Law and the ‘illegals’: reforming UK immigration detention

Immigration DetentionThe UK has the largest immigration detention estate in Europe, with approximately 30,000 individuals being detained under immigration powers over the course of the last year. The vast majority of detainees are held in Immigration Removal Centres (IRCs), however detainees can be held in a number of different locations including prisons, and even less satisfactorily, police cells. The UK is the only EU country to also not impose an upper time limit on the use of immigration detention. This article considers a number of policy areas relating to immigration detention which have come under heavy scrutiny and may identify potential opportunities for reform.

Indefinite Detention

The UK is unique within Europe in that no upper time limit is set for the period that an individual may be detained under the Immigration Acts.  As of March 2015, of the 30,313 who were released from detention during the course of the year, 152 had been detained between 12-24 months, and 26 persons had been detained for more than 24 months.  Of those who had been detained for more than 12 months, only 38% were removed with the remainder being granted bail or temporary admission.

The manner in which it is determined whether detention should continue is by reference to what are known as the “Hardial Singh principles”. These principles are in summary:

  • The Secretary of State must be detaining for the statutory purpose intended by the Immigration Acts (in most cases removal)
  • The detainee 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 removal 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

Where the Secretary of State continues to detain an individual despite their detention not being compliant with the above principles, then that person’s detention will be unlawful and they will be entitled to release and compensation. However, the exercise of determining at which point an individual’s detention crosses over into “unreasonableness” is a very difficult one.

The lack of certainty in this area means that it is often necessary for detainees to resort to court litigation in order to determine the legality or otherwise of their detention. The sums of compensation paid as a result are not insignificant, and show that the precise limits of the powers of detention are not always easily identified by the Secretary of State. In 2011-12 a sum of £4,461,344.28 was paid out as compensation for those unlawfully detained, which rose in 2012-13 to a sum of £5,017,971.63. The cost of unlawfully holding detainees is therefore considerable and indicative that the Secretary of State struggles to consistently apply a lawful immigration detention policy.

As well as a policy of indefinite time limits on detention being difficult to enforce lawfully, many commentators have identified other negative impacts of indefinite detention. One of the negative impacts of the “unknown” period which a detainee will be held for is the impact on their mental health. Studies have demonstrated that detention, particularly periods of more than 6 months, have a dramatic impact on the incidence of depression and Post Traumatic Stress Disorder amongst detainees. The numbers of those attempting suicide in the immigration estate rose by 19% in the first quarter of 2015 compared to the previous year, and in Harmondsworth Immigration Removal Centre alone there were 70 suicide attempts between January-March 2015. This can have a negative impact on the security of IRCs – for staff as well as for detainees.

Following a thorough investigation into the use of immigration detention, a joint inquiry by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration concluded that a maximum time limit of 28 days should be imposed on the length of anyone held in immigration detention, as well as a number of other recommendations, noting the huge cost to the tax payer of current practice and procedures. Such an approach would undoubtedly require a dramatic overhaul of the current processes and procedures, including a wholescale reform of the approach to enforcement action, but a careful review of current government policy is needed to avoid unnecessary suffering to those being detained, and unnecessary use of public resources where detention is being used, rather than more suitable alternatives.

Detention in the context of deportation cases

Those who are subject to the longest periods of detention will most commonly be held in the context of deportation matters. A person will generally be subject to deportation action by the Secretary of State in the following scenarios:

  • Receiving a custodial sentence of more than 12 months for a single offence, or for more than 12 months for a combination of offences over the past five years in non-European Economic Area (“EEA”) cases
  • Receiving a custodial sentence of more than 24 months in EEA cases (unless the case involves drugs, sex or violence in which case a lesser 12 month threshold applies)

Whilst a presumption in favour of release applies to those facing deportation – as it does for all immigration detainees – the balance will in the vast majority of cases fall in favour of the detention of a person who is subject to deportation, due to the increased weight placed upon the need to protect the public from harm where an individual is assessed as posing a threat. Those who have served custodial sentences will most commonly be detained under immigration powers within the prison estate (those held in prisons account for approximately 10% of all immigration detainees).

There are additional powers of detention for those who are subject to deportation action. Historically there has been a power to detain an individual under the Immigration Act 1971 where a person has been recommended for deportation by a criminal court or where a decision to deport a person has been taken. However, the UK Borders Act 2007 introduced two new powers of detention:

  • While the Secretary of State considers whether to deport a person
  • Where the Secretary of State thinks a person should be deported, pending the making of a deportation order

The effect of these new provisions is that it renders lawful the power to detain a potential deportee at the end of their custodial sentence whilst the Secretary of State considers whether it is appropriate to deport an individual or not. This greatly extends the scenarios in which the Secretary of State can detain an individual. Whilst historically any detention following the end of a custodial sentence was unlawful unless a decision to deport had already been taken, the Secretary of State will now frequently take a number of months following the end of a detainee’s custodial sentence before making a decision, even though there is no good legal reason why such action could not be taken shortly prior to the expiry of the custodial sentence.

The Joint Inquiry Report into the use of Immigration Detention noted that the Secretary of State’s approach in such cases was failing and resulting in delays in the removal of those who could be at the end of custodial sentences.

The imposition of a time limit in such cases, for the Secretary of State to limit the period over which she considers whether to deport a person or not, should be introduced to prevent the arbitrary and unnecessary extension of periods of detention that a deportee faces, and to create an impetus for the Secretary of State to exercise her wide ranging powers of detention reasonably and effectively.

