POINT OF NO RETURN FACTSHEET: THE FUTILE THE DETENTION OF MIGRANTS UNRETURNABLE IN THE MIGRANTS UK 1 FACTSHEET THE DETENTION OF MIGRANTS IN THE UK Legal and practical framework Asylum-seekers can be held in immigration detention under powers contained in the 1971 Immigration Act. Immigration officers within the Home Office have the power to detain migrants subject to immigration control. The circumstances under which detention is or is not lawful have since been framed in a large body of case law. There is no automatic judicial oversight of detention. Migrants in detention have the right to apply for bail to the First Tier Tribunal of the Immigration and Asylum Chamber. The Tribunal considers whether detention is reasonable, but does not consider questions of lawfulness. Bail hearings must be arranged within a few days of application. Migrants can also apply to the High Court for a ruling that their detention is unlawful, a complex process that can take many months. Lack of a time limit The UK has no time limit on immigration detention, as it has not signed up to the EU Return Directive. According to the policy of the Home Office, detention can be used where there is a realistic prospect of removal within a reasonable period. 1 The Home Office policy states, detention must be used sparingly, and for the shortest possible period necessary. 2 The policy gives significant leeway to immigration officers to decide where and for how long detention is appropriate. However, the 1971 Act and subsequent case law set out limitations on the power to detain. The Hardial Singh principles 3 constitute the accepted common law limitations on the power of detention. These principles require that the Home Office a) intend to deport the person and use detention only for that purpose; b) only detain for a reasonable period; c) not use detention if it becomes clear before the expiry of a reasonable period that deportation will not be possible within the reasonable period; d) act with reasonable diligence to effect removal. The courts have repeatedly found cases of long-term detention to have breached the Hardial Singh principles and become unlawful. For example, in the case of Sino, the High Court found that an Algerian asylum-seeker with a psychological disorder and a history of minor offending had been detained unlawfully for the entirety of his four years and eleven months in immigration detention. 4 This is thought to be the longest ever period of unlawful immigration detention in the UK. The court found that there was at no point any prospect of his deportation becoming possible within a reasonable period, so there was never a power to detain him. Efforts to obtain a travel document had been unsuccessful for three years prior to Mr Sino s detention, so it should have been clear at the outset that further efforts would prove unsuccessful. 1 Home Office, Enforcement Instructions and Guidance, 55.2 2 ibid., 55.1.3 3 R v Governor of Durham Prison ex p. Hardial Singh [1984] 1 WLR 704 4 Sino, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) (25 August 2011)
2 FACTSHEET: THE DETENTION OF MIGRANTS IN THE UK Detention Action Harmondsworth Immigration Removal Centre, UK. Migrants are frequently deprived of their liberty for periods of years. According to the latest government statistics, of the total of 3,142 people in detention centres on 30 June 2013, 233 people (7%) had been detained for over six months. 5 However, these statistics do not reflect the true scale of detention in the UK. Migrants whom the Home Office elects to detain in prisons rather than Immigration Removal Centres are arbitrarily excluded from the statistics. 6 On 9 September 2013, 979 migrants were detained in prisons. 7 Their legal status is no different from that of migrants detained in Immigration Removal Centres, so there is no coherent justification for their exclusion from the statistics, which prevents scrutiny of the true extent of immigration detention. Migrants detained in prisons are usually ex-offenders, and experience the longest periods of detention: for example, the HM Inspector of Prisons recently discovered a migrant detained for nine years in HMP Lincoln 8. Detained Fast Track The UK detains asylum-seekers on the Detained Fast Track asylum process (DFT), in order to process their asylum claims quickly. Asylum-seekers on the DFT are detained throughout the asylum process. Men are usually held in Harmondsworth Immigration Removal Centre (IRC) and women at Yarl s Wood IRC. Their claims are processed according to accelerated timescales. Asylum-seekers from any country, including Iran, Afghanistan and Uganda, can be detained in this way. In 2011, 2,118 people were put into the DFT. 9 The DFT is