Immigration detention Contents

2Detention decisions

Current detention process

18.Currently, the statutory powers to detain for immigration purposes are vested in immigration officers, immigration caseworkers or the Secretary of State.28 It is Home Office policy that an officer of at least chief immigration officer rank, or a higher executive officer, initially authorises most detention decisions. Government policy is that:

“There is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used […]. Detention is most usually appropriate:

19.Since Autumn 2016, all detention decisions are referred to “Detention Gatekeepers” who assess whether initial detention decisions are proportionate; whether there is a realistic prospect of removal within a reasonable timescale; and whether individuals may be at risk of harm in detention due to any vulnerabilities. Once detention is authorised by the detention gatekeeper, it is reviewed after 24 hours by a senior executive officer, and then reviewed again at 7 days, 14 days, 28 days and thereafter every month at increasingly senior levels within the Home Office. Other recent case working reforms include the introduction of “case progression panels.” The Immigration Minister told us that these panels review detention cases after three months “to assess vulnerabilities, progress towards removal and whether any additional or new claims have been made, such as for asylum or other forms of protection.” The Minister told us that cases are kept under review “which enables the different parts of the organisation to see whether the original decision was the right one.”30

Quality of decision-making

20.There are serious concerns about the detention decision-making process at the Home Office. The three main areas raised in evidence were that:

Necessity of detention

21.We heard that initial detention decisions lack sufficient rigour and justification and that detention is frequently not a last resort. Stakeholders and practitioners told us that detention decisions operate like “tick-box”31 exercises and that detainees are not provided with adequate justification for the decision to detain them or any evidence showing why the individual cannot be managed in the community. Bella Sankey from the organisation Detention Action told us:

“In our experience, the Home Office very rarely, in the cases of people who are detained, engages with alternatives and tries to avoid detention. Detention is used instead in a very arbitrary way and clearly for Home Office convenience. People are detained to make it easier for the Home Office to keep track of them and know where they are, but very little realistic thought is given to alternatives in those cases.”32

22.Detainees are given the form “IS91R Reasons for detention” when they are detained. But this form does not include proper evidence or justification for the decision to detain; it is a series of tick boxes. The full evidence and justification is completed separately and inserted into the detainee’s case file.33 Stakeholders and practitioners expressed concern about the lack of a requirement for the Home Office to evidence statements in which they cite “risk of absconding” as the reason to detain or refuse bail.

23.The content of bail summaries gives some indication of the Home Office’s general approach. Practitioners were concerned about inaccuracies within bail summaries, saying that they could “make previously unaired allegations against the applicant, such as allegations of disruptive behaviour in detention.”34 The President of the First Tier Immigration and Asylum Tribunal also noted:

“The Home Office bail summaries (the reasons for withholding and objecting to bail) are prepared by ‘case owners’ not presenting officers. The applicant often maintains that the bail summary contains inaccuracies, for example complying with previous reporting conditions whilst on bail. The inaccuracies and or omissions are most likely to be prejudicial to the applicant.”35

24.We note that the following factors suggesting that the risk of absconding was low applied in cases of former detainees from whom we took evidence:

25.The main guidance for detention caseworkers, Chapter 55 Enforcement Instructions and Guidance, states that it is more

“practical to effect detention later in the process, for example once any rights of appeal have been exhausted […] and/or there are no other factors present arguing more strongly in favour of detention. All other things being equal, a person who has an appeal pending or representations outstanding might have relatively more incentive to comply with any restrictions imposed, if released, than one who does not and is imminently removable.”36

Despite this, stakeholders told us that their clients continued to be detained in circumstances where there was no realistic prospect of removal: “where appeals are ongoing, judicial reviews are live, travel documents have not been obtained and travel arrangements have not been made.”37

26.Several witnesses expressed concern that that there are consistently more individuals released from detention into the community than being removed. We note that the statistics on reasons for detention are not robust enough to establish whether this reflects an inability to carry out planned removals effectively, or simply a large number of brief detentions which are not linked to removal. Nonetheless, we note the disparity was raised by independent figures with inside knowledge of the system, including Stephen Shaw, HMIP and the IMB, which suggests that, at the least, there is some cause for concern.38

27.We recognise that some people may be detained and then released because of late identification of barriers to removal or that there may be a material change in the circumstances of a detainee. However, the evidence suggests there is a case for a more rigorous assessment of the individual’s circumstances and whether detention is necessary before detention is authorised.

