by Colin Yeo;
The deportee may only be detained for a period that is reasonable in all the circumstances.
If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.
The Secretary of State should act with all diligence and expedition to effect removal.
The Hardial Singh case has been followed by other judges ever since, but these principles remain the only restrictions on the power of immigration detention. There is no specific maximum time limit for which a person can be detained, as long as it is seen to be ‘reasonable in all the circumstances’. Unfortunately, this is very much a matter for debate in each and every case.
The dictionary seems to be on the side of campaigners. My favoured dictionary of choice, Chambers, defines ‘indefinite’ thus:
indefinite /in-def-i-nit/
1. Without clearly marked outlines or limits
2. Not clearly distinguished in character
3. Not precise, clear
4. Undetermined…
That exactly describes immigration detention in the United Kingdom. There is no real, proper time limit after which a detainee must be released, unlike in every other European country. In France, for example, the limit is ninety days. In Germany it is eighteen months. In Portugal it is sixty days.14 In the minimum standards set by the EU Returns Directive, which the United Kingdom never opted into, the limit is six months, though this can be extended by a further twelve months in some circumstances.15 Around one-third of detainees in the UK are detained for twenty-eight days or more and in any given year around 500 are detained for six months or more. Worse still, between 2010 and 2018, thirty-three migrants were detained for more than three years, and the longest period spent in detention was just over six years.16 By comparison, a prison sentence of even a day would usually be considered a severe and humiliating punishment by most citizens, if it were inflicted on them as a sanction.
THE BUSINESS OF DETENTION
In the 1980s, at most one or two hundred migrants might be detained under immigration powers, mainly in prisons.17 Since then, dedicated facilities detaining migrants in prison-like conditions have proliferated. Harmondsworth was the first in the 1970s and it was substantially rebuilt in the 1980s. Then, later in that same decade, the prison at Haslar near Portsmouth started to house migrants in a separate wing. With the government of the day unafraid of or indifferent to accusations of using a Napoleonic-era floating prison hulk, the MV Earl William, a former cross-Channel ferry, was drafted into service to house up to 240 migrants between May and October 1987. It broke free from its moorings during a storm and forty Tamil asylum seekers had to be rescued. Tinsley House near Gatwick and Campsfield House near Oxford followed in the 1990s. Dover Castle, Lindholme in Yorkshire, Oakington near Cambridge (where I later got my first job in immigration law as an on-site legal adviser), Dungavel in Scotland, Yarl’s Wood near Bedford, Colnbrook next to the existing detention centre at Harmondsworth and Brook House near Gatwick all followed between 2000 and 2009. Some were custom built from scratch and others were converted from prisons or military barracks. A special detention facility for families with children was opened at The Cedars in West Sussex in 2010, Morton Hall in Lincolnshire was opened in 2011, and The Verne on Portland followed in 2014.
Despite all these new facilities, prisons are still in use today as homes for migrants detained under immigration powers, with as many as 1,000 immigration detainees held in this way at any one time.18 Private contractors from different companies run most of these facilities under detailed contracts with the Home Office and all are governed by the Detention Centre Rules. The physical environment, regime and culture varies considerably between the different detention centres, though. Dungavel, Campsfield and Tinsley House were preferred by male detainees, while Colnbrook and Brook House, built to exacting Category B prison security standards and with very limited internal movement or mixing by detainees permitted, were very unpopular.19
This extensive building programme suggests a massive growth in the use of immigration detention powers. The publicly available Home Office statistics on immigration detention only date back to 2009 and they do confirm a seemingly inexorable rise in the number of detainees until 2015, but it has fallen back since then, with several detention centres being closed.20 At its peak in 2015, the ‘immigration detention estate’, as it is known, held around 3,500 migrants at any one time and over 30,000 were experiencing immigration detention per year. At the time of writing, following a number of scandals and a major review by the Home Office, the number had fallen back to fewer than 2,000 being held at any one time and fewer than 25,000 experiencing detention per year.
Source: Home Office quarterly statistics year ended June 2019 (2nd ed).
Table dt_01 updated with figures from September 2019.
