3Decision to detain
30.Chapter 55 of the Home Office Enforcement Instructions and Guidance states that an Immigration Officer or “non-warranted” caseworker has the legal power to detain an “illegal entrant” under the authority of the Secretary of State but that “in practice, an officer of at least chief immigration officer [CIO] rank, or a HEO [Higher Executive Officer] caseworker, must give authority”.42 The guidance also outlines special circumstances in which the authority to detain must be given by officers of specific rank (for example, spouses of British citizens or EEA nationals: CIO/ HEO).43
31.The Home Office must specify the basis on which a decision to detain was made and “there must be a properly evidenced and fully justified explanation of the reasoning behind the decision to detain placed on file in all detention cases”.44 We heard from Bail for Immigration Detainees (BID) that the Home Office rarely justifies the necessity of its decision to detain, nor explains why alternatives to detention (such as bail with reporting restrictions or electronic monitoring) are inappropriate. They told us:
The result of this is that the burden of proof, in practice, unfailingly rests upon the detainee to demonstrate why they should be released in an application for bail, rather than upon the Home Office in demonstrating why they must be detained. This is contrary to the principle that the burden of justifying the use of detention is on the detaining authority and contrary to the right to freedom from arbitrary detention.45
32.In evidence to the Joint Committee on Human Rights, a number of barristers raised their concerns about the lack of transparency in the Home Office detention decision making process. Stephanie Harrison, a barrister at Garden Court Chambers, said that:
The decision-making process is opaque, so even if you are an expert lawyer and you are provided with the documentation, it does not tell you why; it just gives you a conclusion. It will say, “You are an abscond risk. Your removal is imminent”, but it does not say why you are an abscond risk. It does not say what the obstacles to removal are. It does not explain the underlying decision. It gives a conclusion, not the reasons for it, which obviously makes it very difficult to challenge.46
33.Laura Dubinksy, a barrister at Doughty Street Chambers, added her concerns about the lack of Home Office information provided to detainees about the decision for their detention:
At the start of detention, detainees are not given a copy of the decision to detain. Nor are they given a copy of the evidence on which that decision is based. Under the current regime, what they get within 24 hours is what Stephanie referred to, the IS91R checklist, or sometimes a letter to the detainee. That will generally be far shorter than the decision to detain and may be brief and elliptical: “This detainee’s release is not conducive to the public good”, for example.47
34.In his most recent inspection of Yarl’s Wood Her Majesty’s Chief Inspector of Prisons noted: “During the previous six months 67% of women had been released into the community, which raised questions about the justification for detention in the first place”.48 Tom Nunn, Legal Manager at Bail for Immigration Detainees (BID) told us that “many of the decisions to detain people are based on no logic at all”.49
35.During this inquiry our attention was drawn to several specific cases which call into question Home Office procedures. In one case a woman was placed in immigration detention and taken to Yarl’s Wood having contacted the police because of a threat to kill her from a violent ex-husband. She had an ongoing application for indefinite leave to remain which was later granted.50 In response to concerns raised on that specific case the Minister for Immigration, Rt Hon Caroline Nokes MP, told the House of Commons “that we have in this country an immigration policy that seeks to implement the rules as they are set out”; she also said that people are only detained “when there is a real risk of absconding or of public harm”.51
Judicial oversight
36.The Bingham Centre for the Rule of Law explained that there is “currently no requirement in UK law that the legality of an initial decision to detain be reviewed by a judicial authority within a certain period after the detention order is made”. They argued that “such a requirement would establish early in the process of detention and deportation whether an individual has been properly detained”.52 Research commissioned by the Bar Council noted that under UK law, an immigration bail application does not provide for a review of the lawfulness of detention:
[ … ] the most prompt and accessible way to secure release is via a bail application to the First-tier Tribunal’s Immigration and Asylum Chamber. This is not an independent or automatic review of the lawfulness of detention. Judicial review considers the lawfulness of detention, but is not automatic, can take some time, and typically considers cases where detention has already become unlawful, rather than being prospective.53
37.The Bingham Centre for the Rule of Law argued that prompt and automatic court control, which exists in many countries across Europe, not only provided appropriate protection for the individual detained but also ensured that detention was not arbitrary. They cited some examples of how a maximum time limit operated in other European countries including Denmark and Switzerland:
- Danish law requires that a non-citizen deprived of liberty be brought before a court of justice within three days (72 hours), and the court must rule on the lawfulness of detention and whether its continuance is appropriate.
- In Switzerland, the legality and appropriateness of detention must be reviewed at the latest within four days (96 hours) by a judicial authority on the basis of an oral hearing.54
38.The initial detention decision should be made by the Home Office but reviewed within 72 hours by a judge. 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.
Separation of families
39.The Home Office’s policy guidance on family separations states that a child must not be separated from both adults for immigration purposes if the child is taken into care as a result.55 According to a Guardian newspaper article in July 2018, BID reported that children had been placed into the care of social services as a result of detention on three occasions in the last year and a half.56
40.On 9 March 2018, a Home Office decision to detain a father resulted in his three school-age children and autistic 17-year-old son being taken into care. The mother was out of the country at the time of his detention. He had been released on bail by a judge and had met all of his reporting duties.57
41.The Borders, Citizenship and Immigration Act 2009 places a statutory duty upon the Secretary of State to ensure that immigration, asylum and nationality functions “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.58 The Home Office’s guidance for caseworkers and Immigration Compliance and Enforcement (ICE) officers on family separations is founded upon this statutory duty and clearly states that the best interests of any child must be the “primary consideration” for officials in each case. Yet it is clear that this guidance is not always being followed. The Government should bring forward legislation specifically to prevent the separation of a nursing mother from the child they are nursing, and the separation of a child from one or both parents where the result would be that the child is taken into care.
