But despite this simplicity, hardly anyone seems to fully understand the proposals. Lawyers and activists around the country are transfixed by the catastrophe opening before their own client groups. A kind of numbness sets in – it is hard to find mental space to appreciate the simultaneous catastrophes elsewhere. We throw around disjointed words and phrases: ‘impunity’, ‘rule of law’, ‘the end of the British justice system’. Conversations always come round to ‘but surely they can’t do this?’

Except of course they can. Legislating to bar the unpopular, marginalised and vulnerable from the courts would cause an outcry. But quietly removing their access to legal aid has the same impact, for all the unpopular, marginalised and vulnerable who don’t happen to be rich.

So people charged with criminal offences will lose the right to choose their lawyer. Their duty solicitor could be from TescoLaw, or the private security company that runs the prison in which they will be held after they are advised to plead guilty. The field of prison law will effectively cease to exist – not just the preserve of prisoners complaining about their satellite TV, but of crucial questions of justice, particularly for vulnerable or disabled people, whose lives will be at the whim of prison governors.

Lawyers will no longer be paid for judicial reviews unless they are granted permission. Not just applications ruled to be without merit, but important claims with indisputable merit, will not be paid if they are refused permission. Perversely, even where the government backs down before the case comes to court, the lawyers who have successfully defended their clients’ rights will go unpaid. For a government that claims to understand the needs of business, this is astonishing. It is like not having to pay a taxi-driver if I miss my plane, or a hairdresser if my girlfriend disapproves of the results.

Given that lawyers invariably calculate the likelihood of permission in terms of percentages rather than certainties, it will mean that judicial reviews will largely not be brought. A convenient outcome for the government, whose actions are usually the object of the judicial reviews.

But the most unpopular, the most marginalised, are irregular migrants. If you aren’t legally resident (or an asylum-seeker), you won’t get legal aid for civil cases. Being not legally resident generally means that you will both have urgent need of a lawyer, and not have the money to pay for one. No matter – you are undeserving, and British justice will have no place for you.

The vast majority of people in immigration detention are not legally resident, by definition. They will no longer have legal aid to challenge their indefinite detention without time limit. The most unpopular and marginalised, foreign ex-offenders, frequently spend years in detention, with deportation impossible due to lack of travel documents or legal barriers to removals to their country of origin. Some will be able to represent themselves for bail hearings, although the success rates are far lower than for people with representation. None will be able to meaningfully challenge the lawfulness of their detention, a highly complex area of law which has generated a succession of scathing condemnations of the discredited department formerly known as the UK Border Agency.

For many indefinitely detained migrants, their lawyer is their only hope.

As if all this wasn’t enough, we also face the prospect of a new immigration bill, the latest stage of Theresa May’s crusade against Article 8 and the family rights of foreign ex-offenders. Article 8 is a limited right, which must be balanced against other factors. Even before last year’s abolition of legal aid for these cases, most people would lose, even if they had lived in the UK for most of their lives and had loving families whom they may never see again.

Spurred on by the tabloids, the new bill promises to address a problem that simply doesn’t exist: judges’ alleged refusal to balance the needs of immigration control and public protection against family rights. In practice, under the cover of forcing judges to do a proper balancing exercise, it aims to do the opposite. The legislation will impose on the courts the government’s interpretation of when family rights should take precedence. Which means almost never, of course.

The constitutional implications are alarming here, too. A key purpose of the courts is to oversee the actions of the government and prevent it from abusing our rights. The government is proposing to become judge in its own case by taking away this power of discretion. Even accepting the (wholly untrue) premise that our senior judges are making irrational decisions, this is a major change in the relationship between individuals and the state. Which other government departments will decide that the courts are an irritation whose oversight should be eliminated?

The government is selling these changes as populist assaults on the undeserving. But they amount to a charter for impunity. All branches of government, from the Home Office to local authorities, will know that bad or abusive decisions will go unchallenged, as long as their object is someone who is not wealthy.

Most of us don’t expect the government to abuse our rights any time soon. But if it happens, we may find that the protections we expected are gone. Everyone in society should be alarmed.

Please respond to the government’s consultation and oppose the proposals – you can use Detention Action’s version as a template.

