8. Memorandum from Bail for Immigration
Detainees
1. BID are a small charity that was established
in 1998 to prepare and present bail applications on behalf of
asylum seekers and migrants in immigration detention. In the past
five years, BID have obtained release for over 500 detainees and
have wide experience of the policies and procedures of immigration
detention and mechanisms for accessing an independent review of
detention. Through BID's three offices (London, Oxford and Portsmouth),
we advise, represent and support people detained at any of the
UK detention centres. The organisation has four paid staff and
around 20 casework volunteers. Between August 2001 and July 2002,
790 detainees sought advice or assistance from BID. BID went on
to prepare bail applications for 492 people. 246 bail applications
or other applications for release were made, for people from countries
including Zimbabwe, Uganda, India, China, Afghanistan, Cameroon,
Colombia and Algeria. BID aim to increase the number of legal
representatives who conduct bail applications for their clients,
through training, information and raising awareness. In 2003,
BID published a "Notebook on Bail" for detainees and
were asked to write a Best Practice Guide to Challenging Immigration
Detention for practitioners, which is to be published shortly
by the Immigration Law Practitioners Association, the Legal Services
Commission and the Law Society. Based on our casework experience,
BID conduct campaigning, policy and research work targeting policy
shapers and decision makers. BID aim to encourage the government
to consider more proportionate, humane alternatives to detention
and campaign for international and domestic human rights standards
to apply to immigration detention in the UK. [65]
2. BID welcome the inclusion of immigration
detention facilities in the remit of the JCHR's inquiry into deaths
in custody. The information provided below focuses on the "preventing
deaths in custody" part of the inquiry. We do not have the
relevant expertise to make submissions regarding investigating
deaths. Sections of this paper are based on information that has
also been submitted to the Department for Constitutional Affairs
in response to the consultation on proposed caps on legal aid
for asylum seekers and migrants. [66]
3. BID have represented a significant number
of detainees who have attempted suicide and self-harm. We are
also aware that there have been several suicides in immigration
detention in the past few years. [67]Significant
numbers of those we represent have serious medical and psychological
needs which, in our experience, are not adequately met in detention
centres. Further, a significant number of detainees have reported
to BID that they have suffered injuries in detention at the hands
of escort companies and detaining officers.
4. BID is opposed to arbitrary and unnecessary
use of immigration detention and believe that there are alternatives
to detention, such as reporting requirements. It is BID's experience
that immigration detention is used unnecessarily, arbitrarily,
for unacceptable lengths of time and for vulnerable people. BID's
concerns about detention policy are set out in detail in our 2002
Submission to the UN Working Group on Arbitrary Detention
(not printed here). In summary, BID's key concerns about immigration
detention are as follows:
— Primary legislation which is silent
on the presumption in favour of liberty.
— No statutory time limit on the duration
of detention.
— No automatic review of detention
by an independent body capable of considering the lawfulness and
appropriateness of the initial detention decision or the need
to maintain detention.
— A failure to consider alternatives
to detention, such as reporting restrictions.
— The requirement for sureties as a
precondition of bail (and bail applications) for asylum seekers
who frequently have no family or contacts in the UK who are able
to stand surety for them.
— The application of a "merits
test" for the use of public funds for legal representation
in bail applications.
— A failure on the part of the UK Immigration
Service (UKIS) to properly inform detainees of the detailed reasons
for detention and to routinely disclose UKIS reviews of the detention
decision. [68]
— A failure on the part of the UKIS
is to abide by the principle of "equality of arms" by
refusing to disclose documentation relating to the reasons for
detention or the reasons for maintaining detention.
— The reluctance of Adjudicators of
the Immigration Appellate Authority (IAA) to consider the European
Convention of Human Rights in bail applications.
— The lack of any appeal right against
a negative bail decision by an Adjudicator of the IAA.
— The paucity of research into detention
and bail leading to decision-making by the Immigration Service
and courts which is not evidence-based. This results in flawed
initial decision-making by the UKIS and flawed bail decisions
by the IAA.
— The use of immigration detention
for children and children in families, pregnant women, those with
serious mental and physical health problems and those who have
experienced torture, including rape.
5. BID believe that the prevalence of suicide
and self-harm attempts in detention is a direct and inevitable
result of the current policy and practice of immigration detention.
