Home Affairs Committee

Executive summary

1. Detention is central to the government’s strategy for enforcing removals, so is a critical part of the experience of the asylum system for the majority of asylum-seekers. Asylum-seekers are disproportionately likely to experience several of the most dysfunctional elements of the use of detention, as they are more likely to face legal or administrative barriers to return, leading to long-term detention, and to have mental health problems resulting from experiences in their countries of origin.

2. The UK detains large numbers of asylum-seekers for periods of over six months, with little prospect of deportation. This long-term detention without time limit is traumatic for the individuals involved, particularly asylum-seekers with prior experience of incarceration. It is also wasteful of public money, given that the majority of long-term detained migrants are released. Independent research has found that £70 million per year could be saved by improved decision-making in the use of detention, without reducing numbers of removals.

3. There are systemic failings in assessment and decision-making that leads the UK Border Agency (UKBA) to frequently detain highly vulnerable migrants with serious mental health conditions, causing often severe and long-term damage. Detention Action has seen a significant increase in the numbers of people with the most serious mental health problems. The High Court has four times in the last two years found that the UKBA has breached the Article 3 rights of mentally disordered migrants in detention.

4. The UK continues to use charter flights to enforce returns to certain countries in the face of independent evidence of risk to returnees. This refusal to wait until the courts have assessed the evidence leads to large numbers of last-minute legal challenges. This approach is traumatic for asylum-seekers and wasteful of UKBA resources and court time.

About Detention Action

5. Detention Action (formerly London Detainee Support Group) is a national charity established in 1993 that aims to change the way that migrants are treated by immigration detention policy in the UK. Detention Action defends the rights and improves the welfare of people in detention by combining support for individuals with campaigning for policy change. Detention Action works primarily in Harmondsworth and Colnbrook Immigration Removal Centres, near Heathrow Airport in London. All primary evidence and quotes are taken from our casework and reports, unless otherwise stated.

Long-term detention of asylum-seekers without time limit

6. Asylum-seekers are frequently deprived of their liberty for periods of years without charge for purely administrative purposes, in stark contrast to the limitation on detention of terrorist suspects which currently stands at 14 days. According to the latest UKBA statistics, of the total of 2,685 people detained, 134 people (14%) had been detained for over six months at 31 December 2012. Of these, 217 people had been detained for over a year and 74 had been detained for over 2 years.466

7. However, these statistics do not reflect the true scale of detention in the UK. Detainees whom the UKBA elects to hold in prisons rather than Immigration Removal Centres are arbitrarily excluded from the statistics.467 There is an average of 634 immigration detainees in prisons at any one time.468 Their legal status is no different to that of migrants detained in Removal Centres, so there is no coherent justification for their exclusion from the statistics, which prevents scrutiny of the true extent of immigration detention. The recent discovery by the HM Inspector of Prisons of a migrant detained for 9 years in HMP Durham suggests that the longest-detained migrants may be held in prisons.

8. Asylum-seekers can be held in immigration detention under powers contained in the 1971 Immigration Act, “where there is a realistic prospect of removal within a reasonable period.”469 The UKBA policy states that “detention must be used sparingly, and for the shortest possible period necessary.”470 However, UK is one of the few countries in Europe which uses immigration detention without time limit, having derogated from the EU Returns Directive, limiting detention to 6 months, extendable to 18 months in certain circumstances. As a result, the UK detains more migrants for longer periods than any other country in Europe.

9. Detention becomes protracted where a migrant is considered by the UKBA to be unsuitable for release, yet intractable barriers exist to their deportation. Forced removals are not possible to some countries, such as Somalia and Iraq, due to ongoing litigation concerning the dangers faced by returnees,471 and other states routinely refuse to issue emergency travel documents to their nationals.472 Yet the UK continues to detain nationals of these countries for long periods. As many asylum-seekers come from these countries, asylum-seekers are disproportionately likely to experience long-term detention.

10. Long-term detention is inefficient as a means to enforce deportation. The Enforcement Instructions and Guidance state that, for ex-offenders, “it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale.” However, of detainees leaving detention after more than a year in 2011 and 2012, 57% were released and 40% removed or deported.473 This means that, in assessing whether long-term detention will lead to removal, Case Owners are getting it wrong more often than they get it right.