This article first appeared on the Justice Gap

We are in a high security wing of Harmondsworth Immigration Removal Centre to run an advice workshop.  Often, we find people with urgent needs for advice and advocacy.  But today, almost everyone I see is on the Detained Fast Track, which means that there is little that we can do to help.

Irfan has been in detention for two weeks.  He went to Croydon to claim asylum, thinking it might take him all day.  He hasn’t been back to his brother’s house since.  He is still in shock at finding himself “in prison”.  He doesn’t know what is happening, as he hasn’t yet been allocated a solicitor.  He asks me what he should be doing to prepare, but I can’t advise him as I’m not a registered immigration advisor.

“That’s too bad” I say.  In my head, I can see exactly what is coming next: in a few days he will be woken in his cell, taken to an interview room, and introduced to someone who is his solicitor.  He will speak to them for about half an hour, then will be interviewed by a UK Border Agency official for his asylum claim.  He will likely be one of the 99% who are refused.  Probably, his solicitor will then tell him that they cannot help him with his appeal, because he doesn’t have a strong enough case.  He will make his appeal himself, alone before the court, in a language he only partially understands.  He will be refused.  In a few weeks, maybe in a couple of months, he will taken by force to a plane bound for his country of origin.

What he will face there, I have no idea.  But I know too well the quality of justice he will receive while he is in the UK.

“Thanks for coming, give us a call if we can help with anything”, I say as he leaves.

The Detained Fast Track is structured to prevent Irfan from preparing his asylum case properly, just as it is structured to prevent me or even his lawyer from being able to help him.  Only in a small minority of cases, with a good lawyer, written evidence, a sympathetic judge, are asylum-seekers able to prove their need for protection.

This is why Detention Action is challenging the lawfulness of the whole Fast Track process.  We believe that asylum-seekers who are a detained throughout the asylum process do not have access to justice.  So we are going to the High Court to argue that detaining asylum-seekers is unreasonable, disproportionate and fundamentally unfair.

It will be too late for Irfan, who today still waits in Harmondsworth for a decision on his appeal.  But if our legal challenge is successful, it may mean that many thousands of asylum-seekers in the future will have a very different experience of British justice.

Immigration detention is crudely effective. If the priority is to control migrants, it works – virtually no-one escapes from British detention centres these days. More importantly it works in symbolising, in reinforced concrete and razor wire, the government’s determination to enforce border security. For these reasons, its expansion in the UK has been inexorable: a record 28,909 migrants were detained in 2012, up 7% on last year.

Colnbrook Immigration Removal Centre Colnbrook Immigration Removal Centre

However, detention is far less successful at the complex business of actually managing migration. It is hardly a solution to immigration control, as detention spaces will always amount to a tiny fraction of the numbers of irregular migrants. It is also expensive and wasteful: recent research has found that £75 million per year is wasted on the unnecessary long-term detention of migrants who are ultimately released.

It is well-established how harmful detention is for migrants: in the last 18 months alone, for example, the Home Office has four times been found by the High Court to have committed inhuman or degrading treatment of mentally ill migrants in detention. Recognising the damage done by detention to children, the Government introduced a new Family Returns Process in 2011 to minimise the detention of children, without acknowledging that any of the same logic applies to adults.

If detention is a tool of war on irregular migration, then the damage on both sides is severe.  But is this war interminable and inevitable? Are the interests of irregular migrants always diametrically opposed to those of governments? Are there alternatives to brute enforcement?
What are ‘alternatives to detention’?

The notion of ‘alternatives to detention’ is gathering momentum around the world in a wide range of contexts. The UN Refugee Agency, UNHCR, has chosen it as one of its key campaign focuses for 2013. The International Detention Coalition has analysed and promoted innovative projects around the world that systematically reduce the use of detention, by managing and supporting migrants in the community. A growing body of ideas and experiences undermines the logic of detention and enforcement as presuppositions of immigration control. Could it open up possibilities of radically refiguring the management of immigration to meet the needs of governments and migrants themselves?