We do not know the cost of the mammoth building programme or the profits that the various private contractors make from running their private detention centres, though it is estimated that the Yarl’s Wood facility alone cost around £100 million at the time it was built.21 We do know that, in 2019, the basic cost of immigration detention for one person for one day was £87.71. The annual upfront cost of immigration detention for the year ended March 2018 was £108 million. However, even aside from the human cost, that is not the whole, true financial cost. The charity Bail for Immigration Detainees points out that this figure does not include ‘administrative costs, the cost of opposing bail and other legal costs which could amount to thousands of pounds per detainee, nor do they include the costs the Home Office has paid out in compensation for unlawful detention’.22 Between 2011 and 2019, for example, the government paid out well over £43 million in compensation to people wrongfully apprehended in immigration detention. For the financial year 2018/19, the Home Office reports paying a total of £8.2 million compensation for 312 cases of unlawful detention.23 The totals for coming years are likely to be even higher, as a number of major claims for damages are known to be pending from EU citizens detained under Home Office projects that were later found by the High Court to be unlawful.24
ARBITRARY AND OPPORTUNISTIC
From the outside looking in, initial decisions to detain a person often seem opportunistic and random rather than strategic. The result is that the ‘wrong’ people end up being detained. We know this because of the high number of vulnerable people being detained who should not be according to the government’s own policies, the high level of compensation payments being made for unlawful detention, and the fact that the proportion of detainees released into the community from so-called ‘removal’ centres now stands at over 50 per cent – a proportion that has increased significantly in recent years. How can it be, then, that in 2012, a joint inspection report on immigration detention casework by HM inspector of prisons and the chief inspector of borders and immigration found that most decisions to detain were ‘reasoned and defensible’, and only around 10 per cent were not?25
First of all, when a country is detaining around 25,000 people per year, a 10 per cent rate of error is still 2,500 people. Secondly, it can be said that detention causes vulnerability, particularly if prolonged; as we have seen, the mental and physical health of detainees can deteriorate rapidly in immigration detention. As a high-level review of previous research by eminent doctors in 2018 concluded, ‘Detention should be viewed as a traumatic experience in and of itself.’26 Thirdly, the pathways into detention generally rely on happenstance rather than planning. Officials are not identifying high-risk migrants, planning their removal, putting the documents in place to ensure their expulsion and then detaining and removing them. Rather, migrants are ‘encountered’. Foreign national offenders reach the end of their sentences, individuals claim asylum and unauthorised migrants are discovered in enforcement raids or by the police.
Worst of all, migrants of any given nationality are often rounded up solely beca
use of their nationality for group removals on chartered flights. Around 2,000 migrants are expelled in this manner each year, which is about 15 per cent of the total number of removals. When a date for one of these charter flights has been set, officials will look through their case files for migrants from that country and detain them with a view to including them in the group removal, with the emphasis being on their nationality rather than any other factor. To make the situation even graver, a greater number of detainees than can physically be boarded onto the plane will be apprehended, with a view to filling the spaces vacated by last-minute legal reprieves, in a practice that has been repeatedly condemned. Charter flights to Nigeria, Ghana and Pakistan in particular are routinely massively overbooked by the Home Office, raising questions of racial bias.27 Although it is a cost-effective method of immigrant removal, this practice causes huge and largely pointless distress to those who are detained. Overbooking for charter flights has been repeatedly criticised by HM inspectorate of prisons and the original Shaw Review in 2016 strongly recommended that it cease, with Shaw writing that he found ‘the whole practice to be unsavoury and inconsistent with a welfare-centred approach’. The recommendation was rejected by the Home Office, however, and overbooking continues today.
Most fundamentally of all, even if each individual decision was reasoned and justifiable on its own facts alone, every decision to detain is made inherently arbitrary when similar cases are treated differently. Every time an unauthorised migrant is detained, he or she was simply unlucky, it seems; after all, there were many other unauthorised migrants who could justifiably have been detained but were not. As we have seen, recent attempts to guess at the number of unauthorised migrants living in the United Kingdom today range between around 600,000 and 1.2 million.28 Decisions to detain and remove particular individuals within the group are therefore almost inevitably arbitrary. Worse still, the selective nature of the exercise allows for, and perhaps even encourages, discrimination and could perhaps explain the prevalence of certain nationalities and racialised groups in immigration detention. How is it fair that unlawful resident X is detained for removal because of his or her unlawful residence but unlawful resident Y is not?
As Hiroshi Motomura puts it in the context of the United States, ‘The letter of the law creates a large removable population, but whether an individual is actually targeted for removal has long depended on government discretion and bad luck.’29 The discretion exists at what Motomura describes as a macro level, deciding what resources to put into enforcement, how to deploy those resources and which categories of unlawful migrant to target. For example, how should resources be divided between policing the borders to prevent illegal entry and detecting existing unlawful residents? Is targeting certain nationalities the way forward in accordance with the level of co-operation provided by that country’s embassy staff, or should the focus be on targeting homeless migrants, or foreign criminals, or failed asylum seekers, or sham marriages, or conducting workplace raids, or dawn raids on families, or some other priority? Discretion also exists at a micro level, because even within these broad resourcing decisions, the power to detain must be exercised on specific individuals and there are many from whom to choose.
This gets to the heart of the problem with immigration detention: it is a policy aimed at managing broad groups, not simply a judicial measure targeted at a particular individual. In this context, singular decision-making is unimportant. What matters is that some, any unauthorised migrants are detained. What the justification might be in each specific case is ultimately of little import.