Detention of older people
42.Published Home Office statistics do not provide a breakdown of the age of detainees, differentiating only between adult and child. Policy operational guidance states that “[ … ] an individual aged 70 or over (regardless of any other considerations) should be regarded as being at risk. The fact of their age alone will automatically be regarded as amounting to, at least, level 2 evidence” (see explanation of evidence levels in Chapter 4).59 While the Home Office Adults at Risk statutory guidance currently considers the age of 70 to be an appropriate threshold for considering age to be a factor in vulnerability, other bodies take a different view, notably the United Nations.60
43.Recent comments from the Home Office, which we record below, appear to indicate that it has conceded that the threshold in the Adults at Risk statutory guidance may be too simplistic, and too high, given that age-related vulnerability may be affected by a number of factors including occupation, physical and mental health. This was demonstrated in our inquiry into the immigration treatment of the Windrush generation where it became clear that the Home Office has been detaining older and potentially vulnerable individuals. We heard how Paulette Wilson, aged 61, was detained in Yarl’s Wood IRC and Anthony Bryan, aged 60, was detained twice, although both were lawfully resident in the UK when they were detained and presented no risk of absconding.61 On 1 May 2018, Channel 4 news reported the case of Yvonne Smith, aged 64. Ms Smith, the daughter of a Windrush arrival, had been caring for her father who was in his 90s when she was detained. She was detained in Yarl’s Wood IRC for nine months.62 When asked about the decision to detain individuals such as Paulette Wilson, the then Home Secretary told the Committee:
We are putting in more senior caseworkers, for a start, to ensure that any decisions of that type are referred higher up. I am also looking again at the type of profile of people. I do not think it is a good idea to lock up elderly people in that way. That is another change I am putting in place.63
44.Hugh Ind, the then Director General of Immigration Enforcement, told us that caseworkers faced making difficult decisions on individuals’ immigration cases:
Some of them have a very significant back story that is available to us that is hard to share, which means that our caseworkers are making a very difficult decision in relation to those cases. Not all of them, but some of them have a very serious criminal past that you and [I] would not be able to reconcile with the stories that we are told from the other side, but that has to be reconciled by my caseworkers. Sometimes they get it wrong and we have to have several safeguards in place to get it right.64
45.We recognise that age-related vulnerability is complex and that perspectives on and definitions of ‘older people’ can differ widely. However, the Home Office does not define ‘older people’ in either the Adults at Risk statutory guidance or the Adults at Risk policy guidance; also it does not explain why an individual specifically aged 70 or over should be regarded as vulnerable. We recommend that the Government should have a clear policy which avoids detaining people over the age of 60 unless there are exceptional reasons to do so.
Detention of LGBTQI+ individuals
46.In Shaw’s first report on the welfare of vulnerable people in detention, he examined the concept of vulnerability in determining whether certain groups of people would be particularly vulnerable to harm if detained. Following visits to all of the IRCs and consideration of evidence submitted to his review he concluded that IRCs were not able to provide an “appropriate, safe and supportive environment” for transsexual people and recommended a presumption against the detention of “transsexual people”.65
47.Following publication of Shaw’s report, the Government introduced an ‘adult at risk’ concept into decision-making on immigration detention with a clear presumption that people who are at risk should not be detained. The Government included “being a transsexual or intersex person” in the new Adults at Risk (AAR) “indicators of risk” which indicated a person’s vulnerability to harm in detention. We will discuss the AAR policy further in Chapter 4.
48.The Government does not currently recognise Lesbian, Gay and Bi-sexual people as adults at risk. The United Kingdom Lesbian & Gay Immigration Group (UKLGIG) expressed concern that the Home Office does not monitor the number of LGBTI people that are detained. This means that the effectiveness of the Government’s AAR policy cannot be evaluated in terms of reducing the number of trans and intersex people detained.66 UKLGIG also highlighted inconsistencies in the Government’s recognition of LGBTI people as vulnerable. Being LGBTI is noted as an indicator of vulnerability in UKVI’s adult safeguarding strategy, the database used by asylum caseworkers, and in the Vulnerable Persons Resettlement Scheme from the Syrian region.67
49.The 2018 United Kingdom Lesbian and Gay Immigration Group (UKLGIG) report ‘Still Falling Short’ highlighted the direct impact that detention has on the prospects of LGBTQI+ people seeking to claim asylum.68 Often individuals arrive in the UK having come from a country where they have faced extreme persecution and, in many cases, physical or emotional abuse and/or trauma.
50.Some of these individuals arrive in the UK fearing having their sexual orientation or gender identity exposed, and yet Home Office caseworkers and decision makers frequently expect LGBTQI+ asylum seekers to ‘prove’ their situation. This may include asking for witnesses who will provide a reference confirming that the asylum seeker is LGBTQI+ as claimed, as well as asking the asylum seeker to provide evidence of attending LGBTQI+ events, organisations, or online dating.
51.While legal aid is offered to all asylum seekers, advisers often do not have the specialist knowledge required for asylum claims based on sexual orientation or gender identity. LGBTQI+ asylum seekers are particularly limited in pursuing their legal claim due to the evidence that the Home Office requires of them.
52.Most detention centres in the UK offer the services of an Equality or LGBT Officer who is responsible for providing advice and support to any LGBTQI+ identifying detainees. However, the 2016 UK Lesbian & Gay Immigration Group (UKLGIG) and Stonewall report, No Safe Refuge, highlighted the systemic discrimination, abuse and harassment that LGBTQI+ people face from both staff and other people who have been detained.69 Furthermore, the report noted that the visibility and availability of equality advice services was limited, and interviewees reported instances in which detention officers were reluctant to provide details on how to access the LGBT Officer.
53.While it is recognised that steps such as implementing Equality/LGBT Officers in detention centres have aimed to improve the experiences of LGBTQI+ asylum seekers, there is more work to be done.
54.We recommend that the Government should recognise that LGBTQI+ people are vulnerable in immigration detention, thereby extending the recognition that it already affords to trans and intersex people to all LGBTQI+ individuals. Secondly, the Home Office should monitor and publish statistics on the number of LGBTQI+ people it detains.