The idea of alternatives to detention is slippery, being many things to many people. In the UK, it has amounted to a couple of failed pilots, which have demonstrated conclusively that little is achieved by moving refused migrant families to different (unlocked) accommodation and telling them to go home. The Millbank and Glasgow pilots appeared to cause unnecessary distress to families whilst failing to meet the government’s objectives. For once, all sides were in agreement that they were failures.

But elsewhere, very different projects have had opposite results by testing out principles associated with ‘case management’. This approach was first developed in Sweden in the 1990s but has become the object of international attention since 2006 when the hitherto hard-line Australian government used it to move away from mandatory indefinite detention of all irregular migrants. It involves releasing migrants to community-based support, including legal advice, welfare support, housing, and time and space for them to consider all options for their future. It is the polar opposite of the British policy of detention and destitution for refused asylum-seekers. The results have been encouraging for all sides: many migrants have received visas to remain, but the majority who were refused have departed independently.

Such initiatives are proliferating. In the last few years, Belgium has ended the detention of families by housing them in ‘returns houses’, with on-site ‘coaches’ who address welfare needs and investigate and discuss all options, including returns options. Hong Kong has begun releasing vulnerable migrants, including torture survivors and asylum-seekers, to case management from a state-funded NGO. In the US, the Lutheran Immigration and Refugee Service is coordinating a nationwide project that gets migrants released into the support of local faith and community networks.

Nothing as imaginative has developed in the UK. Discussion of alternatives has largely been stymied by those dismal UKBA pilots, which seem to have turned both government and civil society off the whole concept. It is clear that models from abroad cannot simply be transposed to the UK. None are perfect; all bring considerable risks. However, given the UK’s current extensive and expanding use of detention, the question must be asked: is there any alternative to exploring alternatives?
What alternatives to detention exist in the UK?

In addition to those pilots formally styled as ‘alternatives to detention’, the UK operates a variety of processes that amount to forms of alternatives. These include release on bail or temporary admission, often to a designated address, with requirements to report regularly to a police station or immigration office. These alternatives hardly amount to solutions for migrants themselves. Research into bail hearings has repeatedly found that decisions are often arbitrary and based on no evidence.  And release itself – to temporary accommodation, a supermarket card to keep starvation at bay, and the ever-present prospect of a return to detention – amounts to no kind of life for the individuals ‘lucky’ enough to get it.

More fundamentally, these alternatives stay within the control and enforcement model that culminates in detention. They merely allow for modulation of the degree of coercion between different individuals. They can help individuals, but not facilitate a systemic shift away from detention – when someone is bailed, another migrant is detained to take his or her place. They amount to lighter touch enforcement, compulsions that stop short of detention. But they still assume that some, lesser, coercion is necessary. As a result, they are generally additions to detention, allowing coercion of more people, without reducing detention.
If not detention, then what?

If we are to cure this addiction to detention, we need to undermine the core assumptions that underlie it. We need evidence that non-coercive approaches can effectively meet government objectives. This requires addressing the grounds on which detention is justified. But it also means reframing the question so that the question of compliance with immigration control is asked alongside that of the needs and perspectives of migrants themselves. We need be able to answer the question – if not detention, then what?

The government’s main justifications for detention, which alternatives must address, are to prevent absconding and/or reoffending; and to ensure returns of migrants who are finally refused leave to remain in the UK. Detention certainly prevents any possibility of absconding, but it is by no means clear that migrants abscond otherwise. There is a lack of evidence on absconding rates of migrants released from detention, although limited government statistics and independent research have suggested that the rate is very low. Bail for Immigration Detainees has recently demonstrated that both UKBA and the courts persistently justify refusals of release by invoking risks of absconding or reoffending, on the basis of flawed and inadequate risk assessments. The lack of evidential basis for this risk-averse mindset is clear. But how to change it?

Likewise, there are no statistics on reoffending rates of foreign ex-offenders. Logic suggests that they will be lower for migrants who are released at the end of their sentence and receive probation supervision, alongside community support, than for those released after long-term detention, without supervision and support because their licence has expired. But, again, the evidence is lacking.
Community support in the UK

Detention decision-making often assumes that release is into a vacuum, partially and inadequately filled by limited coercion. For migrants without close family ties, the assumption is that the community is an unknowable blank, into which the migrant will likely disappear forever.