We are also concerned that the heavy handed approach of escort
services and detaining authorities may result in deaths during
the process of detention and of attempted removal.
6. Detention policy is mostly contained
in the Operational Enforcement Manual (OEM), chapters 38 and 39.
The OEM applies to enforcement departments of the Home Office[69].
The Operational Enforcement manual ("OEM") sets out,
at paragraph 38.8, categories of people "normally considered
suitable for detention in only very exceptional circumstances".
These categories are:
— Those suffering from serious medical
conditions or the mentally ill.
— Those where there is independent
evidence that they have been tortured.
— Pregnant women, unless there is the
clear prospect of early removal and medical advice suggests no
question of confinement prior to this.
— The elderly, especially where supervision
is required.
— Those with serious disabilities.
It is BID's view that these guidelines fail
to protect vulnerable groups most likely to be at risk of suicide
and self-harm—vulnerable groups such as torture survivors,
those with serious mental and physical health problems and disputed
minors. In BID's experience[70],
groups such as these are detained.
7. Once a person with a serious medical
condition or particular health needs is detained, the detention
centre has certain statutory obligations. These are set out in
the Detention Centre Rules (DCR 2001). Rule 35 DCR 2001 contains
the duties of medical staff at the detention centre[71].
However, it is BID's experience that this rule is not operating
correctly. BID have been involved in cases in which medical reports,
for example expressing serious concerns that continued detention
would be detrimental to a detainee's well being or that there
was a risk of suicide, have not been forwarded by the Medical
Practitioner to the manager of the centre or to the Immigration
Service. Indeed, information given by medical staff at Harmondsworth
in a "Stakeholder meeting" on 9 April 2003 indicated
that there was not a clear procedure for passing medical reports
from the GP to the Centre Manager to Immigration, particularly
if the report has not been commissioned by healthcare. It was
indicated that a report stating that further detention was injurious
to health, a statement to this effect would be passed to the centre
manager who should then pass this on to the IS. The report itself
would not be sent. This comment is consistent with our experience
in a number of cases where vital medical information has not been
passed to the manager of the centre and therefore it has not reached
the Immigration Service file. In one case, a mother was detained
with her young child for over five months, continuing even when
the detention medical centre expressed concerns about the stress
caused to the mother by caring for her child in detention and
the effect of the stress on the child's well-being and safety.
8. In BID's experience, in some cases detention
has lead to a deterioration of the detainee's mental health. Eventually,
detainees are released for psychiatric treatment when the detention
centre medical teams are unable or unwilling to care for them.
CASE STUDY[72]
A young woman, "I", overstayed her
student visa and was detained. She then sought asylum as she had
been severely traumatised by experiences in her country of origin.
She remained detained awaiting an appeal during which time her
mental health deteriorated. "I's" legal representatives
took the view that two sureties would be required for a bail application
and as she had only one, they felt unable to present a bail application.
Her mental health deteriorated further and the medical team at
the detention centre referred "I" to the local Area
Health Authority psychiatric team where she was diagnosed as suffering
from post traumatic stress disorder (PTSD). Despite this, the
Immigration Service maintained detention in breach of their instructions
regarding detention of the mentally ill. BID sought bail on several
occasions but was forced to withdraw due to problems with sureties.
Finally, a successful application was made with one surety who
had met "I" briefly. Bail was granted with one surety
offering £500. This was the first bail application that had
been heard in four months of detention.
"(1) The medical practitioner shall report
to the manager on the case of any detained person whose health
is likely to be injuriously affected by continued detention or
any conditions of detention.
(2) The medical practitioner shall report to
the manager on the case of any detained person he suspects of
having suicidal intentions . . .
(3) The medical practitioner shall report to
the manager on the case of any detained person who he is concerned
may have been the victim of torture.
(4) The manager shall send a copy of any report
under paragraphs (1), (2) or (3) to the Secretary of State without
delay.
(5) The medical practitioner shall pay special
attention to any detained person whose mental condition appears
to require it, and make any special arrangements (including counselling
arrangements) which appear necessary for his supervision or care."
These statutory obligations are relevant where a
detainee's
— mental or physical health is being harmed
by detention
— needs treatment for mental health problems
— is considering or attempting self harm
or suicide
— is a victim of torture or rape
— And has requested assistance from the
medical centre.