11. Independent research by Matrix Evidence has concluded that £75 million per year could be saved if the UK Border Agency identified and released migrants who cannot be removed in a timely manner.474 This includes the costs incurred in defending unlawful detention actions and paying out compensation.475

12. These inefficiencies are the result of poor detention decision-making by the UKBA. Little use is made of available information (eg on timescales for travel documents, case law from previous unlawful detention rulings) that would enable informed decisions to be made as to whether deportation will be possible within a lawful period. As a result, detention is used indiscriminately for ex-offenders, without adequate consideration of whether it represents a good use of limited, expensive and potentially harmful detention places.

13. The Independent Chief Inspector of Borders and Immigration has criticised this culture of the detention of foreign ex-offenders as “the norm,” in which “a decision to deport equals a decision to detain.”476 He complained that “the default position is to identify factors that justify detention rather than considering each case in accordance with the published policy.” These findings were echoed by a joint report by the HM Inspectorate of Prisons and the Independent Chief Inspector, which found that the “detention of ex-prisoners appeared to have become the norm rather than… a rigorously governed last resort.”477 The Inspectorates recommended that an independent panel review all cases of long-term detention to consider whether “exceptional and clearly evidenced circumstances” apply that can justify continued incarceration.

14. The courts have repeatedly found long-term detention without prospect of deportation to be unlawful. For example, in the case of Sino, the High Court found that an Algerian asylum-seeker with a psychological disorder and a history of minor offending had been detained unlawfully for the entirety of his 4 years and 11 months in immigration detention.478 This is thought to be the longest ever period of unlawful immigration detention in the UK. The court found that there was at no point any prospect of his deportation becoming possible in a reasonable period, so there was never a power to detain him. Efforts to obtain a travel document had been unsuccessful for three years prior to Mr Sino’s detention, so it should have been clear at the outset that further efforts would prove unsuccessful.

15. This inefficient use of long-term detention was demonstrated by Detention Action’s September 2010 report “No Return No Release No Reason”, which demonstrates that if deportation has not been possible after a year, continued detention is unlikely to make it become possible. Of the 167 indefinite detainees whose cases were monitored over several years, a clear majority (57%) were finally released. Only a third (34%) of the detainees were deported. Almost one in ten of the detainees (9%) remained in detention. The 188 detainees in the initial survey group had been held for a total of 399 years, an average of 25 months each.479

16. On several occasions Somali nationals with potentially strong asylum claims have experienced long-term detention due to failures of the UKBA to make a decision on whether to pursue deportation. Following the decision of the European Court of Human Rights in Sufi and Elmi, most Somalis are likely to have strong claims for protection in the UK, but they are detained pending a decision on deportation. For example, P, a Somali national with indefinite leave to remain who had lived in the UK since the age of 10, was detained for eight months in 2012 whilst waiting for a decision. He was finally released when the UKBA decided not to proceed with deportation.

17. Detention Action client Mr Z has experienced three periods of prolonged immigration detention, despite never having committed a violent offence. He wishes to go back and has applied for assisted return, but his country of origin rarely grants travel documents. He has been in detention intermittently since 2006, but there has been no progress in documenting him. 14 months into his current period of detention, he was told by UKBA that it might take another 6 to 12 months to return him. He immediately launched a hunger strike, which brought him close to death, before he was finally release.

18. Mr Y was detained for over five years, despite the existence of legal barriers to removal to Mogadishu throughout his detention. He did not apply for bail for two years and six months due to lack of legal advice.

Failures of assessment of asylum-seekers with mental health issues in detention

19. The UK routinely detains asylum-seekers with serious mental health issues. Until recently, the policy guidance stated that migrants suffering from serious mental illness should normally only be detained in very exceptional circumstances. However, in 2011 a caveat was inserted into the guidance to the effect that this only applies to migrants whose serious mental illness cannot be satisfactorily managed in detention.480 The High Court found in April 2012 that these changes were unlawful; the Home Office recently confirmed that it will not appeal.481 Nevertheless, the Home Office continues to fail to conduct an equality impact assessment, as pledged in the course of the litigation.