Detention Action’s Detention Action’s “Freed Voices” training programme

This is simply not the case in the UK. Providing structured support for people released from detention would not require expensive new services and accommodation to be developed out of nothing. Despite funding cuts and enormous practical challenges, British civil society still manages to provide an unparalleled range of services and support for refused asylum-seekers and migrants, from food parcels to befriending to legal advice. The extent to which people released from detention access these services depends on many factors, including location and their own ability to be proactive. But no-one currently knows in advance what services the person will access and how they will be supported. With additional funding, could some of these services become alternatives to detention, by guaranteeing structured support to people seeking their release? Could such ‘support plans’ help migrants convince the authorities to release them?

There are real opportunities here to prove that, in general, people released from detention to adequate support and advice don’t abscond and don’t commit crimes. At the moment, we do not have the evidence to make this argument. Only if such approaches are tested in the UK will we be able to demonstrate what works here.
The difficult question of returns

The second justification of detention, ensuring returns, is more difficult to address through alternatives. The poor quality of asylum and migration decision-making means that many refused asylum-seekers and migrants have genuine fears of return or powerful reasons to stay in the UK. There is a real danger of pushing vulnerable migrants into returns that would put them in danger or otherwise breach their rights.

However, that is not to say that assisted return can under no circumstances be discussed with refused migrants before we have a fully reformed system of decision-making. Better to call it ‘assisted’, not ‘voluntary’, return – return is not voluntary if you have been refused leave to stay. But some people can and do plan their own return, because they decide that it is the least bad option facing them. NGOs should not be in the business of promoting return to fearful migrants. But migrants should have the opportunity to make informed, considered decisions about their futures, as autonomous individuals. Refugee Action’s Choices programme has for many years provided a non-coercive space for migrants to consider assisted return. The international evidence suggests that many more migrants choose to return when they have welfare support, legal advice and the opportunity to carefully consider all their (limited) options – for example, in 2008, 82% of asylum-seekers returning from Sweden left independently. The UK’s opposite approach, enforced destitution, generates one of the lowest rates of assisted return in Europe.

Alternatives to detention should not be all about assisted return. Increased take-up of assisted return is an important selling-point for governments, but it must not drown out the need to get the right support for migrants going through the process.

This requires the active involvement of migrants themselves. Arguably, a weakness of existing models is the lack of input of migrants in designing and evaluating the projects, and in participating actively as they go through them. Governments assume that active community involvement is to be discouraged in migrants who need to return. But is this necessarily the case? Will migrants who have a role in community-based projects that are not just about returning them, be in a better position to make decisions and participate in the resolution of their cases? The logic of successful alternatives to date is towards increased focus on developing the skills, confidence and participation of migrants, so that they are active participants in the migration process, rather than objects or statistics.

The most powerful argument against detention would be an alternatives programme that emulates Australian case management, for example. That could persuade UKBA or the courts to release, or not detain in the first place, migrants onto a programme that achieves as high a rate of return as detention, at a fraction of the financial and human cost. If such evidence could be obtained, for example through small NGO pilots, as happened in Australia, it would not automatically change government policy. But it would give real impetus to a change of approach.
Engagement not enforcement

The implications of such a shift could be truly radical. Detention proliferates today because the government relies on enforcement to achieve its immigration control objectives, with half-hearted promotion of assisted return in a marginal role. The international evidence suggests that this is as misguided for governments as it is for migrants.

An immigration system based not on enforcement but rather on engagement with migrants as human beings, as participants in the system, would constitute a paradigm shift. Such an approach would not be an aberration: across the rest of society, from prisons to policing to schools, it is accepted that institutions can only function effectively with the consent of most of the people they work with, most of the time. The management of immigration is itself an institution – and it is ultimately preposterous to think that, within a liberal democracy, it can succeed on its own terms through enforcement alone.

Such a shift would also require a shift in the culture of decision-making. Some people in detention today are simply never going to agree to return, because they face extreme danger in countries like Somalia, Democratic Republic of Congo or Sri Lanka. Or because they have lived for most of their lives in the UK and are British in accent, family, education – everything but passport. Or because they could not return even if they wanted, since travel documents to countries like Iran, Palestine and Eritrea are effectively unobtainable. Immigration control based on engagement would need to take a fairer and more pragmatic approach to these migrants, who at present rarely return anyway despite coercion, instead languishing for years in detention before eventually being released.

