Immigration detention Contents

5Length of detention

Casework delays

158.Her Majesty’s Inspectorate of Prisons (HMIP) concludes that inefficiencies in Home Office casework unnecessarily prolong people’s detention. In his 2017 report on Morton Hall the Chief Inspector of Prisons, Peter Clarke, highlighted an asylum case which took the Home Office seven months to resolve and another case where a detainee wanted to return voluntarily, and an emergency passport was obtained, yet it took the Home Office another three weeks to effect removal.219

159.HMIP Inspection Team Leader, Hindpal Singh Bhui told us that one of the main reasons people were detained for extended periods was unnecessary “issues around travel documentation” and “late appeals” that were made. However, he also said there were “consistent issues around the efficiency of the Home Office case-working that can delay someone’s release or someone’s removal”. He highlighted the Home Office delays in processing foreign national offenders, many of whom are held under immigration powers in HM Prisons.

[ … ] there are a number of people held in prisons at the moment, about 400 or so, who are detained under immigration powers. They should be case-worked from the 18-month period before the end of sentence, but often they are not, so many of them would end up being detained after sentence.220

160.Similarly, a former Duty Director at Brook House IRC, Rev. Nathan Ward highlighted the lengthy casework delays with foreign national offenders and suggested they could be addressed if the Home Office started “proceedings while those people are in prison. Or, at the point of the custodial sentence ending, they should release them like any other person and, if they are going to deport them, follow that system”.221 As outlined in Chapter 2, most recent Home Office statistics showed that foreign national ex-offenders made up 53% of the detained population.222

161.Jerry Petherick, Managing Director of G4S Custodial and Detention Services, told us that the most frequent comments received from immigration detainees in the prison estate related “either to access to a caseworker or the very late serving of documentation at the end of their prison sentence”. He added that this was a particular frustration that could result in “incidents of self-harm or indiscipline”.223

162.Bail for Immigration Detainees (BID) regularly highlights problems on its Twitter feed with Home Office casework. Recent examples included:224

163.Tom Nunn, Legal Manager at BID, told us that he was concerned about the way the Home Office was dealing with “administrative investment in immigration detention”. He said that it “feels like people are completely forgotten” in detention until something happens, such as an upcoming bail hearing, at which point the Home Office suddenly seems able to make a decision. He added that “places like Morton Hall in particular, people do not seem to be able to get access to the Home Office to talk to an individual who is dealing with their case”.225

164.In evidence to the Committee the Immigration Minister, Rt Hon Caroline Nokes MP, told us that she was very conscious that the Home Office was a large department “affecting people’s lives every day” and that it was “crucially important that we work extremely hard to be able to give good decisions in a timely fashion”.226 The strain on the Home Office’s capacity to process asylum applications was addressed in our predecessor’s 2017 report on asylum accommodation. The Committee recommended that the Government needed to take urgent action to increase its capacity to process applications. It stated that:

There are clear benefits in applications being processed quickly and these far outweigh the cost of increasing capacity in the responsible section of the Home Office, UK Visas and Immigration.227

165.In his 2017–18 annual report, the Independent Chief Inspector of Borders and Immigration reported that “the greatest cause for concern was not a particular function or failing but the overall capacity and capabilities of the Home Office’s Borders, Immigration and Citizenship System (BICS)”. He noted that, “the more pressing worries were the staffing gaps, shortages of skills and experience, and the inability to recruit, train and replace staff quickly enough”.228 In evidence to the Committee, the Immigration Minister acknowledged that the Home Office was “a Department that needs more resources. It needs more people. It needs more experienced caseworkers who are in a position to be able to process claims accurately and effectively”.229

166.Home Office caseworking inefficiencies are unnecessarily prolonging people’s detention, with some being held for more than three years. This is unacceptable and adversely affects the most vulnerable people in detention. We welcome the Immigration Minister’s acknowledgement that her Department needs more caseworkers and call on the Government to urgently increase the resources and staffing in the UK Visas and Immigration (UKVI) caseworking team to ensure that people’s immigration cases are swiftly resolved.

167.The number of foreign national offenders who are held in prison under immigration powers despite having served their sentence remains far too high. People should not be held in prison beyond the end of a custodial sentence. The Home Office should ensure that notifications of liability for deportation are sent to foreign national offenders several months before the end of their custodial sentences. This would enable the necessary representations and legal challenges to take place and, where these were unsuccessful, provide for the timely organisation of travel documents. Importantly, this would avoid unacceptable situations of double punishment.

Home Office decisions to maintain detention

168.In Stephen Shaw’s first report on immigration detention, he referred to Medical Justice’s evidence that: “numerous court cases have demonstrated that ‘monthly reviews’ are often cursory and frequently fail to take into consideration emerging issues, such as deteriorating mental health”.230 Stephen Shaw also noted that during his visit to Tinsley House IRC, “the Gatwick Befrienders organisation suggested that caseworkers cut and pasted the information that went into monthly detention reviews”. He added that “the whole process led to helplessness and was dehumanising”.231

169.Much of the evidence we received highlighted concerns with Home Office decisions to maintain detention, despite the existence of the statutory review framework and Home Office independent review panels. Detention Action said that “in many circumstances” immigration factors “will trump risk of harm to the individual”. They explained that “Negative indicators of non-compliance, including irregular presence in the UK for some time, failing to comply with voluntary return or making a late asylum claim, and any history of offending are weighed against the risk of harm to the individual”. They highlighted that of 48 cases they identified as having triggered the Adults at Risk (AAR) policy between May and August 2017, “detention was maintained in 85% cases (41 of 48 clients)”.232 Similarly, Amnesty International (UK) argued that the Home Office’s reasons for maintaining detention were “often based on strained reasoning and unrealistic assessments of the prospect of removing someone from the UK”. They said that “Detention is often maintained unless release cannot be avoided–reversing the appropriate position of detention as the last resort”.233

