Summary
Detaining an individual for the purpose of immigration control is a deprivation of that person’s liberty. The Government has a responsibility to use it sparingly, and for the shortest period possible. The power to detain can sometimes be necessary but should be used only if there are no other options, as a last resort prior to removal.
Detention powers are governed by processes set out in policy and guidance, which include directions on the power to detain, the decision and authority to detain, and detention procedures.
This policy and guidance is too often not being followed.
Our inquiry was prompted by the exposure of appalling physical and verbal abuse of detainees by some staff at Brook House Immigration Removal Centre (IRC) in 2017 and by persistent reports of the inappropriate use of immigration detention and its damaging effect on the mental health and wellbeing of detainees.
Over the course of our inquiry, we have found serious problems with almost every element of the immigration detention system. People are being wrongfully detained, held in immigration detention when they are vulnerable and detained for too long.
Immigration officials who are tasked with detaining and removing people from the UK face making difficult decisions on a daily basis. But too often the Home Office has shown a shockingly cavalier attitude to the deprivation of human liberty and the protection of people’s basic rights. It needs to be more transparent in collating information about the number of people who are wrongfully detained, it must give evidenced explanations as to why decisions to detain have been made and it needs to admit where things have gone wrong, apologise, and seek to learn lessons.
Above all, it must do much more to ensure that all reasonable alternatives to detention have been considered before detention is authorised.
Our inquiry identified a weak administrative process and a serious lack of judicial oversight of the decision to detain. Decisions to hold an individual in immigration detention are taken by Home Office officials and not by a Judge or court, and immigration detention is overseen by the Immigration Enforcement directorate in the Home Office. In this process, there is no thorough pre-detention screening of individuals and other than in asylum interviews there is no face to face contact between immigration decision-makers and the detainee. As a result, in the immigration system, people can be deprived of their liberty through an entirely paper-based exercise by officials where no one involved in the decision ever interviews the potential detainee. Moreover, there is no requirement in UK law for those decisions to be subject to judicial oversight within a certain period after a detention order is made. This has to change. In the UK, there is no limit on the length of time for which someone can be held in immigration detention.
Our inquiry has found that Home Office caseworking inefficiencies—for example lengthy delays in asylum decisions, appeals and documentation—unnecessarily prolong individuals’ detention. Evidence from a multitude of experts shows the harm that immigration detention inflicts on the detainee’s mental health and well-being. For some detainees to be held for more than three years is unacceptable. While the indefinite nature of detention traumatises those who are being held, it also means that there is no pressure on the Home Office and on the immigration system to make swift decisions on individuals’ cases. There is a rapidly growing consensus amongst medical professionals, independent inspectorate bodies, people with lived experience and other key stakeholders on the urgent need for a maximum time limit. Lengthy immigration detention is unnecessary, inhumane and causes harm.
We found that the Adults at Risk (AAR) policy is not protecting the vulnerable people it was introduced to protect. Instead, the way evidence of risk is weighed against immigration factors has increased the burden on individuals to evidence the risk of harm that might render them particularly vulnerable if they were placed or remained in detention. The policy has significantly lowered the threshold for Home Office caseworkers to maintain detention of those most at risk. Rule 35, the process intended to act as a safeguard against the detention of vulnerable people by ensuring that particularly vulnerable detainees are brought to the attention of relevant staff, has failed to prevent too many injustices. It is not currently a fair or robust system.
The Home Office is ultimately responsible for oversight of the detention estate and has a responsibility to meet its obligations to those individuals it detains in Immigration Removal Centres (IRCs). This means that people should be able to access high quality healthcare, equivalent to that in the community. From the evidence we have heard, this is not always the case. To give one example, the disgraceful abuse of detainees by staff that was revealed by undercover journalism at Brook House IRC is sadly not the first of its kind. It is clear from the evidence we heard that the Home Office has utterly failed in its responsibilities to oversee and monitor the safe and humane detention of individuals in the UK.
As a result of these serious failings in almost every area of the immigration detention process, this report makes a series of recommendations for reforms, including:
- Stronger judicial oversight by subjecting the initial detention decision to review by a Judge within 72 hours. This would be in line with other areas of UK law, for example in the UK criminal justice system, where an upper limit for detention without charge exists.
- Requiring caseworkers involved in the decision to detain an individual in all cases to meet that individual at least once, in person, prior to finalising the detention decision or/and within one week of their detention.
- Introducing a thorough, face-to-face pre-detention screening process to facilitate the disclosure of vulnerability.
- Abolishing the three AAR levels of risk and reverting to the previous policy of a presumption not to detain individuals except in very exceptional circumstances. The Home Office should consult with a wide range of stakeholders who are affected by detention including people with lived experience, to develop an agreed grouping of categories of vulnerability.
- Bringing an end to indefinite immigration detention and implementing a maximum 28-day time limit. This time limit should be cumulative and accompanied by a robust series of regular checks and safeguards. Any extension should only be made in exceptional circumstances and with prior judicial approval.
- Urging the Government to undertake a consultation on how detention time limit maximums could be applied to different types of detainees, such as vulnerable individuals. The Home Office should also consult on the application of the time limit to Foreign National Offenders (FNOs), including assessment of specific public protection issues.
- Ensuring all IRCs have robust and effective whistleblowing procedures which IRC staff and detainees can use with complete confidence, knowing they will be fully protected.
We welcome the Home Office’s agreement to conduct an independent inquiry into the maltreatment of detainees by some staff at Brook House IRC and urge the Government to publish the terms of reference with immediate effect.
Published: 21 March 2019