Detention in the context of asylum cases

Detained Fast Track

Detention in asylum cases has recently undergone important changes, particularly in relation to the Detention Fast Track process. Under Detained Fast Track (“DFT”), those who sought asylum in the UK were interviewed by Home Office officials and their case was referred to the National Asylum Allocation Unit to determine whether a case could be fast-tracked.

If an individual’s asylum claim was to be fast tracked, the individual would continue to be detained and their case would be accelerated – usually taking around 2 weeks for a final decision. DFT processes did not apply to children or to those who provided independent evidence of trafficking, torture or requiring significant care.

This led to individual’s claims being considered very quickly in the context of the complexity of an asylum case. Although a legal representative was appointed, they would have very little time to provide a statement, translate documents, obtain medical evidence and generally run the case. The vast majority of initial decisions were refusals under the DFT process and individuals had very limited time in which to appeal a decision.

On 2 July 2015, the Immigration Minister, James Brokenshire, confirmed that the UK Government was temporarily suspending the DFT process. This followed court rulings in which it was held that the process was being operated unlawfully. These cases were brought by Detention Action, and it was found in the High Court – Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors [2015] EWHC 1689 (Admin) – that the DFT process was unlawful. In that decision, Mr Justice Nicol stated at paragraph 58:

“In my judgment the FTR do incorporate structural unfairness. They put the Appellant at a serious procedural disadvantage.”

It was noted that the very tight timescale of appeals was structurally unfair. However, the High Court granted the Home Office a temporary delay on the effect of the judgement. This delay was subsequently overturned by the Court of Appeal, and the unlawfulness of the DFT was confirmed, under similar reasons to the High Court. This led to the UK Government confirming the suspension of the DFT process, although the Ministry of Justice confirmed they were seeking further permission to appeal.

The UK Government stated that every individual who was detained under the DFT process and continued to be detained at that time would have their detention reviewed. They have provided interim instructions on how the review is to be undertaken and steps to be taken by officials. If the only reason for detention of the individual was based on the DFT process, they were expected to be released to continue their asylum claim under the normal asylum process. However, if there were other reasons for detention such as risk of absconding, a threat to security, those who face removal to a designated safe country or third country cases, their detention would be expected to continue.

Despite the suspension, the Immigration Minister further stated that

“The Government is committed to the underlying principles of the Detained Fast Track (DFT) and believes that for the most part it is operating well and is removing back to their own countries those whose asylum claims are clearly unfounded. But we must be satisfied that our safeguards for dealing with vulnerable applicants throughout the system are working well enough to minimise any risk of unfairness – as we have always striven to do…

…It is vital that our asylum policy ensures that safe haven is provided to refugees and that our systems are fair and offer good value to the tax payer. It is also important that if a case can be determined quickly, it should be so determined, and that no immigration advantage can be obtained by making a spurious or opportunistic claim. That is why the Government remains committed to the principles of a detained fast track system and will re-introduce one as soon as we are satisfied the right structures are in place to ensure it operates as it is supposed to.”

It is likely that there will be further debate leading up to the introduction of the reformed version of the process and future challenges if the reformed process does not fix the issues which led it to be held to be structurally unfair and unlawful.

Detention for other reasons

The United Nations High Commissioner for Refugees’ (“UNHCR”) own guidelines on the criteria and standards relating to the detention of asylum seekers state that, in light of the hardship and effects noted above as well as international laws and standards for refugees, the detention of those seeking asylum should normally be avoided and be a measure of last resort. They further note that there is no evidence that detention has any deterrent effect on irregular migration. The Home Office’s policy on detention states that there is a presumption of temporary admission or alternatives to detention, and detention is normally appropriate in to the following circumstances:

  • to effect removal;
  • initially to establish a person’s identity or basis of claim; and
  • where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release.

As noted earlier in the article, the lack of certainty in the area and policy can lead to potentially harmful results. A failure to comply with any conditions which could include living at a certain address, working without permission, or failing to attend a reporting event, can therefore lead to that person being detained under Home Office policy. Considering the financial resources available to those seeking asylum, lack of permanent accommodation and the complexity of the asylum system, it is entirely foreseeable that conditions could be breached.

Another area where detention can create an issue is if a person has entered the UK and has previously been fingerprinted or considered to have claimed asylum in another European country. The Dublin Regulations set out which EU country is responsible for examining an asylum application and establishes that only one EU country is responsible for examining an asylum application. The UK may then seek to argue that the individual should be removed to the safe European country.

There has been ongoing litigation in the UK on behalf of individuals who have been fingerprinted/noted as having claimed asylum in Italy, and whom the Government have been seeking to deport to Italy. Whether they can be removed has been challenged, with the focus on whether returning the individual to Italy would breach his or her human rights. A reason for a breach could be a result of systemic deficiency in the asylum system there, with limited success thus far. However, in the case of Greece, it has been held in the European Courts that its asylum system is in such a state of systemic deficiency that it would breach an individual’s human rights to return them to the country.

Such uncertainty over third country issues can lead to detention while said issues are resolved, particularly if it is in order to effect removal or if there is reason to believe the individual will abscond, or fail to comply with conditions. The lack of a cohesive asylum system throughout Europe does create problems within individual asylum systems in Europe, particularly in relation to detention and removals. Further reform and agreements are desirable to limit the issues raised as a result of the lack of a cohesive system and variable treatment throughout Europe.

By Mark Lilley-Tams and Stewart MacLachlan of Paragon Law


Leave a Reply

Your email address will not be published. Required fields are marked *