Conclusions and recommendations
Independent decision-making
1.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. (Paragraph 28)
2.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. (Paragraph 38)
Legal complexity
3.Individuals cannot enforce their rights effectively if they do not understand them. There is also a greater likelihood of misapplication if the law is overly complex. The Law Commission currently has a project—“Simplifying the Immigration Rules”—considering how immigration rules can be made more simple and accessible. We welcome this. The Government should also consider asking the Law Commission to look at consolidating and simplifying immigration law more widely. (Paragraph 43)
Availability of legal advice
4.Article 5 (of the ECHR) provides that detainees should be entitled to take proceedings by which the lawfulness of detention should be decided speedily by a court and release ordered if the detention is not lawful. Given the challenges individuals face in detention, and the complexity of the law, legal advice and representation is crucial to help individuals to pursue their rights effectively. Legal aid is currently available to challenge detention decisions but generally not available for most immigration applications. Restricting legal aid to such challenges without addressing the underlying immigration case may undermine the effectiveness of such challenges. It may also be a false economy. Not only is detention itself expensive, but there are likely to be costs elsewhere in the system, if the lack of legal aid means it takes longer to settle someone’s immigration status and wastes more court time with unrepresented individuals. It could be cheaper overall if legal advice were provided at the outset, so that all issues could be properly considered when the issues first arise and thereby reduce the need for repeated court interventions. We have already recommended that the Government consider whether immigration cases engaging the Article 8 right to private and family life be brought within the scope of civil legal aid, where they would be available on the means and merits test basis. We consider there is a case for similarly reinstating legal aid for all immigration cases. (Paragraph 47)
5.Those in the criminal justice system have initial access to prompt legal advice; there should be similar provision for those in immigration detention. Initial legal advice appointments under the Detention Duty Advice scheme should be made automatically, unless the individual opts out. Surgeries should be long enough to ensure that there is sufficient time for the detainee to explain their case and for the adviser to collect the necessary details needed to take the case forward to representation. The new system for providing advice should be kept under review to ensure that the firms responsible for advising detainees have the necessary skills and experience to do so. (Paragraph 53)
Legal advice in prisons
6.If it is necessary and proportionate for an individual to be detained under immigration powers after they have finished serving a prison sentence, then detention should take place in an immigration removal centre. (Paragraph 54)
7.Foreign nationals who are serving custodial sentences in prisons and who are liable to deportation at the end of their sentences are among those detained under immigration powers for the longest periods. This is inappropriate and inefficient. In many cases it should be possible for the Home Office and the Foreign and Commonwealth Office to seek to resolve early in the course of a sentence problems with documentation or the attitude of the receiving country. Access to legal advice in prison would mean that such offenders could engage with the legal processes to resolve their immigration status while serving their sentence. The Home Office should make it a priority to resolve the immigration status of prisoners at the earliest opportunity. People liable to deportation should be given notice of the Home Office’s intentions to deport as far before their release date as possible. Individuals should then have prompt and automatic access to legal advice so that they can engage with the legal processes for challenging deportation appropriately. This should mean immigration status issues are resolved before custodial sentences end and offenders can either be released or removed at the end of their custodial sentence. This would also help to manage the expectations of both the detainee and their families. (Paragraph 60)
Time limits
8.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. (Paragraph 68)
9.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. (Paragraph 69)
Independent review of detention
10.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. (Paragraph 70)
11.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. (Paragraph 74)
Safeguards for Foreign National Offenders
12.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. (Paragraph 75)
Video links and bail hearings
13.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. 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 (Paragraph 78)
14.More regular and more independent review would also increase the protection available to the most vulnerable. (Paragraph 79)
Adults at Risk policy
15.We are concerned that the Adults at Risk policy does not give adequate protection to individuals at risk of harm in detention. There is also inadequate provision for the identification of, and provision for, individuals who lack mental capacity in immigration detention. The Government should make better provision for the identification of individuals who lack mental capacity in detention. There should be, at all times, an on-site suitably qualified expert at all IRCs able to make such assessments in accordance with mental capacity legislation. We also consider that there should be automatic provision of advocacy services in cases where individuals do not have full capacity to make decisions for themselves on account of their mental capacity to ensure that such individuals are able to participate in the legal processes to challenge their detention and make representations in respect of any immigration applications. (Paragraph 83)
Detention conditions and treatment
16.The Home Office should give serious consideration to improving the oversight and assurance mechanisms in IRCs and the immigration detention estate generally to ensure that any ill-treatment or abuse is found out immediately and action is taken to correct it, to take steps against those responsible and to ensure lessons are learned to put in place effective prevention mechanisms. (Paragraph 85)
17.More needs to be done to make the detention estate less like prisons and create as open a regime as feasible on the inside, which is proportionate when dealing with those detained for administrative purposes. 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 have been convicted of serious offences and those who pose a risk of violence from other detainees. (Paragraph 86)
Published: 7 February 2019