170.In its 2017 inspection report of Yarl’s Wood, HMIP stated that the Home Office’s independent review panel had recommended the release of a detainee on two occasions after the consideration of two Rule 35 reports. The detainee was assessed at level 3 of the AAR policy “because there was professional evidence that a period of detention was likely to cause harm”.234 However, on both occasions the panel “were overruled by a senior Home Office official”.235 In written evidence to the Committee, the Home Office stated that “Any decision to maintain detention following receipt of a Rule 35 is subject to an additional check by a senior case worker who will critically review the reasoning with the presumption always in favour of release”. However, it confirmed that “Data on the rationale for decisions not to release individuals subject to Rule 35 reports was not centrally recorded and could be obtained only through detailed manual scrutiny of individual casefiles”.236

171.The Detention Centre Rules 2001 clearly stipulate that detainees must be provided with written justification for their detention at the time of their initial detention followed by monthly reviews. From the evidence we have seen, this is clearly not always happening. The outcome of these monthly detention reviews is life changing for the most vulnerable people in detention. If there is no prospect of imminent removal, then people should not be detained.

172.Failure to provide justification for continued detention will only compound detainees’ frustration and may lead to self-harm and violence in immigration removal centres. Home Office decisions to maintain detention must be clearly justified so that a person knows exactly why they are being detained, and if appropriate can challenge the Home Office decision.

173.HMIP has highlighted instances where senior Home Office officials have overridden their own independent review panel’s decisions to release vulnerable detainees, and continued detention, without any justification. This raises serious questions about the purpose of the Home Office’s independent review panel. Ultimately, the Home Office cannot and should not be maintaining detention by default. We are also extremely concerned about the lack of any consistent information on the overturning of review panel decisions which could be used for monitoring senior officials’ decision-making and ensure proper accountability.

174.Following the Home Secretary’s commitment, in response to Stephen Shaw’s follow up review, to publish more data on immigration detention, we urge the Home Office to begin to publish its data on the rationale for decisions not to release individuals subject to Rule 35 reports by 1 July 2019.237 This data can be anonymised, and therefore there should be no reason why the Home Office cannot publicly share this information.

175.The Home Office should also provide more transparent and detailed reporting about the reasons for continued detention. Data on the barriers to release of individuals detained for more than six months should be published as part of the Home Office’s next quarterly immigration statistics. We would also urge the Home Office to improve its learning from cases where people are released from detention on immigration bail to prevent people being inappropriately detained in the future. If this learning is successfully embedded in Home Office operations, we would expect the number of cases where people are held in immigration detention for over six months to decrease.

Case progression panels

176.In his first report, Stephen Shaw highlighted the need for greater independence in detention decision making processes and recommended that, “the Home Office consider if and [in] what ways an independent element can be introduced into detention decision making”.238 In response to Shaw’s recommendation, the Home Office introduced case progression panels in February 2017 to “provide regular additional checks on continuing suitability for detention” and as “an opportunity for identifying action to progress cases more quickly, reducing time spent in detention”.239 The case progression panels are comprised entirely of Home Office officials. They consider the cases of people held for periods of three, six, nine, and twelve months detention and look at detention decisions independently of the case owner.240 For any detainees held for more than twelve months, their cases are “reviewed by a panel chaired at a senior level every subsequent three months, complemented by an internal monthly Director-chaired Criminal Casework Internal Review Panel”.241

177.In his follow up review, Shaw criticised the independence of the Home Office casework progression panels stating that they had not been “implemented as I had envisaged”.242 As part of his research, Shaw observed five of these panel reviews in total, covering all timescales i.e. cases held in detention for 3, 6, 9, and 12-month periods. He found that:

The panels did not always consider AAR factors as part of the decision-making process. Indeed, the paperwork did not reference information about AAR. This is a matter of considerable concern. I found evidence of inconsistent interpretation of AAR levels by caseworkers that then led to inconsistent recommendations at panel level. There was also little consideration of the fact that prolonged detention can lead to increased levels of vulnerability.243

178.Shaw also reported that “a theme across all panels was that there had been missed opportunities to progress towards removal earlier in the detention period”. He highlighted that the case progression panels could “only make recommendations” to release or reject “specific casework actions”. In response to how frequently these recommendations were made, Shaw expressed his concern that the Home Office “was unable to provide this information”.244

179.In written evidence to Stephen Shaw’s latest report, the Immigration Law Practitioners’ Association (ILPA) also highlighted their concerns about the independence and effectiveness of the panels, stating that “these panels are entirely made up of Home Office officials and there is no opportunity for detainees or their representatives to provide evidence and oral or written representations. It is ILPA members’ experience that like ordinary detention reviews, decisions are often made on an incorrect understanding of the factual situation”.245

180.HMIP also noted serious concerns with the case progression panels. In its 2017 report on Harmondsworth, HMIP reported that recommendations of the case progression panel “were often rejected”. In the 12 cases they looked at, the panel “recommended the release of five detainees sometime more than once, yet detention was maintained every time. In one case, the panel had unsuccessfully recommended the release of a detainee on three separate occasions”.246

181.The Home Office introduced case progression panels to provide internal independence to the detention decision-making process at three-monthly intervals. However, we question whether a process that remains internal can be truly independent. It is clear from the evidence we have received that this review process is not functioning as an effective independent check on decisions to maintain detention. We echo Stephen Shaw’s comment in his follow up review, that “there remains a need for robust independent oversight”.247

Barriers to release

Home Office assessment of ‘absconding’ and ‘non-compliance’

182.A detainee who is held under immigration powers by the State has the right to apply to be released on immigration bail to the First-tier Tribunal. However, the opportunity to exercise this right relies heavily on detainees’ ability to navigate the immigration bail process. This would be dependent on the detainee’s knowledge of and access to legal advice and representation, as well as being able to access a wider support network - including for example personal guarantors.

