Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  NOTES

  1 ‘This Man Faces Deportation For Carrying Cannabis Despite Living In Britain Since He Was 4’, BuzzFeed, 31 May 2019.

  2 Akinyemi v Secretary of State for the Home Department [2019] EWCA Civ 2098.

  3 ‘Home Office Resource Accounts 2004–05 and follow-up on returning failed asylum applicants, Sixtieth Report of Session 2005–06’, House of Commons Committee of Public Accounts, 21 July 2006.

  4 ‘Managing and removing foreign national offenders’, National Audit Office, 17 October 2014, p. 17.

  5 ‘Annual Report 2019’, Independent Chief Inspector of Borders and Immigration, June 2019, p. 10.

  6 Tony Blair, Hansard, House of Commons debate, 3 May 2006, vol. 445, col. 961.

  7 Lee v Secretary of State for the Home Department [2011] EWCA Civ 348.

  8 Tribunal Quarterly Statistics, available at: https://www.gov.uk/government/collections/tribunals-statistics

  9 Theresa May speech on 4 October 2011, available at: https://www.politics.co.uk/comment-analysis/2011/10/04/theresa-may-speech-in-full

  10 ‘Catgate: another myth used to trash human rights’, The Guardian, 4 October 2011.

  11 ‘Theresa May put on the spot over Human Rights cat’, Full Fact, 4 October 2011.

  12 ‘Judges who allow foreign criminals to stay in Britain’, Daily Telegraph, 16 June 2012.

  13 ‘Judge who let Taliban soldier remain in Britain now allows refugee who raped girl, 12, stay in UK’, Daily Mail, 14 July 2012.

  14 See Paragraph 2 of the full determination, available at: https://www.freemovement.org.uk/judge-hung-out-to-dry/

  15 ‘Criminality: Article 8 ECHR cases’, Home Office, available at: https://www.gov.uk/government/publications/criminality-guidance-in-article-8-echr-cases

  16 R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42.

  17 ‘An Inspection of the Emergency Travel Document Process’, Chief Inspector of Borders and Immigration, March 2014.

  18 ‘Managing and removing foreign national offenders’, National Audit Office, 17 October 2014, p. 32.

  19 ‘An inspection of the Home Office’s management of non-detained Foreign National Offenders’ and ‘An inspection of the Home Office’s Reporting and Offender Management processes’, Chief Inspector of Borders and Immigration, November 2017.

  20 ‘A re-inspection of the Home Office’s Reporting and Offender Management processes and of its management of non-detained Foreign National Offenders’, Chief Inspector of Borders and Immigration, March 2019.

  CHAPTER 11

  IMMIGRATION DETENTION: ENFORCING CONTROL

  Alois Dvorzak was a Canadian national detained for nineteen days in early 2013. He died in detention and was wearing handcuffs when he took his last breath. He was eighty-four years old and suffering from Alzheimer’s. The initially anonymous details of his treatment emerged only months later in a report by Her Majesty’s inspector of prisons, then Nick Hardwick, in which he criticised the ‘excessive and unacceptable’ use of handcuffs in a case ‘where a sense of humanity was lost’.1 Channel 4 News followed up the story and broadcast a poignant investigation into Dvorzak’s life.2 The full, even more horrifying, story was detailed later at the inquest into the death, which was diligently reported by Phil Miller for the website Open Democracy.3

  THE HUMAN COST OF DETENTION

  Dvorzak had been trying to visit his estranged daughter in Slovenia but gave confused answers to immigration officials as he passed through Gatwick Airport on his way. He was refused entry to the UK on 23 January 2013 and the frail 84-year-old man slept his first night in this country across some fixed chairs in a holding room at the airport. The Canadian High Commission was contacted, and they suggested Dvorzak be sent to a hotel or a hospital. He was duly sent by immigration officials to East Surrey Hospital, where he was assessed as fit for detention and fit to fly. For Dvorzak’s second night in the UK, though, a hospital was found while immigration officials waited for a place to become available in an immigration detention centre. His third night was spent at Harmondsworth detention centre, a grim and imposing prison-like building situated in a ‘wasteland of motorways and outposts of the air terminals beyond Heathrow’, as an earlier visitor, Amrit Wilson of the Joint Council for the Welfare of Immigrants, put it in 1975.4 Unfortunately, I know it well myself, from my visits to clients being detained there. Situated at an abrupt turn-off from the Colnbrook bypass, its huge scale and razor wire cornicing is severe on the outside, while the interior exudes sanitised violence. The on-site duty doctor filed an official report stating that Dvorzak was not fit for detention. She even made a point of calling the detention centre manager and the Canadian High Commission herself. Dvorzak stopped taking his heart and dementia medication and everyone who came into contact with him was worried about his frailty and health. One clinician noted in writing that Dvorzak was ‘at high risk of death in detention’. Nevertheless, his detention continued.

