prison population. Foreign national ex-offenders
form an increasingly significant cohort of the immigration detention
population in terms of absolute numbers, and in terms of in the
difficulties they face in securing release on bail and that UKBA
seems to have in removing them from the UK. Around 40% of all
immigration detainees have a criminal conviction.
2. BID has concerns about:
(i) Failures on the part of the Probation Service
to properly and fully discharge their responsibility to foreign
nationals to carry out end-of-sentence risk assessments and planning
as it would for UK nationals completing a custodial sentence.
(ii) Failures on the part of the Probation Service
to ensure that evidence relating to assessments of risk of harm
and reconviction for foreign national prisoners is automatically
made available to all parties to decisions to detain or continue
to detain foreign nationals under immigration act powers whether
in prison or the immigration detention estate, as well as those
subject to these decisions.
(iii) The consequences of these failures for
foreign national ex-offenders held in immigration detention which
include barriers to lodging bail applications and being able to
adequately make a case for release, as well as, prolonged, costly
and possibly unlawful immigration detention.
3. In this submission BID makes a number of recommendations
for specific improvements to policy and procedures on the part
of the Probation Service in relation to foreign national offenders.
INTRODUCTION
1. Bail for Immigration Detainees is an independent
charity that exists to challenge immigration detention in the
UK. We work with asylum seekers and migrants held in removal centres
and prisons to secure their release from detention. In the past
year (2009-10) BID helped 2089 immigration detainees to prepare
and present their own bail applications.
2. BID is concerned that there is a lack of clarity
on precisely which categories of foreign national ex-offenders
the Probation Service retain an interest in for the purposes of
bail address approval, leading to withdrawn bail applications
on the day of hearing at a cost to the public purse. Secondary
to this it appears that there may be regional variations in practice
relating to approval of bail addresses.
3. BID provides free legal advice and information
to detainees to help them exercise their right to liberty by making
their own bail application before an immigration judge if they
have no legal representative. BID provides written materials,
telephone support, and runs workshops inside removal centres and
prisons. We prepare applications for release on behalf of vulnerable
detainees who are unable to represent themselves, in particular
long term detainees, split families, and families with children,
using free assistance from barristers to present the bail application.
4. Drawing on extensive casework experience BID
engages in research, policy and strategic litigation to influence
detention and bail policy and practice to ensure that people deprived
of their liberty are better able to exercise their legal rights,
and to bring an end to indefinite detention. BID sits on a number
of regular policy and operational stakeholder meetings convened
by the Home Office, the Tribunal Service (Immigration & Asylum
Chamber), and the Legal Services Commission. BID makes regular
submissions to parliamentary and other enquiries, and to regulators
of immigration services, the detention estate, and the prison
estate. BID was invited to give evidence, jointly with The Children's
Society, to the Home Affairs Committee on 16 September 2009 on
the detention of children in the immigration system.
5. BID further promotes access to justice for
immigration detainees by identifying long-term detention cases
suitable for Judicial Review and brings together solicitors and
barristers willing to act in such cases. BID also applies to intervene
in High Court appeals where our experience with immigration detainees
can be helpful to the court. Of relevance here is BID's intervention
in A (Somalia) v United Kingdom, a case concerning the long term
detention of former foreign national prisoners (ex-FNPs) under
Immigration Act powers (Application 27770/08) now pending in the
European Court of Human Rights. BID also intervened in SK (Zimbabwe)
v SSHD, UKSC 2009/0022, a case concerning a foreign national ex-offender
who argues that the SSHD's failure to implement his own policy
to conduct regular reviews of decisions to maintain immigration
detention renders such detentions unlawful. Judgement is awaited
in that case.
GENERAL COMMENTS
6. Foreign nationals currently comprise around
14% of the total prison population.[1]
Foreign national ex-offenders form an increasingly significant
cohort of the immigration detention population in terms of absolute
numbers, and in terms of in the difficulties they face in securing
release on bail and that UKBA seems to have in removing them from
the UK. Around 40% of all immigration detainees have a criminal
conviction, and some 90% of BID's clients have a criminal conviction.