183.The Home Office assessment of the ‘risk of absconding’, a key rationale for detention, is also a significant factor in the Home Office’s decisions to continue detention. Home Office caseworkers are also required to consider an individual’s history of compliance with the immigration authorities.248 In a report commissioned by the Bar Council, several lawyers were interviewed about their perspectives on Home Office decisions to detain and on its interpretation of the ‘risk of absconding’ and ‘non-compliance’. Some suggested that:

Home Office decisions to detain often give excessive and unjustifiable weight to any history of ‘non-compliance’ with the immigration authorities. This might for instance include: using a false document when this was the only way available to you to enter the UK to claim asylum; breaching visa conditions while under the control of traffickers; overstaying a visa to remain part of your child’s life while trying to regularise your status; missing a reporting appointment because of an emergency. These are understandable outcomes of people trying to navigate a complex and changing immigration system, and do not automatically imply a greater risk of absconding”.249

184.Similarly, Bail for Immigration Detainees reported that the Home Office has “provided evidence to show that only 5% of people subject to immigration control abscond. The real figure is likely to be even lower as the mere fact of missing a reporting event (perhaps through illness) is categorised as absconding”.250

185.Bail for Immigration Detainees (BID) regularly tweets about the status of clients’ immigration bail cases it supports. On 30 November 2018, it reported that a client was released on immigration bail after one month in detention. This was the third time their client had been detained. The client was separated from two British children with independent expert evidence of the damage this has caused. They stated that the Home Office falsely claimed that their client had missed reporting events and when pressed in court, admitted it had no such evidence.251

186.In 2017, the Independent Chief Inspector of Borders and Immigration (ICIBI), reported that: “In December 2016, there were 6,989 recorded instances of a scheduled reporting event not being completed out of a total of 75,522 reporting events scheduled for that month. This represents a ‘non-compliance’ rate of nine per cent”.252 The Chief Inspector concluded that “The way non-compliance with reporting restrictions was recorded and treated was inconsistent [..]”.253 An individual can be re-detained if reporting restrictions are breached.

Challenges within the immigration bail system

187.In written evidence to the Committee, the Law Society of Scotland raised another significant barrier to release from immigration detention, that being the requirement for the Home Office to consent to bail in certain circumstances. This was introduced by the Immigration Act 2014 and means that, as was the case in Roszkowski v Secretary of State for the Home Department [2017] EWCA Civ 1893 at [54], the Secretary of State can refuse consent to bail granted by an immigration Judge.254 Although this requirement applies in very limited circumstances, the fact remains that the Government can overrule a decision of the judiciary and calls into question the Home Office’s claim of guaranteeing independent judicial oversight.255

188.Another challenge with the immigration bail process is securing accommodation for individuals on release from detention. On 15 January 2018, new provisions of the 2016 Immigration Act regarding immigration bail came into force.256 Liberty explained that the Immigration Act 2016 “repealed provisions under which people in detention accessed accommodation in order to be released”. They told us that “The guidance supplied by the Home Office to explain the new bail provisions is opaque and could mean an individual is presented with a choice between homelessness or remaining in detention”.257

189.There are specific provisions relating to accommodation for asylum seekers and refused asylum seekers that remain substantively the same following the Immigration Act 2016. However, one of the main mechanisms for those in detention to access accommodation on release has been changed. A briefing by Bail for Immigration Detainees (BID) outlined the complexities and failings of the new immigration bail system. Under the previous policy [Section 4 (1)(c) of the Immigration and Asylum Act 1999], “homeless detainees could apply for accommodation from within detention if they had nowhere to reside when released”.258 Under the new system, there are various routes to securing accommodation depending on the immigration status of the homeless detainee, but as BID’s briefing shows, these routes are flawed:

190.The Independent reported the case of a “male asylum seeker who was granted bail in March [2018] after spending 10 months in detention, but his application for asylum accommodation was rejected by the Home Office on the grounds that he was “not destitute by the fact that he is being housed and his dietary needs are catered to”.260

191.Speaking about his experience of working at Brook House IRC from 2011 to 2014, former duty manager Rev. Nathan Ward told us that he knew of “two particular cases where they actually refused to leave the centre because they had nowhere to go”.261 He said that:

Some people are released, and some are actually just left on the street by the side of Gatwick airport to fend for themselves.262

192.There are a multitude of barriers which prevent some of the most vulnerable people in immigration detention from being released. The immigration detention bail process is unnecessarily complex and relies heavily on a detainee’s knowledge of and access to legal advice and representation to secure immigration bail. Furthermore, the Home Office is attributing excessive weight to absconding and non-compliance which, as we have learnt, could simply mean that an individual has missed a reporting appointment because of illness.

193.It is unacceptable that some detainees are being forced to languish in immigration detention or in some cases are being thrown onto the streets because the Home Office is not ensuring people can secure accommodation post release. This is unacceptable and a breach of people’s fundamental human rights.

194.The Home Office should urgently review the new immigration bail provisions introduced in January 2018, which, a year on, are clearly not working - in particular to ensure that a lack of accommodation is not preventing immigration bail. The process should be made much simpler for individuals to navigate, and ultimately detainees should not be faced with a choice of destitution or remaining in immigration detention.

195.Parliament passed Section 95 of the Immigration and Asylum Act 1999 which ensures that asylum seekers are not made destitute and homeless and lacking any means of remedying their position, given the restrictions on asylum seekers working in the UK. The provision of accommodation to destitute asylum seekers is a minimum requirement in line with the UK’s international human rights obligations under the Refugee Convention and the prohibition against inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights. We are extremely concerned by evidence that the way in which the Home Office is applying this provision means that an asylum seeker in detention cannot satisfy the Home Office’s destitution test for accommodation at the point of release, even if they would be homeless and destitute immediately upon release. Such an approach is perverse. In practice, this means that the Home Office makes it impossible for an impecunious asylum seeker in detention to access accommodation. It can also mean the poorest asylum seekers are locked up for longer simply for being poor. Such an approach risks breaching an individual’s human rights. The Home Office must ensure that destitute asylum seekers in detention are allowed to access accommodation under Section 95 of the 1999 Act and that immigration bail is not refused solely due to a lack of such accommodation.