9. The detention of people at risk of suicide
or self harm in immigration detention contrasts with the Home
Office guidelines to Courts, the Police and the Probation Service
on the detention of mentally disordered offenders which state:
"Courts are asked to ensure that alternatives
to custody are considered for all mentally disordered persons,
including bail before sentence, and persons who are in need of
medical treatment are not sent to prison." [73]
10. In detention there may be some access
to mental health services but this varies between centres. In
A Second Exile: the Mental Health Implications of Detention
of Asylum seekers, the author, a psychiatrist, considers both
the effect of detention on mental health and the care available
for those who have mental health needs. The report, based on in-depth
interviews, concluded that:
"Detention creates trauma regardless of
previous traumatic experiences producing anxiety, depression,
isolation and so on, all components of traumatic experience. It
was felt that such trauma may be worse than what may have been
previously endured." [74]
The report also identified that the indefinite
nature of detention was a particular cause of mental stress.
11. In addition to the above points, we
wish to draw the attention of the committee to the following policy
aspects of detention, which we believe illustrate the absence
of meaningful human rights for immigration detainees.
(a) Use of detention for people who have
just arrived and for those who have rights of appeal outstanding:
The power to detain applies to all asylum seekers and migrants,
is without time limit and is not automatically subject to independent
review. [75]The
government does not make available statistics as to the status
of detainees' cases, however it is BID's experience that significant
numbers are detained on arrival, with appeals outstanding and
for lengthy periods (many months) awaiting travel documents. The
use of detention under these circumstances prolongs detention
and therefore gives rise to mental health concerns.
(b) Absence of automatic, independent
review of detention and maintaining detention: There are serious
inadequacies in the process for applying for bail under existing
legislation, which result in significant numbers of detainees
being unable to access judicial oversight of detention. A brief
survey of BID cases between February and July 2002 showed that
in 79% of bail applications, the application by BID was the first
time that an independent review of detention had taken place.
The average length of time without review by a court, before the
first bail application by either BID or a solicitor was approximately
16 weeks, or four months. The average total duration of detention
was 20 weeks, or five months. Previous legislation that made automatic
provision for bail applications was never implemented and was
repealed by the 2002 Nationality, Immigration and Asylum Act.
Considering the repeal of automatic bail hearings, the report
of the Joint Committee on Human Rights into the NIA Bill accepted
that "safeguards are meaningful and effective only if appropriate
legal advice and information are available to detainees"[76]
and concluded that "these matters should be carefully monitored
. . . [as to the] effectiveness of safeguards for the human rights
of detainees." The Minister, Beverley Hughes MP, has stated
that an automatic mechanism for bail was unnecessary ". .
. in the light of the fact that people can through their representatives
apply for bail at any time at all seemed an unnecessary bureaucracy"[77].
The comment by the Minister that independent review by a court
is "an unnecessarily stringent safeguard and one that is
actually unnecessary" demonstrates an alarming complacency
on behalf of the government whose current policy and practice
in relation to detention disregards protection of the fundamental
principle of liberty and fails to acknowledge that large numbers
of detainees are not represented.
(c) Inadequate access to legal representation
and a sense of isolation, disempowerment and hopelessness:
It is BID's experience that significant numbers of detainees do
not have access to good representation or may have no representation
at all. This issue was raised as a matter of concern by HM Inspectorate
of Prisons in April 2003, particularly in relation to Lindholme[78]
and Haslar. The report about Dungavel states "Access to quality
legal representation and information about the progress of their
cases was poor and these factors afforded little protection against
the damaging effect of unanticipated and indeterminate detention."
BID's existence is evidence that effective, good-quality immigration
representation is not adequately accessible from detention centres.
Where an individual is unable to access representation and has
lost hope in the justice of the determination system, suicide
and self-harm issues are more likely.
BID are particularly worried about the potential
impact of the proposed cuts to legal aid for asylum seekers and
migrants, announced by the Government in June 2003. If these proposals
are implemented, there will be an even greater number of detainees
who are not represented.
(d) Continued use of prisons: The
UK detains between 1,300 and 2,000 people under immigration act
powers at any one time. Home Office statistics show that at 29
March 2003, 19% (255 people) of the 1,355 people detained solely
under immigration act powers were held in criminal prisons. This
is despite a government commitment in October 2001, that the use
of criminal prisons would cease. [79]BID
is concerned that the use of criminal prisons for asylum seekers
and migrants leads to an increased risk of suicide and self-harm.