Detained asylum seekers
55.From 2000 until July 2015 people making an asylum claim could be detained if a quick decision was likely in their case. This was known as the detained fast-track policy (referred to as ‘the DFT’).70 In these cases, asylum decisions and appeals were made within a matter of days and weeks, rather than months (as is often the case for non-detained asylum cases). The DFT was suspended in 2015 after a series of legal challenges resulted in findings that the fast-track rules were unfair and unjust.71 In response to the decision to suspend the detained fast-track, the Home Office formed a dedicated detained asylum casework team for examining asylum claims made by those in detention (known as the DAC team). Despite the suspension of the DFT, the Refugee Council reported that “some asylum seekers are still detained for the duration of the examination of their claim”.72 During our inquiry we questioned the Home Office about the large numbers of asylum seekers held in immigration detention who were not foreign national offenders, and who did not pose a threat to the public.73
56.The Home Office reported that asylum-seeking detainees were usually those who claimed asylum after being detained for removal, or who were detained for public protection reasons. Refused asylum seekers may also be detained for removal if they refuse to leave the UK voluntarily.74 Hugh Ind, the then Director General for Immigration Enforcement, told us:
You would not find somebody who appeared spontaneously—to use the United Nations expression—claiming asylum, having that asylum claim processed and in detention now unless there was a public protection reason alongside it.75
57.Following our evidence session with Mr Ind, Detention Action and Women for Refugee Women told us that the Home Office’s statement conflicted with what they had seen in their work. Detention Action highlighted the cases of five clients who “were detained after claiming asylum at the port, on the day of their arrival in the UK” with “no suggestion of public protection issues in any of the cases”. Detention Action confirmed that “Two of them were detained for three and five months respectively”.76 Additionally, Women for Refugee Women told us that they were “aware of four cases of women who were detained after claiming asylum at the port. Again, there were no public protection issues in these cases”. Two of the women were released “after several weeks in detention”, one woman was detained for six months, and the other women had been detained for three months as of May 2018.77
58.In November 2018 the Immigration Minister, Rt Hon Caroline Nokes MP, wrote to us to reaffirm that the Home Office “do not detain people simply for having claimed asylum, whether on arrival in the UK or subsequently”. She added that:
Individuals who have their claim processed in detention have claimed asylum after being detained for removal, have been detained for public protection reasons, or have previously failed to comply with the UK’s immigration rules.78
59.We are very concerned about the discrepancy in the evidence we have been given and we are not confident in the accuracy of the Home Office information. While we accept it is the intention only to detain people where there are public protection reasons to do so, in practice we are concerned that too many asylum seekers are being detained who may not need to be, and that inappropriate decisions are being taken to lock people up.
Wrongful detention
60.Throughout our inquiry we have sought to ascertain the numbers of people who are being wrongfully detained. We have requested this information directly from the Home Office and have also sought related information about compensation payments to individuals who have been wrongfully detained: while not being a direct proxy, this provides some indication of the likely numbers involved. On 14 November 2018 the Immigration Minister, Rt Hon Caroline Nokes MP, wrote to us that it would not be possible to provide figures on the number of people wrongfully detained between 2010–2017. She stated:
Providing the information requested would require a manual check of individual records and therefore I am not able to provide you with this information.79
61.In June 2018, Sir Philip Rutnam, Permanent Secretary to the Home Office, provided us with figures of compensation payments to those wrongfully detained between 2012–17.80 The figures in Table C3 below show that between 2012 and 2015 the Government paid a total of £13.8m to more than 550 people after a period of unlawful immigration detention. The Home Office used the term ‘wrongful’ for Table C1 and ‘unlawful’ for Table C3; we understand from a parliamentary question [144298] on 15 May 2018 that the Home Office considers the terms interchangeable and therefore these figures are comparable.81 Table C1 below shows that there were a further 171 cases of wrongful immigration detention in 2015–16, generating compensation payments totalling £4.1m, and 143 cases in 2016–17, generating a further £3.3m in compensation. These figures show that well over a hundred people are unlawfully detained each year.82
Table 1: Home Office wrongful detention claims paid
62.Following the Immigration Minister’s response to our question about the number of people wrongfully detained, the Committee further probed the issue with Sir Philip Rutnam, Permanent Secretary to the Home Office as part of a stand-alone evidence session on the work of the Home Office.83 We highlighted the idiosyncrasy of the Home Office being able to provide us with detailed data on the compensation pay-outs, the average compensation pay-out, the average cost per day to hold someone in detention and the total cost (in millions) of wrongful detention—but still being unable to provide us with the number of people who had been wrongfully detained.84 In response, Sir Philip Rutnam asked if he could get back to us with “a fuller explanation”. On 18 December 2018, he wrote to us that, “The Department does not hold a single, consolidated record of this”. He reiterated much of what was already stated in both supplementary evidence to the Committee from the Immigration Minister on 14 November 2018, and in his letter to the Committee on 25 June 2018.85 He said:
to compile one [a record] retrospectively would be disproportionately expensive. However, the Department has provided information about numbers of cases securing at least £1 in compensation. I think it is fair to regard the number of cases as a good guide to the number of people, but there may be some differences between them [ … ].86
63.The number of cases Sir Philip referred to is outlined in Table C3 on page 24 of this report. We take this to mean that the Home Office understands ‘wrongful detention’ to refer to someone who has been proven to have been wrongfully detained through winning a case against the Home Office, and further that most individuals in this category would have secured at least £1 in compensation. This would however appear to exclude anyone who has an ongoing claim of wrongful detention, and anyone who was acknowledged to have been wrongfully detained but did not receive compensation (or whose compensation has not yet been paid for some reason, e.g. they appealed against the amount).