7. In BID's experience, where the Home Office
has indicated its intention to deport a foreign national ex-prisoner,
there is an expectation that the individual will be transferred
to immigration detention at the end of their custodial sentence
prior to removal from the UK. As a result foreign national prisoners
are frequently not prioritised for risk assessment as part of
a pre-release plan. Post-sentence immigration detainees therefore
frequently do not have access to Probation Service documents that
could otherwise help them argue their eligibility for bail in
front of an immigration judge.
8. Removal from the UK may take several months
to arrange, or there may be what UKBA calls "general legal
barriers" to removal such as no flights to the country of
origin at the time of detention (eg Somalia at the time of writing).
This is one reason why so many of the people who have spent years
in immigration detention are foreign national ex-prisoners. A
number of foreign national ex-offenders in prolonged immigration
detention are long term UK residents with strong community ties.
Some of these, generally women, were sole carers for their children
prior to their convictions, and these children must often remain
in social service care pending resolution of removal and deportation
issues for their detained parent.
9. Provisions in the UK Borders Act 2007 enacted
in August 2008 removed the discretion of the Secretary of State
over whether to pursue deportation in respect of non-EEA nationals
convicted in the UK who are sentenced to imprisonment for 12 months
or more (24 months for EEA nationals). BID has become increasingly
concerned that where ex-offenders are subject to "automatic"
deportation provisions they are increasingly are becoming long
term detainees at great financial and human cost.
10. Foreign nationals of interest to UKBA who
are held in prison, including those subject to deportation action
as a result of the length of their sentence, are commonly moved
directly from prison to the immigration detention estate either
while their removal or deportation is arranged, or during the
resolution of their immigration status. During their time in detention,
and while they remain in prison post-sentence if held solely under
Immigration Act powers, detainees are entitled to apply for release
on immigration bail.
11. BID has general concerns about insufficient
coordination between agencies of the criminal justice system and
the immigration system. Whereas post-sentence immigration detainees
have experience of both the criminal justice and immigration systems,
the legal representatives, immigration judges, Prison and Probation
Service staff, and immigration officials working on their case
are likely only to know one system or the other, not both. However,
BID is concerned about the apparent lack of planning and provision
for the procedural needs of agencies who now have to work together
closely on transitions from prison to removal centre, and about
the barriers to making and arguing bail applications that are
generated by these failures.
12. The experience of large numbers of foreign
national ex-offenders being held for periods of one or two, or
even three years in the detention estate is relatively recent.
Areas of concern over the cross-agency management of transitions
from prison to the detention estate are only now emerging two
years after the implementation of "automatic" deportation
legislation. However BID already has serious concerns as a result
of our casework in removal centres and prisons about the operation
of risk assessment by the Probation Service and the role of such
assessments in decisions to detain or maintain detention. We believe
that the Probation Service may be running the risk of High Court
action where there is demonstrable failure on its part to adequately
assess risk of reoffending and otherwise prepare for release foreign
nationals subject to deportation or removal action.
BID'S EVIDENCE
13. BID would like to offer evidence on the following
consultation question:
Does the probation service handle different groups
of offenders appropriately, eg women, young adults, black and
minority ethnic people, and high and medium risk offenders?
Failure of the Probation Service to carry out end-of-sentence
reports for Foreign Nationals
14. BID is concerned that the Probation Service
is failing to carry out end of sentence reports and risk assessments
for foreign nationals to the same degree that is required for
UK national offenders. It is BID's experience that end-of-sentence
reports are not routinely carried out for foreign national offenders
with sentences of 12 months or more.
15. This failure has serious consequences for
the ability of foreign national ex-offenders and their legal representatives
to adequately argue for their release on bail in the absence of
considered and up to date information on risk of reconviction
or risk of harm posed to the public on release into the community.
BID believes the consequences of this failure contribute to prolonged
and potentially unlawful immigration detention in many cases,
and the over-representation of ex-offenders among the increasing
numbers of long term and very long term immigration detainees.
