4Time limit
Article 5 ECHR and UK legal framework on length of detention
61.The European Court of Human Rights has said that the lack a time limit in the UK’s immigration detention system did not breach Article 5 of the ECHR, because there were other safeguards within the system against arbitrary detention, in particular, the “Hardial Singh” principles laid down in R v Governor of Durham Prison, ex p Singh.76
62.Witnesses told us that there are “countless” examples where the Home Office did not comply with the Hardial Singh principles and that further clarity is required to define what a “reasonable period” of detention is.77 As we have seen the length of detention varies from a few days to years.
63.There can be a number of reasons for removal being delayed, including problems securing the detainee’s travel documents or the agreement of the receiving country, detainees’ initiating further legal challenges to secure the right to remain in the UK, the identity or nationality of the individual being in dispute; or in some cases detainees themselves seeking to frustrate the removal process. While these are all understandably difficult situations to resolve, they do not justify prolonged detention in and of themselves.
Impact on detainee
64.Although official statistics show that the great majority of individuals leave detention within 28 days,78 individuals who are detained do not know if their detention will last for a few days or months or even years. A former detainee told us that she was not sure how long her detention would last “because there were other people who had been there for three years. I was wondering if I was going to be there for that long or a lesser time.”79 She was eventually detained for three months. Two other former detainees described the indeterminate nature of detention and uncertainty associated with it as “mental torture”.80 The monitoring bodies, HMIP and the IMB, expressed serious concern about the open-ended nature of detention and the impact this had on individuals. HMIP told us that it regularly finds individuals held in detention for extended periods of time, giving the examples of an individual who was detained at Harmondsworth IRC for more than four and half years, and another at Yarl’s Wood for three years.81 Both monitoring bodies said that when speaking to detainees during inspections or visits, the indeterminate nature of immigration detention is a key cause of distress and anxiety:82
“[…] IMB members have a unique and clear insight into the anxiety and stress caused by immigration detention itself, and by the fact that, unlike prisoners within the criminal justice system, detainees simply do not know how long they will be detained. This, combined with the stress and uncertainty of their immigration cases, and the worry about families or children living in the community, can cause enormous distress. It is well-documented that detention is damaging to mental health and that the longer the detention continues, the more negative an impact it has upon mental health.”83
65.There is a growing body of research on the negative impact of detention on individuals and their mental health and the worsening of mental health the longer the detention continues as depicted in Mary Bosworth’s literature review on mental health and immigration detention.84
Lack of incentive to progress cases efficiently
66.Administrative guidance states that “detention must be used sparingly, and for the shortest period necessary.”85 But we heard that the Home Office does not always act diligently and expeditiously when progressing detention cases. HMIP said that while removals can fail for a variety of reasons, some detention cases were prolonged due to factors within the Home Office’s control. HMIP inspections have shown that the Home Office “inconsistently manage and progress cases where people have been detained for extended periods” and “regularly ignores the advice of its own case progression panel.” HMIP told us that in Harmondsworth in 2017, the panel had recommended the release of five detainees in the twelve cases that were sampled “sometimes more than once, yet detention was maintained every time.”86 In his observations of detention reviews by case progression panels, Stephen Shaw also found that there were missed opportunities to progress detention cases towards removal earlier in the detention period, leading to detainees being detained for longer periods than was necessary.87 Other witnesses said that without a time limit, there is no incentive for the Home Office to progress cases at pace.88
Arguments against a time limit
67.The Government’s reasons for resisting the introduction of a maximum time limit for immigration detention have included the following:
- an individual’s continued detention remains under regular review to check that it remains lawful and in line with government’s policy and where these no longer apply, detainees are released;89
- individuals have the right to apply for release from detention on immigration bail and challenge the lawfulness of their detention in the courts;90 and
- time limits for immigration detention could be used by immigration detainees with unfounded claims to stay in the UK to frustrate the removal process and be released.91
We do not consider detention reviews and the bail process sufficient safeguards against lengthy detention and in the next Chapter we look at ways to strengthen them. We consider it is possible to build a system with a time limit which is accompanied by measures designed to prevent the abuse of the system. These safeguards are discussed below.
68.Detention should be used only where it is necessary and proportionate. Indefinite detention causes distress and anxiety and can trigger mental illness and exacerbate mental health conditions where they already exist. Moreover, the lack of a time limit on immigration detention reduces the incentive for the Home Office to progress cases promptly which would reduce both the impact on detainees, and detention costs. We recommend that 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. The decision on whether the 28 day period should be extended should be a judicial one, to be considered on application from the Home Office.
69.We consider these constraints should be placed on a statutory footing. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill deals with the rights of those who can currently exercise free movement rights. There will be a change in their position as the guidance currently stipulates that “EEA nationals and their family members should not be detained whilst a decision to administratively remove is pending”. Given that the Immigration and Social Security Co-ordination (EU Withdrawal) Bill is likely to be the most significant opportunity to seek legislative change in the foreseeable future, we will be seeking to amend it to ensure that restrictions on the length of immigration detention apply. It is possible that a time limit on immigration detention could be introduced by administrative action, which would be some improvement, but, in our view a second best.
76 J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016; for the Hardial Singh principles, see para 7 above.
77 Duncan Lewis Solicitors (IMD0047); Bhatt Murphy solicitors and Garden Court chambers (IMD0022). See also similar arguments by Detention Action (IMD0037): “In the absence of a clearer directive over appropriate lengths of detention, this approach is clearly not working. As Shaw says, “the size of the detained population is determined more by the available bed space, rather than any in-depth analysis of need” and that “the current system must be regarded as happenstance”; and Women for Refugee Women (IMD0013).
78 Out of the 5,949 individuals leaving detention in September 2018, 71% left detention within 28 days.
82 Her Majesty’s Inspectorate of Prisons (IMD0016); Independent Motoring Board (IMD0040); Q13 [Jane Leech, IMB]
84 Review into the welfare in detention of vulnerable persons: A report to the Home Office by Stephen Shaw, Cm 9186 January 2016. Appendix 5, The impact of immigration detention on mental health, a literature review by Mary Bosworth, University of Oxford.
85 Home Office, Enforcement Instructions and Guidance, Chapter 55. 1. 3, Use of detention
Published: 7 February 2019