  ‘I haven’t got much time, I need to go to see my family,’ a tearful but, as always, smartly dressed Dvorzak told Vernon Simmonds-Dunne, the older persons liaison officer at Harmondsworth. Officials attempted to remove him to Canada, but the removal was aborted because Mr Dvorzak became distressed, banging the side of the detention van and constantly shouting, ‘NO, NO, NO.’ Twice, he was taken to hospital from the detention centre as he complained of chest pains, and on both occasions he was handcuffed and chained to a security guard because he was, incredibly, assessed to be an escape risk. The private contractor responsible for the day-to-day running of the detention centre, Firat Loveridge, admitted at the inquest that when he saw Dvorzak in the ambulance in handcuffs he realised restraints were unnecessary, but he said, ‘There was no room for discretion,’ and removing the cuffs would have slowed Dvorzak’s going to hospital, he thought. This was a model example of what Hardwick would describe in his later inspection report as ‘a lack of intelligent individual risk assessment’.

  On his second visit to hospital, on 10 February 2013, Mr Dvorzak died. He was still wearing the handcuffs. They were only removed after his heart and breathing had stopped as medics attempted resuscitation. He had been handcuffed for five hours by the time of his death. It was a miserable, ignominious end.

  The case is a distressing one and it is unusual for featuring an elderly, ethnically white citizen of a rich country, whose detention only ended because he died. Academic Mary Bosworth spent 2,400 hours, equivalent to three days per week for twenty months, observing inside immigration detention centres around the United Kingdom with unprecedented access. In that time, she met one white Australian, one white Zimbabwean, one white South African and no New Zealanders or Canadians.5 But, up until almost the end, what happened to Alois Dvorzak was in many ways typical. Detention is only supposed to occur when there is a realistic prospect of removal. Dvorzak was, in reality, never really removable, at least not without very considerable care or planning. And there was no hint whatsoever of either care or planning in the nineteen days for which Dvorak was detained.

  So why was he detained at all? His case was clearly a challenging one but that is no excuse for what was inflicted on him. What was supposed to be a short period of detention ended up going on for almost three weeks, in an ordeal ended only by death. One wonders what else, if anything, might have finally brought Dvorzak’s detention to a conclusion. A series of private contractors working for the company GEO, which profited from immigration detention by providing the facilities to the Home Office under a commercial contract, made critical decisions concerning Dvorzak’s welfare, from the choice to handcuff him to the judgement to abort his attempted removal. Multiple doctors certified that Dvorzak was unfit for detention using the official ‘Rule 35 report’ form and yet detention continued. The healthcare Dvorzak received was obviously inadequate and far below that which could be provided by normal NHS services, and Dvorzak was clearly extremely distressed by his experience. There was no single person who was responsible
for him, as the sheer number of witnesses from the detention centre who gave evidence at the inquest testifies. Yet, officials and private contractors consistently followed the line of least resistance, even though Dvorzak suffered appallingly as a consequence.

  All of these were and still remain standard operating procedures in immigration detention. The effects on detainees are awful and the law reports are replete with examples. Take Xiao Yun Xue, who was detained for over two years before being released back into the community, having been irreparably damaged by her experience. Mrs Justice Laing ultimately found that she had been unlawfully detained.6 ‘The longer her detention went on, the more vulnerable she became,’ found Laing. ‘Her physical health has been significantly compromised, probably permanently. Her mental health also declined in detention. She eventually fell down a stairwell and broke her back.’ Officials, it was found, had ignored the copious medical and psychiatric evidence that was sent to them. In the meantime, Xue self-harmed repeatedly, became psychotic and, owing to side effects from her medication, became physically unable to urinate. She had to be issued with and taught to use a catheter. All this because she had no right to be in the UK and had committed a string of minor offences – but at no time does there seem to have been any real prospect of removing her. What was the point of the suffering she endured and the financial cost of detaining her?

  In another example from the law reports a young woman, known only as MD, came to the UK from Guinea to join her refugee husband. She entered lawfully with a visa but was detained on arrival after giving confused answers to an immigration officer. Officials suspected that she might be a child but nevertheless kept her in an adult detention facility, and even after they realised their mistake, her confinement dragged on and on. In the end, she was detained for eleven months. MD had no mental health difficulties before going into detention but her mental state deteriorated to the point that she suffered both major depression and PTSD after being released. The judgment makes extremely distressing reading:

  She made superficial scratches on her chest and abdomen on the 26th August 2011. Similar incidents continued to take place. She was restrained, removed from association with other detainees and handcuffs were used to stop her harming herself. The Claimant self-harmed on at least eleven occasions between August and November 2011 including occasions when she cut her forehead with the top of a sardine tin, when she again cut her forehead and the right side of her face this time with pieces of china, when she tried to strangle herself using a mobile telephone cable as a ligature and placed a pillow over her head, when she banged her head against the wall, when she cut her neck using pieces of china and occasions when she cut her stomach, neck and arm.