20. Over the last two years, the High Court has on four occasions found that the prolonged detention of mentally disordered detainees amounted to breaches of Article 3 of the European Convention on Human Rights.

21. One case concerned BA, a Nigerian asylum-seeker with a criminal conviction for smuggling drugs, who was detained between June and October 2011. He had been assessed by the Probation Service as low risk of reoffending or serious harm to the public. He was twice sectioned under the Mental Health Act during his prison sentence, with evidence of psychosis and refusal of fluids. He was detained in June 2011, but the UKBA were unable to arrange his asylum interview as he was too unwell to be interviewed. By July 2011, the UKBA had been informed by the Healthcare Manager at Harmondsworth Immigration Removal Centre that he was not fit to be detained as he could die imminently due to his refusal of fluids. After a spell in hospital, he was transferred back to detention, in breach of a court order. He was not released until a further order from the High Court on 7 October. In finding a breach of Article 3, the High Court described “callous indifference” on the part of the UK Border Agency (UKBA), alongside “a deplorable failure… to recognise the nature and extent of BA’s illness.”482

22. In another case pending in the High Court, Mr E., a client of Detention Action, has been detained for three years and one month despite suffering from exceptionally severe mental health problems. It is believed that Mr E. was sex-trafficked to Europe at a young age and has resided in numerous countries since then, experiencing sexual abuse. His nationality is unknown, and there has never been any progress in documenting him for removal. From the very start of his detention he made frequent suicide attempts, yet his mental health has deteriorated in detention, including ever deepening delusional thought and behaviour. He has received multiple diagnoses while in detention including bi-polar and schizoaffective disorder. The High Court made an interim ruling that he should be released to a psychiatric intensive care unit as soon as possible, but he was only finally released seven months later. He was detained for three years and eight months.

23. Detention Action routinely supports detainees with severe mental health issues. One Detention Action client, Mr Y, has been detained for a year, during which time he has self-harmed prolifically, causing scars across his body. He had no known mental health problems prior to his conviction for a minor non-violent first offence, but has now been diagnosed with depression. He applied for assisted return before the end of his sentence and has cooperated actively throughout his detention, yet there is no progress with obtaining a travel document.

24. Detention Action’s 2009 report “Detained Lives” documented the impact of long-term detention on mental health. Interviewees described witnessing other detainees self-harming or attempting suicide. 21% of interviewees described symptoms of mental disorder, including hearing voices, talking to themselves and memory problems, despite having no previously diagnosed conditions. 8% described harming themselves, and 13% described suicidal feelings.483 One interviewee, detained for 2 years, commented that “there’s nothing to do, every night. I start hearing voices, hearing voices, tell you do crazy things to myself... I’ve never had medication in my life before now, never. Not in my country, never.”484

Failures to consider new evidence of risk to returnees

25. The UKBA continues to pursue the deportation of asylum-seekers to countries such as the Democratic Republic of Congo, Iraq and Sri Lanka, despite credible evidence that they will face persecution or mistreatment. The UKBA’s approach to returns to these highly complex situations shows a consistent determination to pursue removals regardless of risk. There is an ongoing failure adequately to consider this evidence, leading to repeated attempts to remove asylum-seekers in large numbers on charter flights. Asylum-seekers are reliant on emergency interventions by their lawyers and the High Court to have assessed the implications for them of this new evidence of risk.

26. Freedom from Torture have published evidence that Tamil asylum-seekers who have spent time abroad and have an actual or perceived association at any level with the LTTE are at risk of torture on return.485 The report documents several cases of torture of returning asylum-seekers. This and other evidence is due to be considered by the courts in a Country Guidance Case. Nevertheless, the UKBA decided to continue conducting mass removals by charter flight, without waiting for the court to assess the evidence. As a result, large numbers of asylum-seekers had to apply for emergency injunctions to stop their removals. On 27 February 2013, the High Court ordered a suspension of the removal of all Tamil asylum-seekers. Even after this suspension, the UKBA set removal directions for another Tamil asylum-seeker, who also had to apply to the High Court to have it cancelled.

