Immigration Bill Committee

Written evidence submitted by the Gatwick Detainees Welfare Group (IB 52)

About Gatwick Detainees Welfare Group

1. Gatwick Detainees Welfare Group (GDWG) is a registered charity who visit and support people held under Immigration Act powers in the Gatwick area.

Summary

2. GDWG are extremely concerned that the Bill proposes the removal of bail addresses that enables those detained migrants who have no access to a private address in UK to apply for immigration bail to the Immigration and Asylum Tribunal (IAT). The result of this change could effectively mean that many people in detention will be unable to challenge their detention, other than via a costly and time-consuming unlawful detention challenge in the High Court.

Background

3. In 2012 there were almost two and a half thousand unique applications for section 4(1) bail accommodation, suggesting that these people were unable to access any other accommodation for their bail application. Having an address acceptable to the Tribunal to be released to is a prerequisite for being granted bail. If you don’t have an address, you cannot be released on bail.

4. The UK is unique in Europe in having no time limit on detention, and unusual in the lack of automatic judicial oversight.

Part 5 and Schedule 6

5. Part 5 and Schedule 6 of the Bill abolish Section 4 of the Immigration Act 1999, and replace it with a new Section 95A. It is as yet unclear how Section 95A will work, and secondary legislation is going to be required. However, it seems that the government is proposing a system where an address will only be provided when the Home Office chooses to release, and not when a detainee wishes to challenge their detention via the Tribunal.

6. This new power to grant an address at the Home Office’s choosing appears to extend only to asylum seekers and, in limited circumstances, failed asylum seekers. Most people in detention have either previously had their asylum claims refused, or have never claimed asylum. This will effectively deny destitute migrants in detention the right to have their detention scrutinised by the Tribunal, unless the Home Office choose to grant them an address under Schedule 6. In other words, the Home Office will have the power to prevent detained migrants from applying for bail. There will be no right of appeal against this if the Secretary of State decides that there are no genuine obstacles to removal. Our own experience has shown us repeatedly that the Home Office will frequently argue that there is no barrier to removal even where the fact of a prolonged detention and failed removals suggest strongly otherwise.

7. This power to effectively refuse access to judicial scrutiny of detention risks breaching the right to liberty under Article 5 of the European Convention on Human Rights.

Schedule 5

8. Clause 29 and Schedule 5 are confusing and unclear, in that they appear to give the Secretary of State the power ‘in exceptional circumstances’ to grant support to someone who is already on bail and living at an address of their own. Further clarification of this schedule is required, but it appears that it is not designed to supply a bail address for a detainee to apply for bail to the Tribunal.

The likely impact of the proposed legislation

9. We believe the proposals in the Bill would lead to the following:

10. Abuse of the asylum system. If people in detention know that the only way to apply for a bail address is by claiming asylum, it is likely there will be an increase in asylum applications.

11. Increased use of Judicial Review. Those in detention who cannot access a bail address will be forced therefore to apply for Judicial Review, which will put even greater burden on the courts. There is also the probability that there will be an increase of unlawful detention litigation as the only recourse left to those unable to challenge their detention any other way, with very costly implications.

12. Increase in long-term detention. With no time limit on detention, the UK already sees significant numbers of people who spend many months or years in detention. With no access to bail addresses, it is likely this number will increase yet further, at huge financial and human cost.

13. Promoting absconding. Without access to bail addresses, it is inevitable that detainees will be released on temporary admission or by the High Court to destitution and homelessness. This will of course mean it will be almost impossible for the Home Office to keep track of these people should they wish to detain and remove them at a later date, and will also make reporting requirements much less likely to be adhered to.

14. Promoting criminality and exploitation. Making people street homeless, many of whom will be ex-offenders, is going to lead to an increase in criminal behaviour as these people try to survive without any food, shelter or support. It will also put people at risk of exploitation and illegal working.

15. Increase in protests and disturbances in detention. Our experience tells us that frustration at not knowing when you will be released increases both individual and collective protest actions in detention. If the possibility of challenging detention is effectively removed from a large section of the detention population there will undoubtedly be an escalation in this, making centres less safe and more difficult to manage.

16. Reducing voluntary return. While the Home Office appears to favour enforcement tactics rather than engagement to try to ensure compliance with immigration decisions, international evidence is clear that in fact supporting and stabilising people is a much more effective way of allowing them to make rational decisions about their future, including the inevitability for some of the fact they will have to return to their home countries. Our experience at GDWG tells us that the more the Home Office try to force people into compliance through strong-arm tactics such as indefinite detention, the more many of those people effectively dig their heels in and try to fight. There is a real risk that removing the ability to access bail accommodation will compound this. Community-based engagement models in other countries have shown that much higher levels of voluntary return can be achieved this way.

November 2015

Prepared 18th November 2015