Automatic immigration bail after four months

196.Following Stephen Shaw’s recommendation that “the Home Office give further consideration to ways of strengthening the legal safeguards against excessive length of detention”, the Immigration Act 2016 introduced a new duty on the Secretary of State to provide for automatic bail hearings after four months of detention.263 This provision was implemented on 15 January 2018. However, as highlighted in Shaw’s first review, this provision “applies to all detainees other than those detained pending deportation (i.e. FNOs) and persons detained pending removal in the interests of national security”.264

197.Shaw raised concerns in his first review about the “lack of safeguards for FNOs, the majority of whom are subject to deportation procedures” and “are those who are most likely to have excessive length of detention”.265 He added that “Whatever their past crimes, they surely have an equal right to independent consideration of the detention decision”. Shaw called for the automatic bail provisions to “be extended to those in detention awaiting deportation”.266 The excessive length of detention for FNOs was confirmed by the Immigration Minister, Rt Hon Caroline Nokes MP, in evidence to the Joint Committee on Human Rights: “I can certainly assert confidently that everybody who has been in detention for over a year is a foreign national offender”.267

198.As at 10 December 2018, 170 people had submitted applications for automatic bail hearings at the four month point, of whom 17 (10%) were granted bail.268 NGOs have been critical of the implementation of the policy. BID told us in written evidence that auto-bail “is not working effectively” as “detainees often do not have sufficient advance notice, are not assisted with preparation, nor do they have automatic access to legal assistance”.269 Liberty described the hearings as “haphazard” and echoed what BID told us, submitting that “those held in detention [are] not given advance notice of bail hearings and [are] forced to appear without legal representation and interpreters”.270 The Gatwick Detainees Welfare Group submitted written evidence reporting that individuals were being asked to sign a form on arrival in detention waiving their right to an automatic bail hearing.271

199.On 24 July 2018, in response to Shaw’s follow-up review the Home Secretary, Rt Hon Sajid Javid MP, said that he wanted to “to pick up the pace of reform” and announced that the Home Office would “pilot an additional bail referral at the 2-month point. Halving the time in detention before a first bail referral”.272

200.Evidence submitted to the Committee makes it clear that the automatic bail hearing process is not functioning as it should. Reports that detainees are being asked to waive their rights in this regard are particularly troubling. Bail hearings should be scheduled to give detainees adequate time to prepare, and applicants should have access to interpretation, should they so need it, and legal representation as a matter of course.

201.We support Stephen Shaw’s concerns in his follow-up review about the lack of access to legal safeguards for individuals held under immigration powers in prison. It is neither just nor right to deny people detained in prisons the same access to legal safeguarding that is available to detainees held in Immigration Removal Centres. Foreign National Offenders are subject to deportation procedures and are often held in detention for very long periods of time. We support Shaw’s call for the Home Office to extend the automatic immigration bail provisions. These should be extended to all FNOs, including individuals detained under immigration powers in prison who are pending or awaiting deportation.

Time limit

202.The UK is the only country in Europe without a limit on the length of time someone can be held in immigration detention. This contrasts with other EU member states who signed the EU Returns Directive, which sets the upper limit of detention to six months, extendable to a maximum of 18 months in certain circumstances.273 Ireland, like the UK, is not a signatory to the EU Returns Directive but it has a detention time limit of 21 days. Other European countries have varying approaches to the time limit, such as France (90 days), Iceland (42 days) and Spain (60 days).

203.Judicial oversight early in the process of detention and deportation would establish whether an individual had been lawfully detained. Research commissioned by the Bar Council argued that a time limit would put “the onus on public authorities to make more careful decisions and act diligently, as seen with historic changes in the UK’s criminal justice and mental health systems”.274 The unlimited duration of detention in the UK also contrasts with the UK criminal justice system, in which the police can hold individuals suspected of a crime in custody without charge for up to 24 hours. If suspected of a serious crime, individuals can be held in custody for up to 36 or 96 hours, subject to an application for extension by the police.275 UNHCR told us that they had “repeatedly called” for a time limit on immigration detention. They said that “Indefinite detention damages people, physically and mentally–not only the detainees but their children and other family members”. They also highlighted that “Mental stress is further aggravated by the widespread practice of arbitrary re-detention of released detainees”.276

204.Independent inspection bodies have routinely identified the frustration felt by many detainees, at the length of their detention and the uncertainty surrounding their future, as detrimental to the mental health of the individual and a major challenge for staff to manage. In his 2017 report into Yarl’s Wood IRC, the Chief Inspector of Prisons found that “14 people had been held between six months and a year”, and “one detainee had recently been released on bail after three years in detention”.277 He called for “a strict time limit on the length of detention”.278 In its 2017 inspection of Morton Hall IRC, HMIP also found “too many detainees were held for prolonged periods; 31 had been held for over a year, including three who had been detained for two years, and an additional two men had been detained on separate occasions totalling more than three years”.279 On 13 March 2018, HM Chief Inspector of Prisons again called for a strict time limit on the length of detention, this time in his report on Harmondsworth IRC. He noted that some detainees had been held “too long”, with 23 held for more than a year and one man held for more than four and a half years.280

205.Table 3 below shows recent figures for the length of detention of immigration detainees. Out of 1,784 people held in immigration detention at the end of December 2018, 754 had been held for less than 28 days and 208 had been held for more than 6 months.281 It also shows that the percentage of people that were held in detention for short periods of time - less than 28 days - has increased from 30% in Q4 2017 to 42% in Q4 2018.282

Table 3: People in detention by length of detention

206.In a letter to the Prime Minister in January 2017 the then Home Secretary, Rt Hon Amber Rudd MP, indirectly acknowledged that the Home Office was detaining people unnecessarily. She stated that she had:

[ … ] instructed IE [Immigration Enforcement] to renew its focus on removability in order that beds are not being blocked by illegal immigrants that we have no realistic hope of removing from the country. This means that those with no near-term prospect of removal would be released into the community on strict reporting restrictions. [ … .] In that context I have instructed my officials to expedite the work on tagging and other alternatives to detention.283