intended for straightforward asylum claims. However, effectively screening out vulnerable people with complex cases is impossible, as the decision to detain an asylum-seeker is 5 UKBA, Detention Data Tables Immigration Statistics April June 2013, table dt.09.q, available at https://www.gov.uk/government/ publications/immigration-statistics-april-to-june-2013/immigration-statistics-april-to-june-2013#detention-2 6 ibid, Vol 2, Notes 7 Harper, Mark, Minister for Immigration, reply to Parliamentary Question, 8 October 2013, http://www.theyworkforyou.com/ wrans/?id=2013-11-05a.169599.h&s=speaker%3a11350#g169599.q0 8 HM Chief Inspector of Prisons, Report on a full unannounced inspection of HMP Lincoln, 20-24 August 2012 9 Data tables Immigration Statistics July-September 2012 Volume 4 http://www.homeoffice.gov.uk/publications/scienceresearch-statistics/research-statistics/immigration-asylum-research/immigration-tabs-q3-2012/
FACTSHEET: THE DETENTION OF MIGRANTS IN THE UK 3 taken before any detailed questions are asked about the nature of their claim. Home Office guidance contains a presumption that the majority of asylum applications are suitable for the DFT, unless there is evidence to suggest otherwise. 10 Significant numbers of torture survivors and mentally disordered people go onto the DFT. 11 A DFT process for women operates in Yarl s Wood IRC, despite the complexities and the obstacles to early disclosure associated with the high prevalence of histories of rape and sexual violence. 12 The selection of cases for the Detained Fast Track risks appearing arbitrary, yet in Harmondsworth 99% of claims are refused by the Home Office. 13 When their cases are refused, asylum-seekers have just two days in which to appeal. In 2012, 59% asylum-seekers in Harmondsworth were unrepresented at the first appeal. Only 1% of these won their appeals, compared to 20% of those with a representative. 14 Detention centres in the UK The UK operates ten IRCs, with a total capacity of 3,219. 15 In addition, three residential shortterm holding facilities and one pre-departure accommodation for families with children bring the total to 3,397. Official statistics recorded 3,142 migrants in detention on 30 June 2013, and 979 more were held in prisons on 9 September 2013, making a notional total of over 4,100. People entering, leaving and in detention at year end, solely under Immigration Act powers: 16 Year Entering detention Leaving detention In detention 2010 25,904 25,959 2,525 2011 27,089 27,181 2,419 2012 28,909 28,538 2,685 Change: latest year 1,820 1,357 266 Percentage change 7% 5% 11% Brook House, Colnbrook and Harmondsworth IRCs, three of the largest centres in the UK, have security levels equivalent to those of high security prisons. Most recently, in summer 2011, five new high security wings opened at Harmondsworth IRC, making it the largest detention centre in Europe, with 623 places. The Harmondsworth Independent Monitoring Board, which reports to the Home Secretary, has found it shocking that brand new facilities have been built that are ill-suited to their intended purpose and that offer lower standards of decency than the facilities they replace. 17 A further IRC, The Verne, is due to open in early 2014, its 600 beds making it the second largest immigration detention centre in Europe. It is a former prison located in Dorset, far from any major cities. 10 Home Office, DFT and DNSA - Intake Selection (AIU Instruction), 2.2 11 Medical Foundation for the Care of the Victims of Torture (now Freedom from Torture), quoted in Detention Action, Fast Track to Despair, May 2010, p31 12 Bail for Immigration Detainees, Refusal Factory: Women s experiences of the Detained Fast Track asylum process at Yarl s Wood Immigration Removal Centre, 2007, p19-20 13 Home Office, Freedom of Information Act response, 3/2/11 14 January-September 2012, statistics from FOI requests by Detention Action, FOI/76942 and FOI/80225 15 Association of Visitors to Immigration Detainees, Immigration Detention in the UK: Residential Detention Spaces, 2012, http:// www.aviddetention.org.uk/images/uk%20residential%20spaces%20feb%202012.pdf 16 Home Office, Immigration Statistics October December 2012, Ch.15, https://www.gov.uk/government/publications/ immigration-statistics-october-to-december-2012/immigration-statistics-october-to-december-2012#detention-1 17 Independent Monitoring Board for Harmondsworth Immigration Removal Centre, 2009 Annual Report, 2010, pp 6 9