28.Detention should only be used if necessary and proportionate. Detention is not necessary or proportionate if lesser interferences with an individual’s liberty are available and meet the legitimate aims pursued. We consider that alternatives to detention should be considered in all cases and a record kept. Detention should only be used where necessary and proportionate and where alternatives are not available or would not meet the legitimate aims pursued. We welcome the Home Secretary’s commitment to do more to explore alternatives to detention and the launch of the pilot to manage vulnerable women in the community who would otherwise be detained at Yarl’s Wood. We look forward to the development of alternatives to detention programmes for other categories of detainees.

Vulnerable individuals

29.We also heard about examples of individuals who have been forced into criminality being detained in immigration detention. Toufique Hossain told us that some of his clients have included women with “all the obvious traits of being potential victims of trafficking and deeply vulnerable”39 who are detained by immigration enforcement officers and detention is authorised by the detention gatekeeper:

“We represent several women from China who were all arrested working in brothels […] The gatekeeper would have gone through his or her tick-box exercise. One of the questions asks for a brief history of immigration and the encounter, so the detention gatekeeper is clearly failing to pick up that a lot of these detainees are being arrested in brothels. The alarm bells of trafficking should be ringing, but they are failing them.”40

We consider that there should be better co-ordination between immigration enforcement and the police so that where it is obvious that individuals have been exploited, detention powers are not exercised.

30.One of the purposes of the Detention Gatekeeper is to identify those who are particularly vulnerable to harm in detention before they enter detention, but this does not seem to be working. Figures released to Stephen Shaw by the Home Office showed that as at 4 February 2018, 1,189 Adults at Risk were in detention.41 In his report, Mr Shaw considered that more needed to be done to ensure that individuals who are at risk are not detained and identified the need for robust independent oversight of the case working process.

31.Both the gatekeeper function and case progression panels were reforms aimed at introducing more independence to detention decisions, following the first Shaw report. We received evidence which suggests that both reforms have made little difference to the quality of decision making at the Home Office.42 Practitioners and stakeholders told us that the effectiveness of detention gatekeepers was limited because they were reliant on the information presented to them by caseworkers. The gatekeepers do not always have access to vital information about an individual case. Stephanie Harrison QC told us:

“I have had cases where the person has served their prison sentence in a secure psychiatric hospital, because they have been so unwell, and there are extensive medical reports from highly experienced psychiatrists who have all assessed this person, including one person saying, “This person should not continue to be detained”. Those reports were not transferred to the Home Office casework file, so the gatekeeper would not see them either.”43

32.The Minister of State for Immigration told us that since their introduction in Autumn 2016, detention gatekeepers have prevented the detention of around 2,300 individuals.44 In further correspondence the Minister clarified that detention gatekeepers prevented about 5% of all detentions and 20% of the referrals for those who were at risk or vulnerable.45

Independent decision making

33.The Home Office gatekeepers and case progression panels may be separate from the initial decision takers, but they are directly under the umbrella of the Home Office. Many of our witnesses spoke powerfully in favour of introducing an independent element into the immigration detention decision making process.46 Advocacy organisations told us that the lack of independence in the current decision making process meant that detainees did not have enough protection against arbitrary detention. They argued this was evidenced by the large sums of compensation paid to those who were unlawfully detained.47 In the period from 2012–17 the Home Office paid £21 million in damages for unlawful detention claims.48 Practitioners also told us that most instances of unlawful detention go unchallenged and damages are not sought due to the difficulties detainees have in securing legal advice and representation, so there is scope for damages to increase.49 We also note that if the use of detention can be reduced without risk, public money will be released for other purposes: detention is expensive.

34.The detention gatekeeper is a purely Home Office function, even though there is some distance from the decision maker. Similarly, the monthly detention reviews and case progression panels are internal Home Office processes carried out entirely by Home Office staff. Stakeholders described these too as “tick-box exercises” which seldom result in release.50 HMIP said that they have found that “the Home Office regularly ignores the advice of its own case progression panel. For example, in Harmondsworth in 2017, the panel had recommended the release of five detainees in the 12 cases we sampled, sometimes more than once, yet detention was maintained every time.”51

35.Dame Ann Owers, Chair of the Independent Monitoring Board and former HM Chief Inspector of Prisons, presented the case for greater independence in decision making:

“It will perhaps not be surprising to hear from someone who has been doing oversight for rather a long time that I think that oversight, and judicial oversight in this case, makes for better decision-making. The fact that you have to be accountable to someone for the decisions you make makes for better decisions.”52

36.The Government told us that it is considering introducing “some element of independence”53 into the detention decision-making process at the Home Office. The department is considering the practicability of bringing Independent Monitoring Board members into the case progression panels as an independent voice. Nonetheless these appear to be independent additions to a fundamentally internal process.