CHECKS AND BALANCES
As well as questionable judgements being made to detain migrants in the first place, the Home Office is often very reluctant to release detainees once that decision has been made. This is partly bureaucratic inertia and partly an institutional reluctance to admit error. Even in cases where it would be clear to any rational person that a mistake has been made, officials still search for excuses to maintain detention. One example, which lawyers like me will recognise as typical, was given in a joint report by the chief inspectors of prisons and borders and immigration. It was cited as an example of the poor assessment of the likelihood of removal: ‘Subject to the outcome of the appeal hearing of the further representation/new claim being refused and he becomes appeals rights exhausted, his removal can be made within a reasonable timescale when the Iraqi authorities resume referrals for agreeing removal on an EU letter.’30 As you will probably have detected, the assessment was nonsense. This particular detainee has already been detained for seventeen months and might be waiting weeks or months for an appeal at the immigration tribunal, after which there may well be further legal appeals. Even if the appeal had been dealt with quickly, the memo itself admitted that it was still impossible to remove the detainee to Iraq anyway, at least pending a further decision by the Iraqi authorities, which might never come. Removal could never rationally be described as imminent in this example, yet the officials proposed to carry on detaining the person anyway.
The checks and balances on the arbitrary power of detention are very weak, meaning this sort of poor decision-making goes unchallenged. The Home Office does review its own decisions at set intervals of at least once per month, and there is a hierarchy of decision-making, with more senior officials having to approve cases of long-term detention and decisions to release. However, these reviews are quite literally tick-box exercises, where the official checks off one of several standard reasons. Other material is routinely ‘cut and pasted’ from other cases or from previous reviews. The reviews are not independent and simply do not work.
Instead of waiting for a review, there is an option for a detainee to herself ask the Home Office for release. Unsurprisingly, this seldom works. It would be an admission, after all, that an incorrect decision had been made. To up the ante slightly, a detainee could ask a lawyer for help. There is a duty scheme run by the Legal Aid Agency for lawyers to visit detention centres; although there are concerns about the availability and quality of this advice, it is certainly better than nothing.31 The duty scheme does not extend to prisons, however, where at least several hundred people are held under immigration powers at any one time in a wide variety of jails across the country.32 Perhaps more fundamentally, legal aid was abolished for immigration cases in 2013, and the first contact some migrants have with a lawyer is after they are detained, at which point it may finally emerge that they have a good case for remaining in the UK. Only funding legal advice after detention is surely not a sensible policy, though.
Another option for detained individuals is that a bail application can be made to an immigration judge. The detainee can try to make the application herself or seek help. The process is not straightforward and even where detainees are aware that they can make such an application, in practice many are unable to do so without assistance. Around one-third of bail applications succeed, but too few such applications are ever made in the first place.33 A charity called Bail for Immigration Detainees does what it can to help and their experience is that just applying for bail in the first place will often cause the Home Office to release a detainee. This calls into question why the detainee was being held in the first place, why she was still being held until the point of her application and just how many others who do not apply for bail are simply left to rot for no good reason.
ATTEMPTS TO REFORM
The year 2015 marked a turning point in the number of people being detained. The numbers were going up and up at the time, and since then have been falling. The change of direction was brought about by what became known as the Shaw Report into the welfare of vulnerable immigration detainees.34 Conducted by Stephen Shaw, a former prisons and probation ombudsman, the report was commissioned by Theresa May when she was Home Secretary, following several cases, like that of MD, in which the courts found that detainees had been subjected to inhuman and degrading treatment. Amongst other things, Shaw found that the mechanism supposed to protect vulnerable detainees was
ineffective and that there was a culture of disbelief amongst healthcare staff. He recommended that there should be a ban on detaining pregnant women, an upper age limit for the detention of the elderly and a presumption against detention for vulnerable detainees including transsexuals, victims of rape and other sexual or gender-based violence, those suffering from PTSD and those with serious mental illness or learning disabilities. Finally, he concluded that Home Office policies on who was considered vulnerable and whether they should be detained should be re-written.
Most people reading these recommendations might well be surprised, or even horrified, that they needed to be made at all. What on earth was the Home Office doing detaining pregnant women, for example? Yet it certainly happens in practice; a report by HM inspector of prisons revealed that ninety-nine pregnant asylum seekers were detained in 2014. To make matters worse, 90 per cent of them were then released back into the community again, making their detention particularly cruel and pointless. When Mark Harper was minister of immigration in 2013, he gave some insight into the mentality governing this policy:
If we were to … have a blanket policy of not detaining [pregnant] women, first, having read many cases, I fear we would find quite a lot of people saying they were pregnant as another method of delaying their departure from the UK … I do not want this to be an excuse that women who are not pregnant dream up in order to throw a legal obstacle in the way.35
That the minister in charge of immigration can say out loud in Parliament that women might pretend to be pregnant in order to avoid detention tells us a great deal about the culture of cynical disbelief that prevails at the highest levels of the Home Office.