64.The Immigration Law Practitioners’ Association (ILPA) told us that their members “represent significant numbers of individuals who seek redress for unlawful detention and removal”. They argued that the statistical information provided by the Government on cases of unlawful detention is not a true representation of the numbers involved. They explained that this may be for a variety of reasons, including people “being removed without receiving advice from a lawyer, language and other barriers (e.g. mental illness)” as well as a fear that “pursuing litigation might prejudice their immigration position”. Significantly ILPA members reported that in general the Home Office would make its offer of compensation conditional upon the settlement “remaining confidential”. ILPA highlighted a number of cases where the High Court had found that “the immigration detention of mentally ill individuals was inhuman and degrading, in violation of article 3 EHCR” and no apology was given by the Home Office. ILPA told us that “the Home Office very rarely admits liability and apologises” for the unlawful detention or removal of the clients that ILPA represent. They added that many clients tell their members “that this is either all they want or it is one of the most important aspects of redress that they seek”.87
65.Immigration officials tasked with detaining and removing people from the UK face making difficult decisions on a daily basis. However, cases drawn to our attention show that the Home Office is ignoring and breaching its own policy guidance. While the Government’s data can only provide an inexact picture of mistaken decisions, it is clear that people are being wrongly detained. We are appalled that the Home Office does not collate basic, transparent information about the number of people who are wrongfully detained. These are cases in which people have been wrongly deprived by the state of one of their most basic rights, potentially causing them great harm and distress. For the Home Office not even to collate this information so that ministers and senior officials can monitor or review the problem shows a shockingly cavalier attitude to the deprivation of liberty and the protection of people’s basic rights. The Home Office needs to urgently change its recording systems and ensure there is a proper process to record and publish quarterly the number of people wrongfully detained and to publish annually the level of compensation paid out.
66.Detaining an individual for reasons of immigration control is a deprivation of that person’s liberty. Decisions to detain an individual are taken by Home Office officials and not by a judge or court. The Home Office must do much more to ensure that all reasonable alternatives to detention have been considered before detention is authorised. As we have seen from the Windrush scandal, wrongful Home Office decisions to detain have wrecked people’s lives. The Home Office needs to be more transparent in its explanation to detainees and legal representatives of why a decision to detain has been made, and to support that decision with detailed evidence. Similarly, with regard to cases of wrongful detention and removal, the Home Office needs to change its approach to litigation, by admitting where things have gone wrong, apologising, and seeking to learn lessons. Furthermore, the Home Office must take remedial action in respect of officials responsible for cases of wrongful detention and removal, so that the same mistakes are not repeated and decision-makers understand the seriousness of getting cases wrong.
Detention gatekeeping processes
67.Consistently, more than 50% of those detained are released back into the community.88 This raises questions about the initial decision to detain and is a particular concern where the individual is unsuited for detention under the Government’s own vulnerability policies.89 Following the recommendations of the 2016 Shaw review, a Detention Gatekeeper (DGK) team was set up in June 2016 to scrutinise all proposed detentions and to “ensure that there is no evidence of vulnerability which would be exacerbated by detention”.90 This team has responsibility for assessing vulnerability and advising caseworkers on detention decisions. In response to a parliamentary question on immigration detention the then Immigration Minister, Rt Hon Robert Goodwill MP, explained that the Detention Gatekeeper function would mean that individuals could “now only enter immigration detention with the authority of the Detention Gatekeeper, who will ensure that there is no evidence of vulnerability which would be exacerbated by detention, that return will occur within a reasonable timeframe and check that any proposed detention is lawful”.91
Face to face engagement with detainees
68.The Gatekeeper team does not have any face to face contact with the individual and works independently of caseworkers.92 Information considered by the DGK includes administrative decisions, the outcome of any appeals to the courts in relation to someone’s claim to remain in the UK and all information known about vulnerability, including medical information from the NHS or prison health care provider.93 For a number of reasons there may be little information on an individual’s Home Office file, particularly if the individual has not previously needed to self-identify a vulnerability. Freedom from Torture highlighted that enforcement officers are the only Home Office representatives who have direct contact with an individual prior to detention.94 Consequently the first opportunity an individual has to disclose their vulnerability will be once they are detained.
69.Stephen Shaw told us that “in most cases” no one involved in the decision-making process to detain someone would meet that individual prior to detention.95 He said that:
If somebody is detained at a reporting centre, the decision will have been made elsewhere. They will come to the desk and be invited into a separate room. That face-to-face contact between caseworkers making the decision and the individuals on whom they are making those decisions was absent at the time of my first report and, so far as I am aware, remains absent.96
70.Shaw added that caseworkers “tend not to talk about people” referring to his follow up report where he mentioned a caseworker who was “unnerved by the process of going to an IRC or meeting people about whom she may have made decisions, because it humanised them”.97
71.On 14 November 2018 the Immigration Minister wrote to us on the question of how much face to face contact detainees have with immigration decision makers during the casework process. She said that following Mr Shaw’s first review the Home Office had introduced a number of Pre-Departure Teams in order to “enhance interaction with detainees, with a focus on regular face to face interaction”. She added that:
The Home Office is currently considering options on how it can improve further staff engagement and understanding of those it detains in line with Recommendation 29 of Mr Shaw’s follow up review, where he recommends that all ‘caseworkers involved in detention decisions should visit an IRC either on secondment or as part of their mandatory training’.98
72.In his follow up review, Stephen Shaw welcomed the introduction of Pre-Departure Teams [PDTs] “as a genuine effort to improve the flow of information between caseworkers and detainees”. He explained that the purpose of PDTs was to embed staff in IRCs “to increase face-to-face interaction, to promote compliance and voluntary departure, and to facilitate communication between casework units and detainees”. However, PDT staff are not caseworkers, and cannot make decisions on cases.