  Hearing her case, Judge Price Lewis QC accepted that MD’s mental collapse was caused by her continued detention and the lack of any satisfactory medical treatment at Yarl’s Wood detention centre. He ruled that her detention was unlawful, found that the detention amounted to inhuman and degrading treatment and ordered that damages be paid.7

  These are not isolated examples of an otherwise humane system now and then malfunctioning. At the time of writing, the charity Inquest had recorded thirty-seven deaths in immigration detention centres since 2000 and a further fourteen deaths of immigration detainees held in prisons under immigration laws. In total, twenty deaths were non-self-inflicted and twenty-six were self-inflicted. In fact, nearly thirty people have died in immigration detention since Alois Dvorzak’s death in 2013.8 A 2017 study into the mental health of immigration detainees in the United Kingdom found that more than half of detainees suffered from depression, more than one-fifth experienced PTSD, one in ten faced psychotic or depressive affective disorders and one-third had some sort of personality disorder.9

  The human cost is clearly borne first and foremost by the detainees. But it also takes a toll on those employed to enforce the system, who sometimes take it out on those placed in their care. Most detention centres are run by private companies under secretive contracts with the Home Office. During her earlier mentioned research work, Mary Bosworth interviewed many detention centre staff.10 Detention custody officers need a minimum qualification of one GCSE and normally start on a salary in the mid-£20,000s. They come from a wide range of backgrounds, including straight from school, the armed forces, the prison service, retail, homemaking and security work such as nightclubs and airports. After six weeks of training, much of which is on the job, they work long shifts, with limited job security and few opportunities for career advancement. Staff turnover is high, and it is not hard to see why.

  Jane, who worked at Morton Hall Immigration Removal Centre, expressed her frustration at her own lack of agency and self-determination. ‘Everything is governed by the Home Office,’ she complained. ‘Mentally, it’s very, very, very challenging. Because you don’t make a difference to [detainees], really. You make no difference. Whereas with a prisoner, you feel as though you’re working towards something, you don’t have that kind of satisfaction, really … We make no difference whatsoever.’ Of course, her frustrations are nothing compared to what the detainees experience. But, indirectly, we get an inkling of how utterly powerless they might feel.

  Another of Bosworth’s interviewees, Imran, is a manager at Harmondsworth and seems unaware at a conscious level of the impact his work has on him or his charges. ‘To start with, seeing self-harm affected me, yes. I was a bit shocked, but now, I’ve got to say, no. Once I’ve dealt with it I move on. I have to, you know.’ It seems unlikely that he could really just ‘move on’ – unless he has distanced himself so far from the detainees he is supposed to look after that he has no concern for their welfare at all.

  Immigration detention centres are not therapeutic, healing environments but ones of coercive force that drive detainees to harm themselves. Detainees are not willing participants; they are imprisoned against their will with the threat of violence hanging over them if they do not comply. Some detention centre staff, themselves brutalised by their experience of carrying out this state-sanctioned violence, react with abuse, aggression and violence, as was revealed in an undercover investigation by BBC Panorama in 2017. Video footage secretly recorded by 21-year-old whistleblower Callum Tulley showed a guard choking a detainee. Other guards recounted violent acts they had committed against detainees, including banging one’s head and forcing another’s fingers back against his hand. One claimed, ‘If I killed a man, I wouldn’t be bothered.’11

  INDEFINITE DETENTION

  These anecdotes and statistics are all very well, but it is hard to really understand the impact of being detained under immigration law powers without visiting a detention centre yourself, or at least spending time with those who have experienced it. Michael Darko was detained for two and a half years before being released back into the community. He says that it was like prison, except ‘the only difference here was that there was no end to your detention’. His experience was a form of ‘mental torture’, he said, leading him to campaign for an end to the system that scarred him. He is a member of Freed Voices, a group of former detainees who speak out about their experiences in the hope that the system will change, and others will not have to go through the same experiences.

  In interviews with those who have had anything to do with immigration detention centres, the single, stand-out worst thing seems to be that it is indefinite. There is no defined maximum period, and a detainee has no idea for how long they will be kept there against their will. This marks it out as a very different experience to spending time in prison as a result of a criminal sentence, for which there will be a known release date. ‘You don’t know what you are doing there, you don’t know how long you will be there,’ says Rabah, an Algerian national who was detained for two years. ‘Sometimes it feels like you will be there for ever.’ Another detainee said, ‘While I was an immigration detainee in prison, I didn’t know I had the right to apply for bail. I really believed the UKBA could hold me there for as long as they wanted. I thought they had t
he power to do that.’12

  Detainees feel helpless and powerless, and with good reason. They have no idea if or when they might be either removed from the UK or released into society and, as we will see, many are unable to do anything to bring about either outcome. They can ask to be released but their requests are often refused.

  Home Office ministers have consistently rejected claims that the United Kingdom has a system of indefinite detention. As immigration minister in 2015, James Brokenshire argued that it was wrong to say immigration detention is indefinite because there are some legal constraints on the power to detain, and the phrase ‘implies detention that cannot be brought to an end’. It is certainly true that there are legal constraints, but they are vague in nature. There is nothing in the Immigration Act 1971 or any other legislation that explicitly limits the power to detain. In a case known as Hardial Singh, back in 1983, Mr Justice Woolf held that there must be some implied limits.13 Mr Singh had been detained for three months at HMP Durham and the legal action was an application for habeas corpus, an ancient form of request to be released from detention dating back to the Magna Carta of 1215. Woolf decided that the implicit limits must be:

  The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.