207.Momentum for change within the immigration detention system would seem to be growing. On 24 July 2018, in response to Shaw’s follow-up review the Home Secretary, Rt Hon Sajid Javid MP, stated that he had asked his “officials to review how time limits work in other countries”. He added that when the review was complete, he would “further consider the issue of time limits on immigration detention”.284 On 5 December 2018, in evidence to the Joint Committee on Human Rights, the Immigration Minister, Rt Hon Caroline Nokes MP, confirmed that she was “looking closely at the issue of time limits to understand how we can best have a detention system that is fair to those who may be detained but also upholds our immigration policies, and can act as a deterrent to those who might seek to frustrate those policies”.285

208.Most recently, the Joint Committee on Human Rights published a report on immigration detention in which it recommended a time limit on immigration detention:

[ … ] where all other alternatives have been explored and considered unsuitable and detention is considered necessary, the maximum cumulative period for detention should be 28 days. The only exception to the 28 day limit should be that in exceptional circumstances—for example, when there are no barriers to removal and the detainee is seeking unreasonably to frustrate the removal process—the period of 28 days could be extended by a further period of up to 28 days on the decision of a judge.286

Impact of immigration detention on health

209.Stephen Shaw’s first review on immigration detention found that “immigration detention has a negative impact upon detainees’ mental health” and “the impact on mental health increases the longer detention continues”.287 Various medical bodies have also articulated the negative impact that indefinite detention has on an individual’s mental health. The British Medical Association has reported on the “significant health effects indeterminate detention can have on individuals” and has called for “a clear limit on the length of time that people can be held in detention, with a presumption that they are held for the shortest possible time”.288 Similarly, the Centre for Mental Health found that “[t]he longer someone spends in detention, the more negative an impact it has upon their mental health”, with the distress experienced being “disabling, and even life-threatening” even in the cases which do not meet a clinical threshold. The analysis draws attention to the “best available UK evidence” which indicated that “the critical point for a negative impact on mental health was at 30 days”.289

210.In 2014, a joint inquiry by the All Party Parliamentary Group (APPG) on Refugees and the APPG on Migration published a series of recommendations for systemic reform of immigration detention in the UK. Following publication of the inquiry’s report, former Chair of the APPG on Migration, Paul Blomfield MP said in a Backbench Business debate that the joint inquiry was repeatedly told that:

[ … ] detention was worse than prison, because in prison people know when they will get out.290

A time limit in practice

211.The lack of a detention time limit was a constant theme in the evidence we received during our inquiry. In its response to the UN’s Universal Periodic Review recommendation, that the UK stop the practice of arresting migrants for unspecified periods, the UK Government said that an individual’s detention remains under regular review by the Government and, secondly, that individuals can apply for release on immigration bail and can challenge the lawfulness of their detention in the courts.291 However, the system is currently failing to reduce the detention of many individuals.

212.In terms of establishing what a workable statutory time limit length might be, it is important to look at the Home Office’s current capacity to decide whether removal is imminent. In evidence to the Joint Committee on Human Rights, Stephanie Harrison QC, a barrister at Garden Court Chambers, implied that 28 days would be a reasonable time limit to settle on, given that the Home Office’s Enforcement Instructions and Guidance stipulated that detention should only be maintained when removal is imminent (i.e. within 28 days (four weeks)).292 Both the Detention Forum and Stephanie Harrison noted that that this four-week, defined time period even included more complex cases dealt with by the Criminal Case Directorate, i.e. foreign national ex-offenders.293 The Home Office Enforcement Instructions and Guidance states:

As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks.294

213.The joint inquiry report by the APPG on Refugees and the APPG on Migration recommended a statutory 28-day maximum time limit, “not simply to right the wrong of indefinite definition, but to change the culture endemic in the system”.295 Paul Blomfield MP added that a 28-day time limit reflected best practice from other countries, and was “workable” for the Home Office, given “only 37% of people were detained for longer in the first three quarters of 2014”.296 The Detention Forum argued that a 28-day time limit would “drastically reduce the detention both in scale and length. For example, on 30 June 2018, there were a total of 2,226 people detained in IRCs and prison. According to the Detention Forum, if there were a 28-day limit, 59% of those who were in detention on that day (1,316) would not have been there”.297

214.As proposed by the Bingham Centre for the Rule of Law, “Different time periods may be applied to different types of detention or may depend on the reason for detention”. For example, they suggested that lower time limits might apply for the detention of asylum seekers than for unauthorised non-nationals, or that extensions to detention might vary according to whether the basis for extension is a public order concern or administrative difficulty.298

215.To ensure that a 28-day limit did not become the default maximum length of detention, Detention Action highlighted that “[..]a 28-day backstop statutory limit would need to be accompanied by the other safeguards, [ … including] automatic bail hearings after a matter of hours, accompanied by automatic, legally-aided legal representation for individuals; and a very clear test which the Secretary of State has to satisfy, at that stage and at any other interim stages, to show that removal or deportation is imminent and happening very soon. If he is unable to satisfy that, a release must be ordered earlier. It is not 28 days and that is it. It must be accompanied by a very rigorous set of safeguards”.299 The Quakers supported a 28-day time limit, with judicial oversight within 72 hours, but stressed that “re-detaining should not be permitted”.300

Applying the learning from other processes

216.In light of the detrimental impact of immigration detention on the mental health of vulnerable adults, any consideration of a time limit should consider the success of the Family Returns Process, introduced in 2011, which has drastically reduced the number of children in detention. Women for Refugee Women told us that “under the Family Returns Process, the detention of children in the UK has reduced by 96%”.301 According to Detention Action, a key feature of its success is “the shift towards engagement with migrants”.302 The Detention Forum told us that the Family Returns Process was not usually considered as an alternative to detention (ATD) as “it does not follow international best practice in that families are only engaged after a final asylum decision has been made, there is an exclusive focus on return, and there is no structured involvement of NGOs or independent case managers”. Although positive about the impact of the Family Returns Process, the Detention Forum highlighted that “the learning of the Family Returns Process has not been extended to other categories of individuals, such as vulnerable adults”.303 Women for Refugee Women said that “The success of this process should be the basis for more widespread reform, and should build confidence that it is possible to move away from detention altogether”.304 Similarly, Amnesty International told us that “The time limit measures already in place provide a model to show that such a system is possible”.305