4 FACTSHEET: THE DETENTION OF MIGRANTS IN THE UK Detention Action The security fence at a UK Immigration Removal Centre. Facilities Migrants in detention are accommodated in small cells (usually shared by two or, occasionally, three people) or dormitories. In some centres cell doors are locked at night. The extent of freedom of movement between the wings and facilities varies from centre to centre. All centres have healthcare facilities, while a minority has on-site in-patient healthcare beds. Some centres have visiting counsellors and psychiatric support. All centres have facilities including education facilities, gyms, and interfaith prayer rooms. Access to justice Migrants in detention can access legally aided free legal advice and representation, subject to their financial resources and the merits of their cases. Unlike migrants and asylum-seekers in the community, they do not have the right to choose their representative. They can request an appointment with a duty solicitor attending the legal surgeries in each centre. Between one and three legal surgeries are held in each centre each week, by firms of solicitors contracted by the Home Office. Asylum-seekers on the Detained Fast Track are allocated a duty representative directly by the Home Office. All migrants also have the choice of paying for representation if they are able. Migrants can challenge their detention by applying to the courts for bail. Legal aid is usually available for solicitors to represent them in these applications. Unrepresented migrants can sometimes find representation from pro bono advice projects. The quality of bail hearings has been severely criticised by NGOs. 18 Some people in detention can also access legal aid to pursue their immigration or asylum claims, subject to means and merits tests. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removes access to legal aid for migrants appealing against deportation on grounds other than asylum or Articles 2 or 3. As a result, migrants appealing on grounds of their Article 8 rights to a family life do not have access to legal aid. 18 For example Bail for Immigration Detainees, The Liberty Deficit: long-term detention and bail decision-making, (2012); Campaign to Close Campsfield, Still a Travesty: Justice in immigration bail hearings, (2013).
FACTSHEET: THE DETENTION OF MIGRANTS IN THE UK 5 The profile of detained people A wide range of nationalities is represented in detention centres. Of people leaving detention in 2012, the most common nationalities were: People leaving detention in 2012: Nationality Numbers in detention Proportion of total in detention Pakistan 4,114 14% India 3,756 13% Bangladesh 1,967 7% Nigeria 1,922 7% Afghanistan 1,386 5% China 1,238 4% 85% of detained migrants were male, and 15% female. 226 children were detained, less than 1% of the total. The UK regularly detains asylum-seekers with serious mental health issues. Until recently, the policy guidance stated that migrants suffering from serious mental illness should normally only be detained in very exceptional circumstances. However, in 2011 the guidance was amended to the effect that migrants are unsuitable for detention only where they have a serious mental illness that cannot be satisfactorily managed in detention. 19 The High Court found in April 2012 that these changes were unlawful; the Home Office recently confirmed that it will not appeal. 20 Nevertheless, the Home Office continues to fail to conduct an equality impact assessment, as pledged in the course of the litigation. Over the last two years, the High Court has on four occasions found that the prolonged detention of mentally disordered detainees amounted to breaches of Article 3 of the European Convention on Human Rights. 21 19 Home Office, Enforcement Instructions and Guidance, Chapter 55, 55.10. 20 HA, R (on the application of) v Secretary of State for the Home Department, [2012] EWHC 979 (Admin), 17 April 2012 21 For example in BA, R (on the application of) v Secretary of State for the Home Department, [2011] EWHC 2748 (Admin), 26 October 2011 This factsheet is published as a supplement to the report Point of no Return: the futile detention of unreturnable migrants and can be downloaded at www.pointofnoreturn.eu It is a result of a collaboration between Flemish Refugee Action (Belgium), Detention Action (UK), France terre d asile (France), Menedék Hungarian Association for Migrants, and The European Council on Refugees and Exiles (ECRE). Editor: Els Keytsman, Kruidtuinstraat 75, 1210 Brussels. Vluchtelingenwerk Vlaanderen vzw (Flemish Refugee Action) Design: Louis Mackay/ www.louismackaydesign.co.uk Published: January 2014 Supported by the European Programme for integration and and Migration (EPIM), a collaborative initiative of the Network of European Foundations (NEF). Disclaimer: the sole responsibility for the content lies with the authors. The content may not necessarily reflect the positions of NEF, EPIM or the Partner Foundations.