16. This failure on the part of the Probation
Service generates unnecessary barriers to release on bail in a
number of ways:
16.1 At present UKBA are able to routinely argue
in immigration bail hearings that bail applicants with criminal
convictions are highly likely to reoffend without having to adduce
any evidence and without any regard for the nature of the offence.
Where UKBA cannot or do not obtain OASys reports their internal
guidance suggests reliance on caseowners' own assessment of the
risk of reoffending in a particular case, which may in turn rely
on out of date risk assessments made at the time of sentencing
and gives no consideration to possible salutary effects of the
prison service and changes in circumstance or behaviour that may
have occurred since the start of the custodial sentence.[2]
16.2 Without up to date risk assessments produced
at or near release by the Probation Service it is more difficult
for detainees and their representatives (if they have one) to
adequately argue the case for release on bail. As a result a number
of detainees who do not in fact pose any sort of risk may be unnecessarily
and possibly unlawfully detained.
16.3 At present we understand the Probation Service
will provide their end of sentence reports to representatives
and courts if requested. However a significant proportion of immigration
detainees have no legal representation for their immigration issues
and cannot be expected to know of the existence of Probation assessments.
Accurate and up to date Probation Service assessments will enable
detainees to adequately represent their case for release, whether
legally represented or not, and we believe would also be of use
to UKBA caseowners and Section 4 bail team staff.
16.4 BID understands that when a bail hearing
is listed NOMS is required to complete a risk assessment pro-forma
which is sent to UKBA's Criminal Casework Directorate and to the
Tribunal centre where the case will be heard. A copy of the OASys
summary relating to the bail applicant is also available at the
relevant regional probation office. Since 1 November 2006 it has
not been a requirement for Probation Areas to provide separate
information to the appellant's representative.[3]
It is of concern that these assessments are not automatically
provided to detainees or their representatives in advance of the
hearing to enable them to be entered separately as evidence in
support of arguments for release in bail hearings.
16.5 While recognising that the criminal justice
system and UKBA need to define and assess risk of harm for their
own distinct purposes, BID believes it is essential that Probation
Service evidence relating to ex-offenders must automatically be
made available to detainees and their representatives to enable
release on immigration bail wherever possible and avoid costly
and damaging long term detention. It is BID's experience that
where Probation evidence is made available to UKBA, the Probation
Service assessments of risk of reoffending and harm to individuals
may directly contradict those separately produced and submitted
to immigration tribunal bail hearings by UKBA.
eg BID's Oxford office report
that in August 2010 the Home Office argued against release on
bail for a Campsfield IRC detainee with a three year sentence
for a drug related offence, noting that he had been "assessed
as being a medium risk of re-offending … [and] assessed as
being a high risk of harm due to the seriousness of his offence
and the assessment on the Harm Matrix". However, the Probation
Service had informed BID on request that using OASys and OGRS
risk assessment tools approved by NOMS our client's Offender Manager
had completed an assessment in April 2010 and concluded "likelihood
of re-offending—Low; Risk of harm to Public—Low; Risk
of harm to known Adult—Low; Risk of harm to Staff—Low".
16.6 Failure by the Probation Service to routinely
carry out and provide evidence of end of sentence reports may
impact on how an assessment of the legality of detention is reached
in individual cases.
16.7 It is arguable that failure by the Probation
Service to routinely carry out and provide evidence of interventions
such as end of sentence reports discriminates against foreign
nationals held in UK prisons as a group.[4]
17. BID recommends that end of sentence reports
should be carried out for all foreign national prisoners regardless
of whether they face deportation action and regardless of the
nature of their offence and length of sentence.
18. BID recommends that end of sentence reports
for foreign national prisoners should be provided to the UKBA
caseowner and the Criminal Casework Directorate of UKBA as a matter
of course. This will enable appellants or their representatives
to ask immigration judges to require UKBA to submit these reports
in corroboration of the SSHD's argument in future bail hearings
with the confidence that they will have been provided, and may
reduce discrepancies between assessments of re-offending risk
between the Probation Service and the UKBA.