Alternatives to detention

217.The 2014 joint inquiry by the APPG on Refugees and the APPG on Migration recommended that, in tandem with a 28-day time limit, the Government would need to “introduce a much wider range of alternatives to detention”, adding that alternatives “not only achieve high compliance rates, but they are also considerably cheaper than our current system”.306 The International Detention Coalition identified over 250 examples of alternatives to detention (ATD) from 60 countries in research they undertook. They found that the most successful ATDs focussed on “engagement rather than enforcement” and could achieve “high compliance rates, achieving up to 95% appearance rates and up to 69% independent departure rates for refused cases”. They noted that alternatives “incorporating case management and legal advice” helped to achieve “efficient and sustainable outcomes by building confidence in the immigration process and reducing unmeritorious appeals”.307

218.In Shaw’s follow up review, he recommended the establishment of an alternatives to detention (ATD) project for vulnerable people as well as expanding Detention Action’s Community Support Project with ex-offenders.308 Detention Action explained that their pilot project had worked with young male ex-offender migrants, with barriers to removal since April 2014. In terms of outcomes, they reported that:

The project has to date worked post-release with 25 participants. There has been [a] rate of compliance with conditions of at least 80%. Two participants have been reconvicted of minor offences. The project is estimated to save between 83% and 95% of the costs of detention, depending on whether participants need housing from the government.309

219.Detention Action argued that the UK’s current use of ATDs was not effective in achieving “compliance and return”.310 Instead, they proposed that a move towards greater engagement with migrants, as seen with the success of the Family Returns Process, could be used as a basis to explore new approaches to alternatives to detention.311 Similarly, UNHCR advocated for ATDs beyond the Home Office’s current ATD framework. They said that, in their experience, “community-based case management and support is critical to both addressing the needs of what can be a highly vulnerable population and cultivating compliance, including with respect to voluntary return for those individuals found not to be in need of international protection”.312 However, in research conducted for the Shaw review, Professor Mary Bosworth cautioned against ATDs becoming an expansion of the current UK system. She argued that it was only when ATDs were developed as part of a prohibition on detention (e.g. for children) that they reduced the use of detention.313

220.On 3 December 2018, the Home Office announced the launch of a pilot scheme, led by Action Foundation in Newcastle, “to provide alternative arrangements for a number of vulnerable women who are already in detention, or are at risk of being detained, in Yarl’s Wood Immigration Removal Centre”. The Immigration Minister told us that, “A key measure of success will be whether we can achieve the same or better outcomes, in terms of case resolution, than if we had detained them”.314

221.We strongly support the Home Secretary’s commitment that he will consider ending indefinite immigration detention in response to Stephen Shaw’s follow up report. Evidence from a multitude of experts including those affected by detention shows the harm that immigration detention inflicts on detainees’ mental health and well-being. 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 immigration system to make swift decisions on individuals’ cases. There is a rapidly growing consensus among medical professionals, independent inspectorate bodies, people with lived experience and other key stakeholders on the urgent need for a maximum time limit.

222.From the evidence we have heard throughout our inquiry, a maximum immigration detention time limit is long overdue. It is clear that lengthy immigration detention is unnecessary, inhumane and causes harm.

223.Home Office policies which should prevent unlawful detention and harm of vulnerable people are regularly flouted or interpreted and applied in such a way that the most vulnerable detainees, including victims of torture are not being afforded the necessary protection. Detainees can be held despite serious risk to their life. As reported by HM Chief Inspector of Prisons, one detainee who was a wheelchair user was held for 15 months despite an attempt to set himself on fire. There is a systemic failure in the way that the current safeguards are applied by the Home Office. This administrative failure is accompanied by an institutional culture operating within immigration enforcement, and the Home Office more broadly, that clearly prioritises the use of detention as a means to enforce removal, above respect, dignity and the protection of vulnerable individuals.

224.It is time to implement radical change. In line with the Joint Committee on Human Rights, we urge the Government to bring an end to indefinite immigration detention and to implement a maximum 28-day time limit with immediate effect.315 We strongly believe that 28 days would be a reasonable statutory immigration detention time limit to enforce, given that the Home Office’s own Enforcement Instructions and Guidance stipulate that detention should only be maintained when removal is imminent (i.e. within 28 days (four weeks)).

225.The Immigration and Social Security Co-ordination (EU Withdrawal) Bill may provide a useful opportunity to put this time limit on a statutory footing. However, the Government can change its practice immediately, simply by ceasing to detain people beyond this limit. This 28-day time limit should be cumulative and accompanied by a robust series of regular checks and safeguards.316 An extension to the 28-day time limit should only be made in very exceptional circumstances and should only be permitted with prior judicial approval.

226.With such a maximum time limit, the Government should put safeguards in place to ensure that this maximum does not become a default period of detention that is routinely applied. To mitigate this risk, it is crucial to ensure that a robust and individualised review of detention occurs on a regular basis. The decision to maintain detention must be continually reviewed by the Home Office with appropriate independent oversight.

227.We recommend that the Government undertakes a public consultation on how detention time limit maximums could be applied to different types of detainees. For example, a lower time limit might apply to vulnerable individuals. If the Home Office assesses an individual to be an “Adult at Risk” in line with its statutory guidance, we propose that the Home Office adopts a similar policy as currently applies to families with children. That is, having in place a 72-hour detention limit, allowing for a maximum extension of 7 days in certain circumstances.