(e) An aggressive, target-let removals
policy: In BID's experience, removal is being attempted of
people who have a valid claim, or whose claim has not yet been
heard. Wrongful attempts at removal increase the risk of violent
treatment and inappropriate restraint methods being employed.
The HM CIP report on Dungavel notes that detainees may have ".
. . difficulty accessing competent legal advice which may prevent
their removal to an unsafe country or situation". Our concern
is that the use of immigration detention in its current form obscures
the reality of the process of removal, making it extremely difficult
to assess whether removals are being conducted as humanely as
possible and with due, independent regard to any compassionate
factors in the particular case. The pursuance of a removal "target",
whether explicitly stated as a figure per month, or implicit in
the whole emphasis of the asylum process, is impacting upon the
way in which removals are attempted and indeed upon who is detained
in the first place. This is resulting in the removal of individuals
and families without proper legal advice or adequate representation,
without consideration of compassionate factors; in short without
due process. If removal becomes the overriding goal in immigration
control, rather than a fair consideration of the case, there is
a risk that detention will be employed for vulnerable people ie
detention criteria which state that vulnerable people are normally
unsuitable for detention other than in exceptional circumstances
are being overridden. This is illustrated by the frequent use
of detention for those acknowledged to be suffering mental illness
and survivors of rape and torture. Detention in these cases is
not being employed as a "last resort" immediately prior
to removal, but often from arrival. BID is concerned that a significant
number of detainees report violent and abusive treatment at the
hands of security guards and escorts, including racist abuse.
12. BID believe that urgent action is required
to implement a human rights approach to the use and management
of immigration detention. Significant changes in policy and practice
must be introduced in order to reduce the incidence of self-harm
and suicide and deaths in immigration detention. The use of immigration
detention is now widespread and the Government have indicated
that they wish to expand the detention estate to comprise 4,000
places, an increase from around 250 spaces a decade ago. [80]However,
BID wishes to emphasise that immigration detainees are not charged
with a criminal offence. They are detained for the administrative
convenience of the state. Whilst BID urge the Government to fully
uphold its duty of care towards those whose liberty it denies,
we also wish to record our concern that there is an over use of
detention. There must not be a "sticking plaster" approach
to dealing with the inevitable consequences of detention policy,
which include self-harm and suicide. A focus on procedures and
safeguards that reduce incidence of harm should of course be in
place, but should not obscure the need to review whether detention
practice itself is proportionate, necessary and acceptable in
a human rights framework. In particular, we wish to draw the attention
of the committee to the following actions that BID believe the
Government should take.
(a) Implement and resource the recommendations
of the recent reports of HM Inspectorate of Prisons.
(b) Use detention in line with international,
European and domestic human rights standards, in particular with
a maximum duration specified by law and automatic provision of
independent review.
(c) Improve access to legal advice and representation.
(d) Protect vulnerable people from detention
by introducing statutory criteria for detention and statutory
instructions about who may not be detained.
13. Evidence given to the Home Affairs Committee
investigation into asylum removals by the private contractors
operating detention facilities claimed that suicides were not
taking place.[81]
However, in order for parliament and the public to be able to
effectively scrutinise the incidence of harm, BID consider that
it would be an important development for regular statistics to
be published as to the incidence of self-harm and suicide.
14. Finally, BID would like to draw attention
to the recent report on immigration detention by the United Nations
Special Rapporteur on the human rights of migrants, published
in December 2002.
The Special Rapporteur is concerned that in a
considerable number of countries, measures aimed at stopping irregular
migration undermine migrants' basic rights, including the right
to seek asylum and minimum guarantees against arbitrary deprivation
of liberty.
In particular, there is a tendency to provide
immigration officials with broad powers to detain groups of migrants
in conditions and facilities that seriously curtail their right
to judicial or administrative review of the lawfulness of detention
and to have their asylum claims reviewed.
. . . the Special Rapporteur would recommend
that . . . Governments should consider the possibility of progressively
abolishing all forms of administrative detention and, when this
is not possible, take measures to ensure respect for the human
rights of migrants deprived of liberty[82].
