5Detention reviews
Independent review of detention
70.Witnesses considered that the introduction of a maximum time limit for immigration detention could lead to it becoming the normal detention period and that the Home Office would continue to hold individuals that would otherwise be released in a short period of time, such as a few days, up until the expiry of the time limit.92 The 28 day limit should be a maximum, not the normal time limit. There is no reason why the existing pattern in which most detention is for considerably shorter periods should change. The introduction of a maximum time limit should supplement the existing other safeguards in the immigration detention system rather than replacing them. The constraints on the state’s powers to detain for immigration purposes established under the common law and ECHR will continue to apply in all detention cases, including those involving foreign national offenders. The current system of reviews should also be strengthened.
71.Under the current immigration detention system, individuals can challenge their detention by initiating an immigration bail application, which considers whether a person should be released. We note that the President of the FTTIAC has told us that applications for bail have fallen in a twelve month period from 1200 per month to 600.93
72.The only automatic court control of the detention decision comes after an individual has spent four months in detention, at which point the Secretary of State is required to refer the immigration detainee to the First Tier Tribunal Immigration and Asylum Chamber for consideration of immigration bail. For individuals held in detention for less than four months, the onus is on them to apply for immigration bail.
73.The Home Secretary has stated that there will be automatic immigration bail referral after two months in detention from January 2019, although this has not yet been implemented. This still stands in stark contrast with the criminal justice system, where if the police need to apply to a magistrate if they wish to detain someone for more than 36 hours.94
74.Immigration detainees should not have lesser protections and rights than those detained under 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 detention beyond 72 hours.
Safeguards for Foreign National Offenders
75.There are other concerns about the way in which the process works. The automatic immigration bail provision, which was introduced via the Immigration Act 2016, excludes foreign national offenders detained pending deportation and persons detained pending removal in the interests of national security.95 These categories are known to be held the longest in detention.96 The Government should extend the current automatic bail referral provision in Schedule 10 of the Immigration Act 2016 to all categories of detainees, including FNOs, to ensure that individuals who are most likely to spend lengthy periods in detention have decisions on their detention reviewed by a judge and are given the opportunity to make representations. This should be done whether or not our recommendation for a time limit on detention is accepted.
Video links and bail hearings
76.Most immigration detainees will attend a bail hearing at the tribunal using video-conferencing, which is provided at the immigration removal centre to link to the Tribunal. The Guidance for Immigration Bail for Judges of the First-tier Tribunal states that detainees may request to attend the bail hearing in person and a judge will decide whether the person should be brought to the hearing centre.
77.The President of the First Tier Tribunal told us that while the hearings are fair there can be technical limitations, which need to be addressed. Judge Michael Clements said that while the video link system ensures that there are no logistical delays that would be involved in transporting immigration detainees from the centre to court, it is:
“[…] a basic system with variable quality and occasional breakdowns. The HO have shown they are able to provide excellent video linking as seen in the out of country s94B appeals. It is essential for the applicant to be able to give ‘best evidence’. There is concern that on occasions the applicant can be distracted by ‘noises off’ at the IRC, shouting from other detainees and doors banging. The picture quality is generally poor with the applicant often not being able to see all those in court, e.g. their sureties. The FtTIAC do however agree that the hearings are fair and the applicant is able to give evidence for a decision to be reached, as often the evidence is limited.”97
78.Bail hearings are an important safeguard for immigration detainees. We are concerned about the quality of the system when such hearings are by video link. The Home Office should address this as a matter of urgency, and in the meantime the importance of applying for bail, considering the conditions, and being active and energetic in the process should be explained to all detainees. We were concerned by reports that detainees were not always aware of how to initiate bail hearings or of their importance. We recognise that IT needs investment in all courts and tribunals. There should be better quality IT for immigration bail hearings for all in detention with a dedicated video suite within all IRCs to ensure that all disruptive noise is cancelled out.
Vulnerable detainees
79.Given that the legal mechanisms to challenge detention before the two month hearing are not automatic and individuals need to initiate an immigration bail or judicial review application, some individuals, such as those with language barriers or vulnerabilities, are at a significant disadvantage. HMIP told us that some inspections have showed that detainees are unaware they have the right to apply for immigration bail because Home Office staff had failed to advise them about their rights to bail.98 In particular, there appear to be no policies or mechanisms to support, or even identify, detainees who enter the detention estate with pre-existing mental health conditions, nor to effectively assert their right to initiate immigration bail and challenge the lawfulness of their detention.99 This was recently identified in the Court of Appeal in R (VC) v SSHD which found the lack of provision of advocates to assist mentally ill detainees to make representations put them at a substantial disadvantage compared to other detainees. The Court of Appeal also held that the Secretary of State’s failure to consider the need for such safeguards amounted to a breach of the Equality Act 2010, by failing to make reasonable adjustments to the decision-making processes regarding the continued detention of people with mental health conditions.100 We note the FtTIAC has said “we would support review to ensure that those detained who may not have recourse to legal advice or fail to understand the process, are detained for the least time necessary.” More regular and more independent review would also increase the protection available to the most vulnerable.
94 The Police and Criminal Evidence Act (PACE) 1984 gives the police a power to detain those suspected of an offence under the general criminal law for up to 36 hours before charges are brought. With the authority of a magistrate, this period can be extended to a total of 96 hours. After this period a person must be brought before a court or released. These provisions apply pre charge.
95 Home Office, Immigration bail, published for Home Office staff, 10 August 2018, p. 57
96 Foreign national offenders are those who are most likely to have excessive length of detention – the average on 4 February 2018 was 130 days. See, Home Office, A follow-up report of the Home Office by Stephen Shaw, Cm 9661, July 2018, p 89
Published: 7 February 2019