Session 2013-14
Immigration Bill
Written evidence from the Dover Detainee Visitor Group Detention Support Project (IB 35)
Summary
1. The response provided in this memorandum is based on casework evidence from the 600 clients we support each year. Based on our clients’ experiences, we would suggest that the Immigration Bill 2013-14 would deliver an immigration system in which the potential for poor quality and outright erroneous decision making is enshrined in Statute.
2. The British public are asked in this Bill to stomach a number of burdensome invasions in everyday transactions with fellow citizens, ostensibly in pursuit of immigration controls. Immigration officials, however, are tasked with no such careful weighing of interactions with citizens – sanctioned to abrogate their responsibilities by limiting challenges to detention and removal from the UK. For these reasons we are concerned that we will see more clients detained unlawfully, at devastating cost to their lives and those of their families, and at unnecessary expense to the taxpayer.
3. This memorandum restricts itself to commenting on those issues in which the Detention Support Project has developed most expertise in providing direct emotional and practical support to clients since 2004: (1) Removal, (2) Bail, and (3) Marriage and Civil Partnership.
1. Removal [1]
4. We are concerned about the lack of clarity of Clause 1 of the Bill in its new provision for administrative removal, including of British and EEA citizens. [2] We regularly meet clients subject to, what turn out to be, erroneous decisions to remove them from the UK, including clients who are accused of violating conditions of their leave to remain. For example, one of our clients on a student visa was arrested while shopping in his local shop. He was accused of working in violation of his visa, but eventually a legal representative was able to show there was no evidence of this individual having worked. Like many of our clients, this individual was subject to arrest, search, force and detention. Based on our clients’ experiences we would suggest the former UK Border Agency often gets decisions about administrative removal wrong. As such, any new Immigration Bill should introduce a more measured approach to administrative removal, particularly in giving immigration officials time and space to work on their caseload, rather than strengthening a power to issue decisions to remove with even less accountability for mistakes in decision making.
II. Bail [3]
5. Given the high numbers of clients we see who have been issued with removal directions, even as their Home Office caseworker has written to them stating that they are still working on arranging emergency travel documents, we are concerned by the Bill’s introduction of bail hearings subject to the SSHD’s permission in cases where removal directions have been issued for removal within 14 days.
6. After successive failed attempts of removing one of our clients, he was recently flown to two different States during the same trip, the UK requesting each State in turn to admit him. Both States refused. This client fled a war some ten years ago. Removal directions are regularly set in his case, even as his Home Office caseworker acknowledges there is little prospect of arranging for travel documents or even for a particular State to admit this client. Meanwhile, this client has been detained for 15 months for the purposes of removal, while his British wife and son await his release. This case study, one of many, suggests to us that the presumption in favour of liberty should be strengthened by any new Immigration Bill.
7. Requiring permission of the defendant SSHD about whether or not to have a case put against it in bail hearings would seem to defy the rule of law. Given that immigration detention is not subject to automatic oversight, our clients have to be able to access the courts.
8. The impact of detention on our clients’ physical and mental health should not be underestimated. Home Office caseworkers frequently write to our clients in terms of their detention not having reached an inappropriate length of time (which must necessarily be the case in light of the UK being the only EU Member State not to have a time limit on immigration detention). However, even after a matter of days or weeks in detention, high numbers of our clients experience insomnia, depression, stress-related illness, a loss of autonomy and anxiety for family members and dependants. Relatively lower numbers, but still a sizeable percentage of our clients, self-harm and attempt suicide when faced with loss of their liberty. The length of detention is not necessarily a determining factor in incidents of clients self-harming and suicide attempts, although there is a correlation between length of detention and self-destruction.
9. Depriving an individual of their liberty can devastate their life and is one of the most egregious interferences of the State with its citizens. Individuals have to be able to appeal an original decision to detain them, in light of the lack of progress made by the former UK Border Agency in their cases. For this reason, we are concerned by the notion of a ‘material change of circumstances’ as a burden that must be met by a potential appellant in order to secure a bail hearing. Our clients are detained on the basis that they are to be imminently removed from the UK. However, weeks, months, and for a number of our clients, even years, pass without the former UK Border Agency making progress in effecting removal.
10. Taken together with the changes to Legal Aid introduced in April 2013 - which restrict immigration detainees’ access to legal representation on a number of issues, including family cases - we are concerned that our unrepresented clients will be barred from demonstrating progress in their substantive immigration cases. As such, clients will be unable to meet the burden to demonstrate a change in circumstances, so as to challenge their detention on the basis that the former UK Border Agency is continuing to fail in effecting a change of circumstances - i.e. removal - rendering detention unlawful.
III. Marriage and Civil Partnership [4]
11. We have seen increasing numbers of clients who are detained having been accused of participating or attempting to participate in a sham marriage.
12. We recently met a third country national detainee married to an EEA citizen working in the UK. Despite providing their marriage certificate, this individual was detained for three months because he did not have ‘legal recognition’ of his status as the family member of an EEA citizen. This individual was able to afford legal representation and his legal representative was able to secure his release by the former UK Border Agency, because a certificate of recognition of EEA status is precisely that; an acknowledgement of free movement rights and not a grant of rights. The distinction between legal recognition and a legal right to be in the UK was evidently lost on the decision maker in this case. Subject to legal advice, the detainee will now be open to pursue an unlawful detention claim, if he can fund the action.
13. We would suggest that the kind of interference with marriages and civil partnerships envisioned by the Bill – such as referral of all marriages involving a non-EEA citizen to the SSHD to decide whether to impose a further notice period or conditions - is disproportionate interference by the State in the private affairs of its citizens. The SSHD has repeatedly failed to demonstrate a justification for such disproportionate interference. [5] Moreover, as the above case study demonstrates, we would suggest the UK public cannot have confidence in the decision making of the former UK Border Agency, to identify points of European law accurately - and by extension other grounds for detention. As ILPA writes,
‘[i]n the most recent consultation on the topic the UK Border Agency suggested that indicators included the age of the sponsor and the applicant at the time of the wedding; the nature of the wedding ceremony; whether the sponsor has previously been sponsored for a marriage or civil partnership visa or sponsored a marriage or civil partnership application and whether the applicant had a history of compliance with immigration law, none of which, we suggest, are reliable indices of a marriage of convenience’. [6]
14. Based on our clients’ experiences, we believe the Immigration Bill is misguided in granting administrative powers of interference to decision makers who consistently misapply their own guidance on EEA family members, particularly when the consequence is deprivation of liberty.
November 2013
[1] (Part 1 Clause 1 and Schedule 8 ).
[2] ILPA Briefing available at http://www.ilpa.org.uk/data/resources/21111/13.10.22-ILPA-Briefing-Immigration-Bill-HC-2R.pdf (last accessed 11 Nov 2013).
[3] Clause 3 and Schedule 8.
[4] Part 4 and Schedules 4, 5 and 8.
[5] R (Baiai and others) v SSHD [2008] UKHL 53; O'Donoghue and others v UK (Application no. 34848/07); R (Quila) v SSHD [2011] UKSC 45.
[6] See ILPA, ‘UK Border Agency: Family Migration: A Consultation Response from the Immigration Law Practitioners Association’, available at http://www.ilpa.org.uk/data/resources/13813/11.10.13-Family-Migration-response.pdf (last accessed 11 Nov 2013).