228.We recognise the specific challenges in relation to Foreign National Offenders (FNOs), i.e. that this broad term encompasses those convicted of any offence without British nationality including those who have committed the most serious crimes as well as victims of trafficking and modern slavery who have been coerced into crime. We therefore consider that the Home Secretary should consult on how any public protection issues can best be addressed.

229.We welcome the Government’s recent launch of its pilot scheme to provide alternatives to detention (ATD) for vulnerable women detained in Yarl’s Wood IRC. This is a positive first step to end the harmful and unnecessary detention of vulnerable people. We also welcome its research into further ATD pilots and recommend that it expands the use of community based ATDs as recommended by Stephen Shaw. In its response to our report, we ask the Government to include a comprehensive action plan for its work on ATDs. The action plan should include a breakdown of all the ATDs it is currently considering, the key measures of success for each scheme, and an update on progress.

220 Q178; Under the UK Borders Act 2007, the automatic deportation section states: (1)In this section “foreign criminal” means a person— (a)who is not a British citizen, (b)who is convicted in the United Kingdom of an offence, and (c)to whom Condition 1 or 2 applies. (2)Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (3)Condition 2 is that— (a)the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and (b)the person is sentenced to a period of imprisonment.

222 Home Office Immigration Enforcement statistics, Q4 2018, table FNO_11, Time served foreign national offenders, December 2018.

223 G4S Custodial & Detention Services (IDD0028)

224 Bail for Immigration Detainees Twitter feed, @BIDdetention

227 House of Commons Home Affairs Committee, Asylum accommodation Twelfth Report of Session 2016–17, HC637, 31 January 2017 p9.

228 Independent Chief Inspector of Borders and Immigration, Annual Report for the period 1 April 2017 to 31 March 2018, p11–12.

230 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, January 2016, p185, 10.10; The Detention Centre Rules 2001, Rule 9 sets out the statutory requirement for detainees to be provided “with written reasons for detention at the time of initial detention, and thereafter monthly”; Chapter 55.8 of the Home Office, Enforcement Instructions and Guidance advises Home Office staff on the management of monthly detention reviews. The guidance states that “Detention reviews are necessary in all cases to ensure that detention remains lawful and in line with stated detention policy at all times. Detention reviews must be carried out at prescribed points throughout the period a person remains detained under Immigration Act powers, whether the person is held in the immigration detention estate or elsewhere, for example, secure hospital or prison”.

231 Ibid, p184, 10.6.

232 Detention Action (IDD0006)

233 Amnesty International (IDD0029); Amnesty International (UK) conducted research during 2017 regarding the Home Office’s use of its immigration detention powers. This research involved an examination of Home Office detention case files and interviews with detainees, their family members and lawyers: A Matter of Routine: The Use of Immigration Detention in the UK, December 2017.

234 HM Chief Inspector of Prisons, Report on an unannounced inspection of Yarl’s Wood Immigration Removal Centre, 5–7, 12–16 June 2017; p31, 1.78.

235 Ibid

236 Home Office (IDD0044)

237 Home Secretary statement on immigration detention and Shaw report: on 24 July 2018, in response to Stephen Shaw’s follow up review, the Home Secretary, Rt Hon Sajid Javid MP, made a commitment that “[…] in his report, Stephen Shaw also rightly focuses on the need for greater transparency around immigration detention. I will publish more data on immigration detention”.

238 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, January 2016, p187, Recommendation 61.

239 Home Office (BRK0011)

240 Alongside the Home Office case progression panel reviews, the Home Office has a statutory duty to provide detainees with written reasons for their continued detention at monthly intervals following the initial decision to detain]. “Detention reviews must be carried out at prescribed points throughout the period a person remains detained under Immigration Act powers, whether the person is held in the immigration detention estate or elsewhere, for example, secure hospital or prison”. [See Chapter 55.8, Home Office Enforcement Instructions and Guidance].

241 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p85, 4.73; Shaw noted in his observation of the case progression panels that on one 12-month panel review, all the cases were Foreign National Offenders (FNOs) [p86, 4.74]; Shaw also noted in his follow up review that Foreign National Offenders make up the “vast majority of those held in detention the longest” [Foreword, viii]. In evidence to the Joint Committee on Human Rights on 5 December 2018 [Q69], Rt Hon Caroline Nokes MP stated that: “I can certainly assert confidently that everybody who has been in detention for over a year is a foreign national offender”.

243 Ibid, p86, 4.73.

249 Injustice in Immigration Detention, commissioned by the Bar Council, Dr Anna Lindley, SOAS, November 2017.

250 Bail for Immigration Detainees (IMD0012)

252 Independent Chief Inspector of Borders and Immigration 2016–17, p22, 8.3; “A grant of TR or bail typically requires that the individual resides at a specific address and reports to the Home Office, or police, at a specific location at set times and dates. These requirements are generally referred to by Home Office staff as ‘reporting restrictions’ or ‘reporting conditions’”. Independent Chief Inspector of Borders and Immigration 2016–17, p4, 5.8.

254 Law Society of Scotland’s Immigration and Asylum Sub-committee (IDD0035)

255 Home Office, Immigration Act 2016 Factsheet - Immigration Bail: automatic referrals (July 2016); Free Movement blog: Iain Halliday, The Home Office is entitled to ignore a judge’s decision to grant bail, 24 November 2017 - “The requirement for the Home Office to consent to bail was introduced by the Immigration Act 2014 and appears at paragraph 22(4) of Schedule 2 to the Immigration Act 1971. It applies only in very limited circumstances: where removal directions are in force, and removal will take place within 14 days”.

256 Schedule 10 of the Immigration Act 2016 came into force on 15 January 2018. Free Movement blog: Conor James McKinney, Migrants detained indefinitely or made homeless by new immigration bail system, 23 July 2018.

257 Liberty (IDD0015); Liberty’s reference to the “guidance supplied by the Home Office” is: Immigration Bail, Home Office, Published for Home Office staff on 12 January 2018.