Identifying vulnerability
73.Gemma Lousley, of Women for Refugee Women, explained to us that it was generally only once women had been detained, often for quite significant periods of time, that it was identified that they were a survivor of rape or gender-based violence—something that a pro-active screening process could have picked up before the decision to detain had been made.99 The British Medical Association and Medical Justice also raised concerns over the absence of an active screening process for vulnerabilities.100 Medical Justice highlighted that:
[ … ] the Gatekeeper Team makes decisions based purely on available information and does not invite submissions from the detainee or their representative. Even where there is evidence of vulnerability on file, we have seen individuals detained without apparent meaningful assessment by the Gatekeeper team.101
74.Medical Justice gave the following examples of individuals who were detained despite evidence of vulnerability on their file:
Q, a victim of torture with well documented diagnosis of depression and PTSD, was detained despite having previously attempted suicide in detention and having extensive medical evidence, which had previously deemed sufficient to justify a grant of discretionary leave to remain in the UK.
T was subjected to physical and sexual abuse as a child and as a result had significant mental health problems. She was detained in 2016 and released after a Rule 35 report set out her scarring and mental health problems. In 2017 she was re-detained, despite this well documented history, and released 20 days later following a second Rule 35 report.102
75.In 2017–18, 25,358 people were referred by case workers to the Gatekeeper team for detention. 24,339 recommendations were agreed, and 1,019 referrals (4%) were rejected. The Home Office explained that the low number of rejections was a positive sign:
The Detention Gatekeeper acts independently from case workers making recommendations about detention (who, themselves, develop their recommendations on a case-by-case basis, which is why the Department would expect the Gatekeeper’s rejection rate to be low). That ensures assessments of suitability for detention are always made in advance and independently.103
76.The then Director General of Immigration Enforcement, Hugh Ind, explained, “I know when I go around my teams, there is—for want of a better word—some friction between the teams because they know there is a process where they need to persuade the Gatekeeper they have done the correct checks”.104 However, Peter Clarke, HM Chief Inspector of Prisons, told us, “screening is not as perhaps effective or as thorough as it could be. Otherwise, the very serious decision to put somebody into detention, one would have thought would have led to a lower subsequent release rate than 50%”.105
77.It is shocking that, other than asylum interviews, there is no face to face contact between immigration decision makers and the detainee during the initial decision to detain. We believe this contributes to the cavalier attitude towards detention decisions. Had decision-makers ever met Paulette Wilson before deciding that she should be detained, it might have made them more likely to spot the injustice in her case or realise that there was a problem. It is a basic tenet of our legal system that when judges take the decision to detain, that person is brought before the court. Therefore it is extremely troubling that in the immigration and asylum 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. We welcome the Government’s recent introduction of pre-departure teams [PDTs] within a number of IRCs, but their coverage is currently very patchy and such teams are only relevant to those individuals already in detention. Further, their staff are not caseworkers and cannot make decisions on cases.
78.We strongly support Mr Shaw’s recommendation that all “caseworkers involved in detention decisions should visit an IRC either on secondment or as part of their mandatory training” but we believe that is not the same as meeting someone as part of the decision-making process. We recommend that immigration caseworkers involved in the decision-making process to detain an individual should meet that individual at least once, in person, prior to finalising the detention decision or/and within one week of their detention.
79.The introduction of the Detention Gatekeeper function is a welcome step forward, but the current approach still fails to provide sufficient safeguards to prevent inappropriate detention or the detention of vulnerable adults. As the latest Shaw report noted, large numbers of vulnerable people are still being detained. This indicates that vulnerable people are being wrongly routed into detention due to the Gatekeepers’ incorrect validations or misplaced challenges of Home Office caseworkers’ decisions. There needs to be a thorough, face-to-face pre-detention screening process to facilitate the disclosure of vulnerability. Where there is no deemed risk of absconding, this screening should be undertaken at the point of enforcement activity, for example, as part of the reporting process where UK Visas and Immigration officials or Enforcement officers should feedback any concerns they have about a person’s suitability for detention. Even a short period of detention for someone who, for example, has been a victim of torture could be extremely traumatic. Therefore it is essential that a proper pre-screening assessment is done.
Screening on arrival
80.The absence of a thorough pre-detention screening means that the reception process is a critical opportunity to identify the presence of vulnerabilities while the health needs of an individual are assessed. All detainees entering an IRC receive a healthcare screening within two hours of admission to identify any previously unknown immediate or long-term healthcare issues. If any issues are identified they will be offered an appointment with a doctor within 24 hours.106 Clinical pathways into other healthcare services (e.g. mental health) can be initiated at this point depending on the outcome of the screening. The British Medical Association (BMA) raised concerns that a reliance on self-reporting, which means asking individuals who may have experienced trauma or violence to share sensitive information with a stranger, during an often fraught or anxious reception process, can lead to vulnerabilities not being identified.107
81.Detainees are frequently moved at night, a practice criticised by the Independent Monitoring Boards of both Morton Hall and Yarl’s Wood and by the HMIP. We heard from Janahan, a former detainee at Morton Hall IRC, that detainees arriving late may be denied food:
They put me in the room and it was 8 o’clock or something. They locked me in and I rang the bell. I was like, “Can I have something to eat?” They were like, “No, it has all been served and all been sent back. You cannot have anything until the next day morning”. This is the first day.108
82.In his latest report on Harmondsworth IRC, the Chief Inspector of Prisons found that a fifth of detainees arriving at Harmondsworth had been transferred overnight and that “there was no first night support for new arrivals. The induction process was rushed and ineffective at engaging detainees”.109 The BMA raised particular concerns about the impact of night transfers on the effectiveness of the screening process. They argued that such moves should be avoided unless in exceptional circumstances:
There are reports that these initial assessments are taking place in the middle of the night, depending on the arrival time of the detainee. Individuals may be exhausted or disorientated after a long journey or scared and anxious about the prospect of being detained, thus inhibiting their ability or willingness to share detailed information.110
83.Professor Nick Gill, Dr Daniel Fisher, Jennifer Smith and Andrew Burridge suggested that detainees may have only brief discussions with medical staff on arrival, limited to medication and other health needs: “As a result, many [detainees] claimed not to have been informed of the Rule 35 process and of the need to request a report from medical staff on arrival”.111 Voke, a former detainee at Yarl’s Wood, described her first night experience to us:
I was taken to Yarl’s Wood. I got there at 9pm in the night. When I got there, the nurse did ask me some questions but where they failed me is they did not ask me if I had been tortured before or whether I had been locked up before. They did not ask me that. The only thing they asked me was, “Have you been to prison?” and I said no. I asked the question, “Is this a prison?” because I am scared of the dark. That was my first question. She said to me, “No, this is not a prison. This is detention”. Immediately I heard that I started crying. I said, “Are you going to lock me up? Because I don’t like darkness, I cannot stay in the dark if you lock me”. They said, “No”.