37.Some detention cannot be pre-planned. The Home Office cannot anticipate who will arrive at the border. Nor can it predict whether a raid will find people suspected of immigration offences. But many decisions to detain are made in advance. Decisions are taken to detain someone when they next report, or to go to their place of residence and detain them. The Immigration Minister told us that in the year ending September 2018, approximately 45% of all detentions were planned and 52% of all detentions were unplanned.54 There is no reason why there should not be some independent decision making in the 45% of cases that are planned.

38.We believe that decision making about detention should be independent. Independent decision making will ensure that the initial decision to deprive a person of their liberty is robust and fully justified. The power to detain should not be wielded by the Department which is charged with removals and deportations. We recommend that alongside the Home Office’s current plans to introduce an independent element into case progression panels, in cases where detention is planned there should be properly independent decision-making. Decisions should be pre-authorised by a person or body fully independent of the Home Office. We anticipate that introducing independent decision-making will help to reduce the significant numbers of vulnerable people being detained each year. This could be implemented in the first instance as a pilot which should be reviewed after 24 months to consider whether it has indeed improved the quality of detention decisions.

28 Immigration Act 1971, Schedule 2, Para 16 (1) and Para 16 (2); Immigration Act 1971, Schedule 3, para 2 (2), and para 2 (3)

29 Home Office, Enforcement Instructions and Guidance, Chapter 55, Use of detention

30 Q68 [Rt Hon Caroline Nokes MP, Minister of State for Immigration]

31 Q23 [Stephanie Harrison QC]; Q2 Celia Clarke [Bail for Immigration Detainees]

32 Q2 [Bella Sankey Detention Action]

33 Home Office, Enforcement Instructions and Guidance, Chapter 55. 55.6.3. Form IS91R - Reasons for detention

34 Garden Court Chambers (IMD0033)

35 First-tier Tribunal (Immigration and Asylum Chamber) (IMD0059)

36 Home Office, Enforcement Instructions and Guidance, Chapter 55. 1. 3, Use of detention

37 Q2 [Bella Sankey, Detention Action]

38 Q12 Dame Ann Owers, Independent Monitoring Board; Detention Action (IMD0037); Equality and Human Rights Commission (IMD0019); Law Centre (NI) (IMD0024); Medical Justice (IMD0027); Women for Refugee Women (IMD0013). Detention Action (IMD0037). In his second report to the Home Office, Stephen Shaw also states that given the numbers of people that are released from detention, he remains of the view that “detention is not fulfilling its stated aims,” see Home Office, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons. A follow-up report of the Home Office by Stephen Shaw, Cm 9661, July 2018, pp 22 & 27

39 Q23 [Toufique Hossain]

40 Q23 [Toufique Hossain]

41 A follow-up report of the Home Office by Stephen Shaw Cm 9661, July 2018, p 32

42 Q4 [Celia Clarke, Bail for Immigration Detainees]; Q23 [Stephanie Harrison QC and Toufique Hossain]; UNHCR, The UN Refugee Agency (IMD0020); Freedom From Torture (IMD0009).

43 Q23 [Stephanie Harrison QC, Garden Court Chambers]

44 Letter from Rt Hon Caroline Nokes MP, Minister of State for Immigration, Home Office, to Rt Hon Harriet Harman MP, Chair, Joint Committee on Human Rights, regarding the use of immigration detention: the Government’s strategic approach, dated 3 December 2018

45 Home Office (IMD0062)

46 Independent Motoring Board (IMD0040); Bail for Immigration Detainees (IMD0012); Bail Observation Project (IMD0035); Campaign to Close Campsfield and End All Immigration Detention (IMD0031); Q25 [Stephanie Harrison QC]; UNHCR, The UN Refugee Agency (IMD0020)

47 Bail for Immigration Detainees (IMD0012); Freed Voices (IMD0015); Hirst Chambers (IMD0051); Medical Justice (IMD0027)

48 Letter from Sir Peter Rutman KCB, Permanent Secretary, Home Office, to Rt Hon Yvette Cooper, Chair, Home Affairs Select Committee, regarding Immigration Detention, dated 25 June 2018. (See Annex C)

49 Duncan Lewis Solicitors (IMD0047); Q28 [Stephanie Harrison QC]

50 Bail for Immigration Detainees (IMD0012)

51 Her Majesty’s Inspectorate of Prisons (IMD0016)

52 Q12 [Dame Ann Owers, Independent Monitoring Board]

53 Q71 [Rt Hon Caroline Nokes MP, Minister of State for Immigration]

54 The Minister told us that it was not possible to determine whether detention was planned or unplanned in 4% of cases for the year ending September 2018, see Home Office (IMD0064)

Published: 7 February 2019