258 Bail for Immigration Detainees, Briefing - Accommodation post detention, 13 June 2018.

259 Bail for Immigration Detainees, Briefing - Accommodation post detention, 13 June 2018.

261 Q49 Oral evidence: Brook House Immigration Removal Centre, HC 346, 14 September 2017.

262 Q47 Oral evidence: Brook House Immigration Removal Centre, HC 346, 14 September 2017.

263 Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons, January 2016, Recommendation 62, p188.

264 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p89; The UK Borders Act 2007 provided for automatic deportation for any foreign national with a criminal conviction of 12 months or longer. Under the UK Borders Act 2007, the automatic deportation section states: (1)In this section “foreign criminal” means a person— (a)who is not a British citizen, (b)who is convicted in the United Kingdom of an offence, and (c)to whom Condition 1 or 2 applies. (2)Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (3)Condition 2 is that— (a)the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and (b)the person is sentenced to a period of imprisonment.

266 Ibid, p89, 4.90.

267 Q69, Joint Committee on Human Rights, Oral evidence: Immigration detention, HC1484, Wednesday 5 December2018.

268 Q74, Joint Committee on Human Rights, evidence on Immigration detention HC1484, 5 December 2018.

269 Bail for Immigration Detainees (IDD0002)

270 Liberty (IDD0015)

271 Gatwick Detainees Welfare Group (IDD0010)

272 Oral statement to Parliament, Home Secretary Statement on immigration detention and Shaw report, 24 July 2018.

273 The EU Returns Directive (see Article 15) regulates the key aspects of irregular migration by non-EU citizens. The EU Returns Directive sets a detention limit of six months, extendable to 18 months in certain circumstances. However, the UK has opted out of this Directive and it is therefore not binding.

274 The Bar Council, Dr Anna Lindley, Injustice in immigration detention, November 2017, p56.

275, Being arrested: your rights; The then Home Secretary Rt Hon Amber Rudd MP said: “Pre-charge bail is a useful and necessary tool but in many cases it is being imposed on people for many months, or even years, without any judicial oversight – and that cannot be right.” Home Office press release, 28-day pre-charge bail limit comes into force, 3 April 2017.

276 UNHCR, The UN Refugee Agency (IDD0018)

278 Ibid, p18.

281 Home Office Immigration statistics, December 2018, table dt_11q

282 Table 3, People in detention by length of detention includes people held in HM Prisons under immigration detention powers.

285 Q69 Joint Committee on Human Rights, Oral evidence: Immigration detention HC 1484, Wednesday 5 December 2018.

286 The Joint Committee on Human Rights, Immigration Detention, Sixteenth Report of Session 2017–19 HC 1484 HL Paper 278. Published on 7 February 2019. Paragraph 68, p25.

287 Stephen Shaw, Review into the welfare in detention of vulnerable persons, January 2016, Paragraph 24, p14.

288 British Medical Association, Locked up, locked out: health and human rights in immigration detention, November 2017, p4.

291 Law Society of Scotland’s Immigration and Asylum Sub-committee (IDD0035)

292 Q25 Joint Committee on Human Rights.

293 Q25 Joint Committee on Human Rights; the Detention Forum, Why a 28-day time limit on immigration detention? Working paper - 7 September 2018.

294 Home Office Enforcement Instructions and Guidance, Chapter, Application of the factors in 55.3.1 to criminal casework cases. Imminence.

295 Ibid

296 Joint Inquiry by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration, The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom (2015) p24: “ In the first three quarters of 2014, 63 percent of detainees left detention after spending fewer than 28 days being held and 93 percent of detainees spent less than four months in detention”; Table dt_11_q, Immigration Statistics – July to September 2014.

297 The Detention Forum, Why a 28-day time limit on immigration detention? Working paper - 7 September 2018. Using older Home Office immigration statistics, this calculation was derived from the following data included in Detention Forum’s brief: “Distribution of length of time spent in detention among 2,226 individuals detained on 30 June 2018: 1–28 days 41%, 1–3 months 28%, 3–6 months 18%, 6–12 months 10%, 12–24 months 3%”.

298 Ibid

299 Q6 Oral evidence, Joint Committee on Human Rights Immigration detention, HC 1484
Wednesday 31 October 2018.

300 Quakers in Britain and the Quaker Asylum and Refugee Network (IDD0025)

301 Women for Refugee Women (IDD0001)

302 Detention Action (IDD0006); As outlined in the Home Office Family Return Process staff guidance, 10 April 2017, the Home Office engages with families in a structured way to support consideration of their options for returning home.

303 Detention Forum (IDD0033)

304 Women for Refugee Women (IDD0001)

305 Amnesty International (IDD0029)

306 A Joint Inquiry by the All Party Parliamentary Group on Refugees & the All Party Parliamentary Group on Migration, The Report of the Inquiry into the Use of Immigration Detention in the United Kingdom, p9.

309 Detention Action (IDD0006)

310 Detention Action (IDD0006); Detention Action explained that, “Case management is a social work approach which is ‘designed to ensure support for, and a coordinated response to, the health and wellbeing of people with complex needs.’ Case management models involve a case manager, who is not a decision-maker, working with the migrant to provide a link between the individual, the authorities and the community. The case manager ensures that the individual has access to information about the immigration process and can engage fully, and that the government has up-to-date and relevant information about the person”.

311 Detention Action (IDD0006); in their evidence they cited that as part of the Family Returns Process, “between April 2014 and March 2016, 97% of 1,470 families who left the UK did so without enforcement or detention”.

312 UNHCR, The UN Refugee Agency (IDD0018)

315 In its report on Immigration Detention, the Joint Committee on Human Rights recommended a “maximum cumulative period for detention” of 28 days.

316 In this context, ‘cumulative’ means that an individual could be detained for a maximum of 28 days whether all in one period of detention or in different periods of detention providing that the total length of detention does not exceed 28 days. Therefore, the individual could be re-detained depending on their individual immigration case but only up to a limit of 28 days. Each time an individual is detained, this total is taken in to account as part of the 28-day total.

Published: 21 March 2019