27. Justice First in 2011 documented a pattern of inhuman and degrading treatment experienced by asylum-seekers returned to the Democratic Republic of Congo.486 Concerns about the safety of returning asylum-seekers were reinforced in 2012 after comments by the Congolese ambassador that returnees would be arrested on arrival. The ambassador has attempted to retract his statement, but made no commitment that returnees would not be detained on arrival. The UKBA now considers that risks on return can no longer be considered to exist, based on their own fact-finding mission to DRC, but the conflicting evidence is still being considered in the courts. Where asylum-seekers have adequate legal representation, they are in Detention Action’s experience generally able to secure High Court injunctions to stop their removals. However, the UKBA continues opportunistically to set removal directions, so asylum-seekers who are vulnerable or lack legal representation still face the risk of removal.

28. For example, Mr C was given removal directions to Kinshasa by charter flight in 2012. His private solicitor did not challenge the removal directions. Mr C resisted and was taken off the flight. We subsequently helped him to find a reputable legal aid solicitor, who succeeded in having his subsequent removal directions cancelled. He has now been released, and his fresh claim is pending.

29. The interventions of the courts have led removals to be cancelled to each of these three countries. As a result, asylum-seekers have unnecessarily experienced the trauma of detention and threat of imminent removal. The use of charter flights also generates substantial costs for the courts in considering legal challenges at short notice. Where the courts order all forced removals to be cancelled, as was the case for Tamils due to be removed on the charter flight of February 2013, there is significant waste of public money associated with the arranging of the charter flight.

30. Further unnecessary distress is caused by the UKBA policy of giving removal directions to ‘reserve’ returnees, whose removal is not planned unless a space becomes available due to other returnees being taken off. This leads asylum-seekers who will not be returned anyway also to seek injunctions in the High Court, with the attendant costs in legal aid and court costs. It is highly distressing for the individuals threatened with removal.

Detention of asylum-seekers in inappropriate high-security conditions

31. In Brook House, Colnbrook and Harmondsworth Immigration Removal Centres, three of the largest centres in the UK, asylum-seekers are detained in conditions with the same security as high security prisons. In all three centres, wings have been built to “Category B” prison standards. Although migrants are not serving sentences for crimes, they are held in secure conditions equivalent to those used for serious offenders in prison.

32. Most recently, in summer 2011, five new high security wings opened at Harmondsworth Immigration Removal Centre, near Heathrow Airport in London. The Harmondsworth Independent Monitoring Board, which reports to the Home Secretary, has found it “shocking that brand new facilities have been built that are ill-suited to their intended purpose and that offer lower standards of decency than the facilities they replace.”487

33. Detention Action has interviewed asylum-seekers in detention about their experiences of these conditions. John from Gambia told us that “I had never been in this situation, I had never been locked up, it was like a prison, it is a prison. I said to my cellmate, ‘this is prison, not detention.’ I was very depressed thinking ‘Why am I here, in a prison?’”488

34. Recommendation 1: The UK should adopt a maximum time limit for detention. The UK should follow best practice in the EU and implement a time limit of one month.

35. Recommendation 2: Decisions to initiate and continue detention should involve thorough analysis of the likelihood of deportation or removal being possible within a reasonable and lawful period of detention. The UKBA should improve its risk assessment to enable Case Owners to identify and release at an early stage migrants who cannot be deported within a reasonable and lawful period of detention.

36. Recommendation 3: Where deportation is not imminent, community-based alternatives to detention should always be used. UKBA should study the successes of the Swedish and Australian models, which have achieved high rates of voluntary return through an emphasis on dialogue with asylum seekers and migrants in the community.

37. Recommendation 4: UKBA detention statistics should include all migrants detained under Immigration Act powers. Migrants detained in prisons should no longer be arbitrarily excluded from the statistics.

38. Recommendation 5: The UKBA should cease the detention of migrants with mental disorders. Adequate screening and monitoring arrangements must be introduced to identify migrants whose mental health makes detention inappropriate.

39. Recommendation 6: The UKBA should end the use of charter flights where there is ongoing litigation around the safety of destination countries. Where there is independent evidence of risk on return to certain classes of asylum-seekers, removals should not commence until the evidence has been fully considered in the courts.

Detention Action

April 2013

©Parliamentary copyright

Prepared 11th October 2013