Such a system is hard to imagine, because we are all accustomed to an adversarial immigration process, where asylum-seekers and migrants are either passive and confused objects of complex legal challenges, or actively campaigning and fighting against the system. But it need not be the case: alternatives to detention could form part of a wider shift in culture towards an inquisitorial system that aims to get decisions right, without reference to political agendas, and which works with migrants to resolve their cases.

The key principle needs to be the active participation of migrants. Immigration control will be dysfunctional as long as it persists in treating them as objects, unexpected deliveries that can be accepted or refused. Migrants themselves must be allowed to take the lead in asserting their own agency, in self-advocating for their rights and for structures that allow them to participate in the system.

Managing migration is increasingly seen as a key function of modern statehood. Pervasive anxieties around immigration mean that this will not change soon. The scale of global inequality and desire of people to migrate means that conflict with governments’ priorities is inevitable. But there is a significant area of potential common interest, in a fair system that works primarily by consent. The nature of migration management itself is not fixed and ahistorical, but a recent and shifting phenomenon. It can be induced to change, in ways that might just start to assuage the anxieties both of governments and the public, whilst reducing the harm that detention does to migrants. The challenge is formidable; there are no simple recipes for success, and any initiatives would bring substantial risks of failure or unforeseen consequences. However, a practical vision of immigration reform that sees migrants as people is the best chance we have for that change.

Of course, once a criminal sentence has been served, prolonged detention based on an alleged risk seems profoundly unjust.  But BID are surely right to look beyond this immediate injustice and seek to unpick the ways that the UKBA get it wrong on its own terms.  How is it that everyone seems to be high risk, requiring detention?

Adeline Trude patiently set out BID’s critique of an assessment that seems designed merely to justify detention.  Errors in case summaries; unevidenced assertions, accepted without question by the courts; assessments by the National Offender Management Service that are ignored and not produced to court; the list goes on.

But the chief draw was Richard Pearce of NOMS itself, a temporary visitor to the Wonderland of immigration control from the allegedly saner continent of criminal justice.  After requesting that we not ‘trend’ his comments, he launched into a complex, thoughtful and magnificently untrendable discussion of key questions of criminal risk.

It is not simply that NOMS risk assessments are for fixed periods, and cannot effectively measure risk over the extended and undefined periods of immigration detention.  He seemed to be alluding to a much more fundamental problem with the UKBA’s use of risk assessments.  In the usual course of their work, NOMS don’t really do risk assessments in their own right, he pointed out.  Risk assessments are just a part of an overall risk management plan, and as such are highly dynamic – if conditions change, then the risk will go up or down.  By implication, declaring a person “high” or “medium” risk is just a starting point, subjective and contingent.

Careful not to overreach his field of expertise, Mr Pearce did not say it, but this is not how the UKBA assesses risk.  Once they have located you on their “Harm Matrix”, there you stay, your risk level a permanent warning to any interfering immigration judge considering releasing you.  More importantly, no-one does anything to manage this risk, beyond keeping you detained.  It is as though incarceration is the only and endless answer to offending – as though the principles of probation, rehabilitation and risk management didn’t exist, in other words.

Not to mention all of the developing programmes around the world whereby governments manage refused migrants, working towards resolution of their cases without detention.

But Toomaj, a graduate of our “Freed Voices” self-advocacy training programme, brought the question back to its basic absurdity.  He told the story of how, before being eventually recognised as a refugee here, he was forced to travel to the UK on false documents and sentenced to prison for an immigration offence.  He was then detained on the basis that he was a danger to the public, going directly from flight to prison to detention.  “How could I be a danger to the public?” he asked.  “I’d never even met the public.”

The mess extends to most areas of decision-making on long-term detention. Failure to consider all factors before detaining, including where a person was a victim of trafficking. “Little effort” made to contact the National Offender Management Service to obtain information in assessing risks of reoffending. “Inconsistent adherence” to the legal principle that the removal of migrants must be possible within a reasonable period of detention.

