Deprivation of liberty is a serious interference with an individual’s human rights. While there are strict safeguards to ensure independent decision making and fair processes for detention in the criminal justice system, there are far fewer protections for people caught up in the immigration system. The current immigration detention system is slow, unfair and expensive to run—last year it cost £108m. As our inquiry into Windrush detainees shows, some of those detained have a right to be in the country. Millions of pounds in compensation is paid to those who have been wrongly detained. Conditions in some detention centres are below acceptable standards. The UK needs an immigration detention system which is fair, humane, decent and quick.
In this report we make five key proposals:
The key element of our proposals is that, as far as possible, decision making on detention matters should be independent. We acknowledge the Home Office has introduced a “gatekeeper” function and case progression panels to review initial detention decisions and review progress of cases where detention has lasted for three months. But both these functions are within the Home Office itself, the Department which progresses removals and deportation. We recommend that the Home Office should conduct a pilot of independent prior authorisation for detention in cases where detentions are planned. (In some cases, it will not be possible to predict whether detention will be needed—for example, immigration status issues may arise at borders.) Not only is there a principled case for independent authorisation to detain in cases of planned detentions; such independent decisions may well be more robust than those taken entirely within the Department. The current lack of rigour in detention decisions is evidenced by the amounts spent on compensation for wrongful detentions and the series of mistakes accepted by the Home Office in detention cases.
Whether detentions are planned or unplanned, immigration detainees should not have fewer safeguards than those applicable in the criminal justice system. The decision on whether to continue detention should be made by a judge and should be made promptly. However, immigration detainees need sufficient time to get advice and gather evidence before such a hearing. A period of 36 hours may be too short for this. We recommend that a judicial decision should be required for any detention beyond 72 hours.
The UK is the only country in Europe that does not impose time limits on immigration detention. Without such a time limit, there is a reduced incentive for officials to progress cases as quickly as possible, so that individuals can have their status resolved swiftly, for example by being removed or having their status regularised.
We recommend that detainees should not spend more than 28 days in detention. This will end the trauma of indefinite detention. In exceptional circumstances, for example when the detainee seeks unreasonably to frustrate the removal process and has caused the delay, the Home Office would be able to apply to a judge who could decide whether to extend the detention for up to a further 28 days.
Under the ECHR anyone detained has a right to “to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”. There is legal aid for immigration detainees to challenge detention, but we found that there are problems with the availability and timeliness of legal advice in detention. Immigration detainees should have better and more consistent access to legal advice to challenge their detention.
Moreover, the substantive immigration cases themselves are often not within scope of legal aid. This may cause problems because an individual’s detention is inherently linked to their underlying immigration issue. It is also inefficient and may well be costly, as matters repeatedly return to court (creating unnecessary costs for the taxpayer), and decisions about an individual’s immigration status are delayed.
There also needs—during the period of their custodial sentence—to be better management and consideration by the Home Office of the immigration status of individuals who are subject to deportation or are being considered for deportation to reduce the need for lengthy, costly and harmful additional immigration detention after the sentence has been served. Legal advice should be available to deal with immigration issues while foreign national offenders are in prison so that at the end of their sentence they can be deported or have their immigration status regularised or resolved rather entering immigration detention.
There is an urgent need for immigration legislation to be reviewed. There is now such a complex web of law and regulation that it is impossible for all except the most expert people to understand. The Committee recommend that the Law Commission should be tasked with simplifying and codifying the law on immigration.
The Adults at Risk policy does not give adequate protection to individuals at risk of harm in detention either by way of policy or of practice. Both the AAR policy and other Home Office policies are silent on how to respond to the needs of those that lack mental capacity, which puts them at a clear disadvantage. More needs to be done to identify vulnerable detainees and treat them appropriately.
The Home Office should give serious consideration to improving the oversight and assurance mechanisms in Immigration Removal Centres and the wider immigration detention estate to ensure that any ill-treatment or abuse is found out immediately; action is taken to correct it; and steps taken against those responsible to ensure lessons are learned and effective prevention mechanisms are put in place.
More needs to be done to make the detention estate less prison-like and to create as open a regime as feasible. Detainees should not be routinely handcuffed. Under the criminal justice system, there are different prison regimes ranging from category A to D. Consideration should be given to separating individuals who pose a risk of violence, such as those who have been convicted of serious offences from other detainees.
Published: 7 February 2019