That was the beginning of my experience in Yarl’s Wood. They did not ask me if I was tortured, if I have been trafficked, anything. These are key questions they did not ask me before taking me inside.112
84.The Gatwick Detainees Welfare Group (GDWG) reported that detainees are being asked on arrival to complete a Home Office form on whether they wish to opt in or opt out of the process for an automatic bail hearing after four months. The GDWG told us that it is unclear why detainees should be expected to opt in to something that is automatic nor why anyone would want to opt out.113 There is also concern that detainees are being asked to make a crucial decision in the early moments of their detention when they will be anxious about their situation, may not be fully aware of what is happening and may yet to have sought legal advice. On 24 July 2018, the Immigration Minister, Rt Hon Caroline Nokes MP, told us that “The ability of detainees to opt out of the automatic bail referral is set out in primary legislation in Schedule 10 to the Immigration Act 2016”. She added that:
A detainee may benefit where they are preparing their own bail application but are not yet ready to submit it. For example, where they are still waiting for their financial condition supporters or accommodation to be confirmed, and the timing of the auto-referral cuts across this.114
85.The Home Office needs to improve its performance in capturing detainee vulnerability in the early days of an individual’s detention. We are concerned by reports that initial screening processes are rushed and that detainees are made insufficiently aware of their importance. Detainees arriving in detention for the first time are understandably reluctant to talk openly about traumatic past experiences but the crucial importance of reporting vulnerability to enable potential release should be made explicit. Similarly, immigration detention centre staff should explain to a newly arrived detainee that they may be automatically referred for a bail hearing after four months of detention, and at what other stages of their detention they can apply for immigration bail.
86.The Government should stop night moves unless exceptional criteria are met, and the length of time detainees spend in transfer should be kept to a minimum. We recommend that future contracts concerning detainee transfers should stipulate a 7pm cut-off for arrival and should require that prior approval must be sought from the Home Office for exceptional circumstances where that deadline will not be met. Requests for such approval should also be reported to the Independent Monitoring Board so that there is oversight of its use.
Provision of legal advice
87.People who are detained in Immigration Removal Centres (IRCS) can receive 30 minutes’ free legal advice through the Legal Aid Agency (LAA) funded Detention Duty Advice Scheme (DDA).115 However, the DDA scheme is not available to immigration detainees in prison.116 The DDA provides legal advice through a range of solicitors’ firms that have immigration and asylum contracts with the LAA and that “obtain additional and exclusive contracts to run regular DDA surgeries in IRCs”.117 The Home Office told us that “Detainees are entitled to receive up to 30 minutes of advice regardless of financial eligibility or the merits of their case”.118 However, we heard evidence which indicated a number of issues with detainees’ access to legal advice under the DDA scheme.
Awareness of legal advice provision in IRCs
88.The Home Office IRC Operating Standards stipulate that “Detainees must be advised of their right to legal representation, and how they can obtain such representation, within 24 hours of their arrival at the centre”.119 Nevertheless, a report commissioned by the Bar Council highlighted statistical data from BID, which showed that “in May 2017, awareness of the scheme [DDA] among respondents was around 67%, the lowest since it was introduced in 2010–11”.120 In BID’s June 2018 Legal Advice Survey they found that, “Only 50% of detainees held in immigration detention currently have a legal representative, and of those, only 61% of those have a legal aid solicitor”.121 These recent figures from BID would suggest that detainees are either unaware of their right to access legal advice, or have experienced difficulties in accessing advice under the DDA scheme.
Barriers to accessing legal advice
89.In their recent Legal Advice Survey, BID also found that, “57% of detainees without a legal representative cited money as the main reason they were unable to get legal assistance”.122 Although detainees are eligible for 30 minutes’ free initial legal advice, this does not secure further representation. We heard that severe cuts to legal aid following the implementation of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 have made it more challenging for detainees to have their cases taken on by a solicitor beyond the initial 30 minutes advice surgery. The Bar Council told us that, “While cases with a strong human rights element are eligible for legal aid funding for bail and asylum, these are subject to stringent ‘means and merits’ tests. In practice, legal aid funding is very difficult to attain”.123
90.As well as the financial challenges facing detainees, access to online information in some IRCs was reported as a barrier to obtaining legal advice. In its June 2018 Legal Advice Survey, BID found that:
As many as 74% had worked on their own immigration case, but most of these detainees (73%) complained that important websites were blocked in detention. The websites they referred to were those that would have helped them to prepare their case: Home Office website, Government websites, solicitors’ websites, social media, BID and other NGOs.124
91.A recent article published by Freemovement also reported that some IRCs had blocked a number of legal websites. They stated that in response to a Freedom of Information request, the Home Office said that: “There is no policy or other documents outlining which websites are to be blocked or partially blocked for detainees in the immigration detention estate”.125
Delays in access to legal advice
92.During our inquiry we also heard about delays in access to legal advice. James Wilson, Director of Gatwick Detainees Welfare Group (GDWG) told us that there was “a big problem” with prompt access to legal advice at Brook House IRC:
There is a weekly surgery, and two legal aid firms currently have the contracts to come into Brook and Tinsley and see people once a week. There are long waiting lists to see advisers. Sometimes people in detention have never seen a solicitor and might be removed from the country before getting any form of advice. You go on to have problems of very restricted advice anyway, with most of immigration being outside the legal aid scope, so someone may well in the end just see a representative for 30 minutes and then be told that for anything beyond this they would have to pay an amount of money, which in most cases is impossible.126
93.Similarly, in his 2017 inspection of Brook House IRC, the Chief Inspector of Prisons, Peter Clarke, highlighted concerns about delays in detainees’ access to legal advice. He reported that, “at that time of inspection, the next available routine appointment was in nine days, which was too long [ … ]”.127
94.The Ministry of Justice (MoJ) has undertaken a review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which was published on 7 February 2019. More than 130 organisations engaged with the review. When publishing the review the Government stated that it “does not make specific recommendations. The central purpose of the PIR was to carry out an evidence based objective assessment of the impact of the changes made under LASPO”.128 The response is accompanied by a Legal Support Action Plan.129
95.It is evident from what we have heard that the Government’s Detention Duty Advice scheme is flawed and is failing to provide adequate legal safeguarding to those who need it most. Under the DDA scheme, people who are detained in IRCs are eligible for 30 minutes’ free legal advice. However due to severe cuts in legal aid following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), many detainees are not able to access legal advice. Rigorous means and merits tests, as well as a requirement for detainees to demonstrate a strong human rights case means that the harsh reality is, that legal aid funding is extremely difficult to obtain.