19. BID recommends that end of sentence reports
should automatically be provided directly to all foreign nationals
as they leave the prison estate for use in immigration bail applications
and other applications for release. This will ensure that unrepresented
detainees have the best chance to argue their own bail case on
up to date evidence relating to re-offending risk.
Failure of Probation Service to approve accommodation
used for bail addresses in a timely fashion
20. Ex- offender immigration detainees seeking
release from detention may need to rely on publicly provided accommodation
as a bail address as part of a package of support for detainees
known as Section 4 (1)(C ) support.[5]
This support is administered by UKBA. Some detainees may be able
to arrange accommodation privately. For foreign national ex-offenders
with certain types of convictions it appears to be necessary for
the Probation Service to approve proposed bail address accommodation,
whether provided under Section 4 or not. This process may include
a determination of whether or not the premises are suitable for
electronic monitoring and will enable the individual to comply
with the terms of any licence in force at time of release from
detention, consideration of any victim issues, and arrangement
for MAPPA meetings to take place if required.
21. In a number of bail applications immigration
judges are now requesting confirmation from detainees or their
representatives on the day of hearing that a bail address has
been approved by the Probation Service. BID is concerned that
there is a lack of clarity on precisely which categories of foreign
national ex-offenders the Probation Service retain an interest
in for the purposes of bail address approval, leading to withdrawn
bail applications on the day of hearing at a cost to the public
purse. Secondary to this it appears that there may be regional
variations in practice relating to approval of bail addresses.
22. It is BID's experience that Probation Service
teams do not respond quickly to such requests, thus depriving
a number of detainees of their liberty who might otherwise have
been released, and presenting an obstacle to ex-offenders' attempts
to access their immigration bail rights. BID finds it hard to
believe that UK national offenders at the end of their custodial
sentence would be kept in prison for significant periods of time
while the Probation Service confirmed the suitability of any proposed
accommodation on release.
23. A number of foreign national ex-offenders
spend longer in immigration detention on release from prison than
they served for their offence. There are many factors contributing
to this for which many agencies must take responsibility. The
failure of the Probation Service to approve bail addresses in
a timely fashion is one such contributory factor.
24. BID recommends that the Probation Services
ensures a consistent approach throughout the service to the manner
in which it's responsibility for and interest in accommodation
issues relating to foreign national ex-offenders who apply for
release from detention on immigration bail are discharged. These
responsibilities should be discharged in a timely manner that
is mindful of ongoing deprivation of liberty for these individuals.
25. BID recommends in respect of foreign nationals
offenders that are transferred to the detention estate on release
from prison, that Probation Service guidance on the categories
of offender in which they retain an interest in relation to bail
address approval or otherwise, be made publicly available.
26. BID recommends that the Home Office and Ministry
of Justice and their subsidiary agencies jointly address the training
needs for people working with this group of immigration detainees
that links together the two jurisdictions.
September 2010
1 Source: HM Prison Service. Available at
http://www.hmprisonservice.gov.uk/adviceandsupport/prison_life/foreignnationalprisoners/
[accessed 9 September 2010] Back
2
UKBA, Enforcement Instructions and Guidance, (Section 55.3.2.8,
Chapter 55). Available at
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/chapter55?view=Binary
[Accessed 9 September 2010] Back
3 Source:
Probation Circular PC32/2007-Management of foreign national prisoners:
licences, bail hearings, releases from immigration detention and
deportation. Probation Service, October 2007. Available at http://www.probation.homeoffice.gov.uk/files/pdf/PC32%202007.pdf
[Accessed 9 September 2010] Back
4
The National Probation Service as a public authority is subject
to a group of public sector duties (PSDs), including the race
equality duty introduced into legislation in the Race Relations
(Amendment) Act 2000, that place on them a number of legal obligations
in respect of the need to eliminate unlawful racial discrimination
and promote equality of opportunity in relation to functions and
policies. 1976). Back
5
Section 4(1)(c) of the Immigration & Asylum Act 1999 outlines
the role of the government in provision of accommodation for persons
leaving immigration detention. Back
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