15 September 2003
". . . detainees with a history of violent or
criminal behaviour and those considered a danger to safety have
been transferred to prison."
BID is concerned that detainees are being transferred
to prisons as a punitive measure. There is a lack of transparency
and accountability surrounding the process of movement of detainees
to prisons. Neither detainees nor their legal representatives
are provided with the reasons for deciding that they represent
a security risk. In several cases, detainees have been moved to
a prison for a number of weeks, then returned to a detention facility
without explanation as to why they are no longer deemed a risk.
65 In particular, the UN Convention on the Rights of
the Child, the UNHCR Guidelines on applicable Criteria and Standards
relating to the Detention of Asylum Seekers (1999) and the European
Convention on Human Rights. Back
66
See "Bail for Immigration Detainees, response to legal
aid consultation, August 2003". Back
67
For example, on 31 January 2003, Mikhail Bodnarchuk, a Ukrainian
who had been detained at Haslar for four months, committed suicide.
It is BID's understanding that Mr Bodnarchuk did not have a legal
representative to submit an appeal on his behalf and that he was
wrongly accused by the Immigration Service of claiming asylum
in two identities. He was due to be returned to Ukraine on 31
January 2003. Early on the morning of January 31 he killed himself. Back
68
The requirement to give reasons for continued detention is contained
in the Detention Centre Rules which came into force in April 2001.
In BID's experience, this Rule is often ignored by the Immigration
Service. Back
69
BID understand that similar policy is set out in Immigration Directorate
Instructions ("IDIs") on ports. However the IDIs have
never been disclosed. Back
70
See "A Crying Shame: Pregnant asylum seekers and their
babies in detention", McCleish, J, Cutler, S & Stancer,
C, Maternity Alliance, Bail for Immigration Detainees & London
Detainee Support Group, September 2002 and "Protection
Not Prison: Torture Survivors detained in the UK", Dell,
S & Salinsky, M, Medical Foundation for the Care of Victims
of Torture, 1999. Back
71
Rule 35 Detention Centre Rules 2001 Back
72
This case study was referred to in BID's submission to the UN
Working Group on Arbitrary Detention, September 2002. Back
73
MNP/90 1/55/8. Back
74
A Second Exile: The Mental Health Implications of Detention of
Asylum-seekers in the United Kingdom, Pourgourides, C K, Sashidharan,
S P, Bracken, P J, Northern Birmingham Mental Health Trust, 1996,
p 66. Back
75
The provision for automatic bail hearings contained in the 1999
Immigration and Asylum Act was repealed in 2002. Back
76
Nationality, Immigration and Asylum Bill, Seventeenth Report of
Session 2001-02, House of Lords, House of Commons, Joint Committee
on Human Rights HL Paper No 132, HC 961, p 32. Back
77
Oral submissions to the Home Affairs Committee on 4 March 2003
Ev. 682. Back
78
"The questionnaire revealed that after a few days at Lindholme
the vast majority of detainees (75%) did not know how to obtain
legal advice or get a solicitor. Over a quarter (27%) were without
representation, and only a third (37%) of these knew how to obtain
legal advice . . . A significant proportion of detainees had no
legal representation and the majority of the un-represented did
not know how to obtain legal advice. Of those who were represented,
a number appeared to be receiving an inadequate service, and access
time for legal representatives was restrictive. There was evidence
of detainees being exploited by unscrupulous representatives."
HM Inspectorate of Prisons, Inspection of Lindholme Removal
Centre, March 2002, published April 2003. Back
79
In October 2001 the Government gave an undertaking that the detention
of asylum seekers in prisons would cease as from 25 December 2001.
However, the use of prisons was re-introduced after the fire at
Yarl's Wood Detention Centre on 14 February 2002. The Secretary
of State, David Blunkett, on 24 February, stated that: Back
80
See February 2002 White Paper, Secure Borders, Safe
Haven. Back
81
Para 357, Tuesday 28 January 2003, Evidence to the Home Affairs
Committee. Back
82
"Specific Groups and Individuals: Migrant Workers-Report
of the Special Rapporteur", Ms Gabriela Rodriguez Pizarro,
submitted pursuant to Commission on Human Rights resolution 2002/62
E/CN.4/2003/85, 30 December 2002. Back
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