96.We deeply regret that the Government has failed to listen to the legal bodies that have submitted their views to the post implementation review of LASPO and to address radically the current failings in the system and provision of legal advice to some of the most vulnerable individuals who are held in immigration detention. We repeat the recommendation made in the Committee’s report on the Windrush generation that legal aid arrangements should be restored for immigration matters in order to allow those with complex cases the access to legal advice they need.
97.People held under immigration powers in prisons subject to deportation procedures, i.e. foreign national offenders who are serving custodial sentences in prisons and who are liable to deportation at the end of their sentences, do not have access to the DDA scheme in prison. This means that they have no guaranteed access to a legal adviser and have to find and contact a lawyer themselves. Foreign national offenders should be afforded the same legal safeguarding provisions as immigration detainees held in IRCs so that, on completion of their custodial sentence, they can be deported or have their immigration status resolved rather than entering immigration detention. This should include access in prison to the DDA scheme.
42 Home Office Enforcement Instructions and Guidance. Chapter 55.5, Levels of authority for detention.
43 Ibid, Chapter 55.5.3, Authority to detain - special cases.
44 Home Office Enforcement Instructions and Guidance, Chapter 55.6.3, Form IS91R Reasons for detention: This form must be “served” on every detained person. “In addition, there must be a properly evidenced and fully justified explanation of the reasoning behind the decision to detain placed on file in all detention cases”. The guidance states that there are “five possible reasons for detention” which are set out on the IS91R form, these are: “• You are likely to abscond if granted immigration bail. • There is insufficient reliable information to decide on whether to grant you immigration bail. • Your removal from the UK is imminent. • You need to be detained whilst alternative arrangements are made for your care. • Your release is not considered conducive to the public good”.
46 Q23 Joint Committee on Human Rights, Oral evidence: Immigration detention, HC 1484, Wednesday 21 November 2018.
47 Q23 Joint Committee on Human Rights, Oral evidence: Immigration detention, HC 1484, Wednesday 21 November 2018.
48 HM Inspectorate of Prisons, Report of an unannounced inspection of Yarl’s Wood IRC, 15 November 2017.
50 Independent, Woman detained in Yarl’s Wood after calling police because ex-partner threatened to kill her, reveals MP, 6 March 2018.
51 Commons Hansard, Urgent Question on Yarl’s Wood Detention Centre, 6 March 2018 col 186.
53 The Bar Council, Dr Ann Lindley, Injustice in immigration detention, November 2017, p20.
55 Home Office, Family separations guidance, 11 December 2017, p6; BID frequently asked questions, see number 5: https://www.biduk.org/pages/88-frequently-asked-questions-faqs#FAQ5
56 The Guardian, UK immigration authorities separating children from parents, 3 July 2018.
57 The Guardian, Home Office broke its own rules on avoiding family separations, 11 March 2018.
58 Home Office, Immigration Returns, Enforcement and Detention General Instructions, Family Separations, Separation principles p6; section 55 of the Borders, Citizenship and Immigration Act 2009
59 Home Office, Adults at risk in immigration detention, 2 July 2018, p11; The AAR guidance states that: “Once an individual has been identified as being at risk, by virtue of them exhibiting an indicator of risk, consideration should be given to the level of evidence available in support, and the weight that should be afforded to the evidence, in order to assess the likely risk of harm to the individual if detained for the period identified as necessary to effect their removal”. There are three levels, with three being the highest. [P12].
60 Home Office, Immigration Act 2016: Guidance on adults at risk in immigration detention, July 2018, p8, Indicators of risk; United Nations, Ageing, accessed 26 January 2019.
61 House of Commons, Home Affairs Committee, The Windrush Generation, Sixth Report of Session 201–19, 3 July 2018; paragraph 63.
62 Channel 4 news, Grandmother, child of the Windrush, told she can’t stay in UK. 1 May 2018, Alex Thomson.
63 Q82 Home Affairs Committee, Oral evidence: Windrush Children, HC990, Wednesday 25 April 2018. Evidence given by the then Home Secretary, Rt Hon Amber Rudd MP.
65 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, a report to the Home Office, January 2016, 4.44, p90; ibid, recommendation 14, p194.
67 Ibid
68 United Kingdom Lesbian and Gay Immigration Group, Still Falling Short, July 2018.
69 UK Lesbian & Gay Immigration Group, Stonewall, No Safe Refuge, Experiences of LGBT asylum seekers in detention, 26 October 2016.
70 House of Commons Library, Briefing Paper Number 7294, 12 September 2018 Immigration detention in the UK: an overview by Terry McGuinness and Melanie Gower, 1.4, p10.
