Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Written evidence submitted by the Law Society of England and Wales (IB09)

Summary

1. The Law Society is the independent professional body for 190,000 solicitors in England and Wales. We represent and support our members, promoting the highest professional standards and the rule of law.

2. There is currently no limit on the amount of time a person can be held in immigration detention in the UK. The UK currently detains around 25,000 people per year for immigration purposes, and decisions to detain indefinitely are made by Home Office caseworkers without appropriate oversight.

3. This goes against established principles on deprivations of liberty, and is both ineffective and expensive. The majority of those held in immigration detention are not removed from the UK, and the Government spent almost £90million on detention costs in 2018-19. In 2019 only 37% of those leaving detention were removed from the UK, and detention had no effect on the conclusion of the immigration cases of the other 63%.

4. The Immigration Bill provides an opportunity to significantly improve UK law on immigration detention, by providing a statutory time limit of 28-days for any person to be held in immigration detention. As such the Law Society recommends supporting cross-party amendment NC1.

Amendment NC1

5. The Law Society supports proposed amendment NC1, which would legislate for a 28-day time limit for people held in immigration detention in the UK. It also ensures a person cannot be re-detained following their release, unless the Secretary of State is satisfied that there has been a ‘material change of circumstances’.

6. It is our view that people should not be deprived of their liberty unnecessarily, and that when such deprivation does occur, access to justice must be maintained through a route to legal advice , and clarity on rights of appeal and when a case will be reviewed . A person should not be detained unless they can be shortly removed from the UK (e.g. 28 days) and their detention is necessary to effect their removal from the UK.

7. Amendment NC1 is in line with these principles.

Access to justice and the r ule of law

8. Clarity as to how long a person can be held in immigration detention would enable them to understand how the law is being implemented and their corresponding rights regarding the deprivation of their liberty . The UK is the only country in Europe that does not have a time limit on how long a person can be held in immigration detention. The clear parameters in which re-detention can occur ensures that people released from immigration detention have clarity and stability regarding their future.

9. As less than half of immigration detentions resulted in deportation last year, a large proportion of people being held in I mmigration R emoval C entres are presumed to be detained unnecessarily. A requirement to hold a hearing within 28 days would ensure that such situations are resolved as soon as possible, resulting in the clear benefit of justified liberty for these people, and also a reduction in unnecessary , yet substantial, cost s to the Government.

10. The issues with immigration detention have been made even more pressing by the current Covid-19 pandemic. Hundreds of people remain in detention, despite the uncertainty surrounding international travel restrictions, which suggest there are difficulties with removal in the short term. As the Home Office has not published any policies on detention and Covid-19, detainees and their legal representatives are hindered from being able to properly understand the reasoning behind detention and therefore are hindered in effectively preparing an appeal.

11. This barrier to information on the likely duration of detention, and the inability to effectively prepare an appeal blocks detainees ability to access justice and uphold their rights . The current state of affairs, whereby vulnerable people can remain in Immigration Removal Centres for an indefinite period of time, possibly years, without access any judicial oversight, is in clear contravention of these principles.

Additional considerations

12. While the introduction of a statutory time limit is primarily necessitated by the principles of access to justice and the rule of law, it is important to also consider the inefficiencies of prolonged and widespread immigration detention, and the harm it can cause.

a. Total cost on immigration detention by the Government amounted to arond £89 million in 2018-19, down from £108 million in the previous year. Individually this amounts to over £30,000 spent on the detention of each person per year. In the last quarter of 2019, the estimated average daily cost of holding someone in immigration detention was £94.56, an increase of £7 on the cost in 2018.

b. Removal rates are low. In 2019 , only 37% of those leaving detention were removed from the UK. In over half of cases, detention does not therefore result in removal or deportation, and is therefore unnecessary.

c. Unlawful detention payouts are high. £21 million was paid by the Home Office over five years for wrongfully detaining 850 people in Immigration Removal Centres.

13. Equally, the potential for harm caused by immigration detention to the individual has been found to be significant. The Shaw review found that the following contributed to the impact on mental and physical helath experienced by many immigration detainees:

a. Duration of detention , which was found to be closely related to mental health outcomes.

b. Pre-existing trauma , which Shaw notes may relate to the original reason for flight, possibly including torture, violence experienced during travel and sexual victimisation.

c. Pre-existing mental health and physical health problems , which was suggested to be ‘more extensive’ for those in detention as opposed to the general population. A 2015 NHS report raised prevalance of certain forms of disease and chronic ill health in addition to high levels of stress for those in detention.

d. Health care and mental health care services in detention , which Shaw observes operates to a low standard.

e. Uncertainty , which Shaw notes is linked to the absence of an upper time limit to the period

14. We believe that the introduction of a 28-day limit would mitigate several of these concerns, as well promoting access to justice and maintaining the rule of law.

Support for the need for a strict statutory time limit

15. There has been widespread support o f the need for a statutory time limit for those in detention . The opportunity posed by the passing of an Immigration Bill to introduce such a limit is highlighted by the Home Affairs Select Committee’s report on immigration detention , which found ‘serious problems with almost every element of the process’ and advocated for the immediate introduction of a 28-day time limit.

16. A statutory time limit was tabled at both Committee and Report Stages of the 2019 Immigration Bill by a cross party group of MPs including Conservative, Labour, Liberal Democrat, SNP, DUP, Green and Plaid Cymru members. Over 90 MPs signed this amendment at Report Stage, including the Chair of the Home Affairs Committee, Yvette Cooper, and the Chair of the Joint Committee on Human Rights, Harriet Harman (who also signed current amendment NC1). The amendment was supported by the Law Society in addition to over 50 additional civil rights organisations such as the Bar Council and the Equality and Human Rights Commission.

June 2020