71 Ibid
72 Refugee Council, Detention in the Asylum System, February 2018.
73 As outlined in the Home Office Enforcement Instructions and Guidance, Chapter 55.3.A, “public protection is a key consideration” which underpins Home Office immigration detention policy.
80 Letter to the Chair of the Home Affairs Committee from the Permanent Secretary of the Home Office, Sir Philip Rutnam regarding wrongful detention, 25 June 2018. The Home Office correspondence referred to ‘wrongful’ and ‘unlawful’ detention, however in a parliamentary question 144298 answered by Rt Hon Caroline Nokes MP on 21 May 2018, she stipulated that “taking ‘wrongful’ to be equivalent to ‘unlawful’ compensation for unlawful detention claims for FYs 2012/13 onwards are included in the table”.
81 Parliamentary question to the Home Office: Compensation: Written question - 144298, asked by Mr Steven Reed (Croydon North) on 15 May 2018: To ask the Secretary of State for the Home Department, how much his Department has paid in compensation for (a) wrongful detentions and (b) wrongful deportations in each year since 2010. Answered by Rt Hon Caroline Nokes MP on 21 May 2018, she stipulated that “taking ‘wrongful’ to be equivalent to ‘unlawful’ compensation for unlawful detention claims for FYs 2012/13 onwards are included in the table”.
82 Letter to the Chair of the Home Affairs Committee from the Permanent Secretary of the Home Office, Sir Philip Rutnam regarding wrongful detention, 25 June 2018.
83 Evidence session on the Work of the Home Office, 13 November 2018.
85 Home Office (IDD0044); Letter to the Chair of the Home Affairs Committee from the Permanent Secretary of the Home Office, Sir Philip Rutnam regarding wrongful detention, 25 June 2018.
86 Letter from Sir Philip Rutnam 18 December 2018; See Table C3 on page 24.
87 Immigration Law Practitioners’ Association (IDD0042); Four of the cases that were found in violation of article 3 ECHR were dealt with by ILPA member firm Bhatt Murphy: R (S) v SSHD [2011] EWCH 2120 (Admin), R (BA) v SHHD [2011] EWCH 2748 (Admin), R (HA) v SSHD [2012] EWCH 979 (Admin) and R (MD) v SSHD [2014] EWCH 2249 (Admin).
88 Stephen Shaw, Assessment of government progress in implementing the report on the welfare of vulnerable persons: a follow up report to the Home Office, July 2018, 2.93.
89 In response to Stephen Shaw’s first Review into the Welfare in Detention of Vulnerable Persons the Government introduced the adults at risk policy to protect vulnerable people from harm in detention. The Government said that its intention was that the Immigration Act 2016: Guidance on adults at risk in immigration detention would “lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal” , p5.
91 Immigrants: Detainees: Written question - 71612, 21 April 2017.
95 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons: A follow-up report to the Home Office, 4.3, p72: In his latest review Stephen Shaw stated that: “Other than asylum interviews, most Home Office casework decision making is completed with no face-to-face engagement. Assessments on individual vulnerability are made at different decision points, by different Drafting amendment with different knowledge, skills and training”.
97 Q542; Stephen Shaw; p84, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons p84, 4.66.
98 Home Office (IDD0044); Stephen Shaw’s Assessment of government progress in implementing the report on the welfare of vulnerable persons: a follow up report to the Home Office, July 2018, 4.67.
103 Letter from the Permanent Secretary to the Chair of the Committee, dated 14 May 2018.
106 Home Office Adults at Risk in immigration detention, 26 February 2019, p19; The Detention Centre Rules 2001, Rule 34.
109 HMIP report on Heathrow Immigration Removal Centre, Harmondsworth Site, 2–20 October 2017.
115 Injustice in Immigration Detention Perspectives from legal professionals, Research report commissioned by the Bar Council Dr Anna Lindley, SOAS (University of London) November 2017, p38; The Legal Aid Agency (LAA) is an executive agency of the Ministry of Justice (MoJ) established under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 to commission, procure and pay for legal aid services from providers (solicitors, barristers, mediators and the not for profit sector). The Legal Aid Agency and the majority of the provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 apply to detention in England and Wales only.
116 HM Inspector of Prisons, People in prison: Immigration detainees, November 2015, p6.
117 Ibid, p38
119 Home Office, Detention services operating standards manual, Published 14 September 2011, Access to Legal Services, p1.
120 Injustice in Immigration Detention Perspectives from legal professionals, Research report commissioned by the Bar Council Dr Anna Lindley, SOAS (University of London), November 2017, p38; according to the Bar Council’s report, “The only publicly available statistical data on legal advice in detention is BID’s regular Legal Advice Survey, which obtains responses of people who have open casework files with the organisation”.
121 Bail for Immigration Detainees, Six monthly survey reveals serious gaps in detainees’ access to legal advice and representation, 21 June 2018; this survey was their 15th since BID first surveyed immigration detainees in 2010. A total of 103 detainees were interviewed between 3 April 2018 and 20 April 2018. Detainees held in prisons were not included in the interview sample.
122 Bail for Immigration Detainees, Six monthly survey reveals serious gaps in detainees’ access to legal advice and representation, 21 June 2018.
124 Bail for Immigration Detainees, Six-monthly survey reveals serious gaps in detainees’ access to legal advice and representation, 21 June 2018.
125 Conor James Mckinney, Freemovement, Immigration detention centres continue to block legal websites, 14 January 2019.
126 Q29, Home Affairs Committee, Oral Evidence: Brook House Immigration Removal Centre, HC 346, 14 September 2017.
127 Report on an unannounced inspection of Brook House Immigration Removal Centre by HM Chief Inspector of Prisons, 31 October–11 November 2016, p26.
129 Ministry of Justice, Legal Support: The Way Ahead, an action plan to deliver better support to people experiencing legal problems, February 2019.
Published: 21 March 2019