Monthly reviews of detention missed, late or not apparently conducted. Or seemingly conducted merely “as a matter of bureaucratic procedure.” Failures to consider evidence of post-traumatic stress and mental disorder, despite scathing criticisms in four recent High Court rulings.

Serious enough failings in themselves. Yet the cumulative effect is disastrous. The Inspectorates conclude that “detention of ex-prisoners appeared to have become the norm rather than… a rigorously governed last resort.”
Only the barest of glimpses are given of the effects on human lives, yet they are powerful enough.

The 21 year old who had spent five months in prison and a further two years and three months in detention, despite wanting to return to his country of origin and the Home Office confirming that he was complying with the process. The Inspectorates drily note that “for such a young man, this was a significant amount of time to spend in detention.”

Or the man who is father of a British child, and has a British partner. Detained for 18 months, he worries about his family and the deteriorating behaviour of his child. But the UKBA detention reviews noted that “he has no close ties in the UK that could provide him with any incentive to remain in one place.”
Poor quality decision-making has such an impact because of the lack of effective oversight and safeguards. Between 19% and 38% of people detained over six months had never had their detention reviewed in the bail courts. (Potential inadequacies of the UKBA files meant that the Inspectorates could not give a more accurate figure.) A quarter had no legal representative.

The Inspectorates diagnose a “lack of a consistent overall strategic approach” to resolving long-term detained cases. In a third of cases, there was no travel document to allow removal, and no clear prospect of achieving one. Some people wanted to return but faced obstruction from the authorities in their country of origin; others themselves refused to comply with the re-documentation process; in other cases, the Inspectorate found it impossible to establish whether UKBA allegations of non-cooperation were grounded. In all cases, these migrants were simply left in detention.

In the face of this confusion and drift, the Inspectorates propose a radical solution: an independent panel to review all cases of long-term detention to consider whether “exceptional and clearly evidenced circumstances” apply that can justify continued incarceration.

Could such a panel bring the expertise and evidence-based analysis that the UKBA so clearly lacks? Could it circumvent the politicisation that has infected the decision-making of an agency under constant and fierce pressure from Ministers and the tabloids?

Ultimately only a time limit provides a sure safeguard against indefinite detention. Yet rigorous reviews by a genuinely independent panel could potentially be a significant step away from routine reliance on long-term detention. The Inspectorates’ report is a compelling and authoritative statement of the urgency of the need for change.

Organisations which work with people in immigration detention and people who have been detained signed onto a letter responding the The Guardian’s article.

Sir,

According to the law and the policy of the UK Border Agency, detention can only be used as a last resort. The Inspectorates highlight that this is not always the case and that the detention of ex-prisoners has become the norm.

We find that people are routinely detained for months and sometimes even years. People in detention compare it to mental torture because they do not know when they will be free. This is backed up by swathes of evidence that people’s physical and mental health deteriorates rapidly in detention.

Furthermore, the cost of holding people in detention for years when they cannot be deported means that millions of pounds of taxpayers’ money are wasted every year.

The UK is alone in Europe in detaining migrants for years without a time limit. There is a lack of legal representation and independent scrutiny over decisions to keep people in long-term detention. This creates unacceptable scope for bad decision-making by UKBA to lead to indefinite detention.

There is an urgent need for the government to introduce a time limit on immigration detention. Never again should a migrant be forgotten for nearly a decade in immigration detention.

Signed
Ruhul Anam, detained over 4 years
Bhavan Ravindra, detained over 1 year
SS, detained over 3.5 years
William Kpato, detained over 3 years
HH, detained over 3 years
TJ, detained 3 months

Toomaj Karimi, detained 18 months
Jerome Phelps, Detention Action
Ali McGinley, Association of Visitors to Immigration Detainees
Anna Beesley, Scottish Detainee Visitors
Bill Mckeith, Barbed Wire Britain
Bridget Walker, Quaker Asylum and Refugee Network
Cecilia Taylor-Camara, Catholic Trust for England and Wales
Clare Sambrook, Journalist & co-founder End Child Detention Now
Don Flynn, Migrants’ Rights Network
Dr Frank Arnold
Heather Jones, Yarl’s Wood Befrienders
Jacqui Stevenson, African Health Policy Network
Jock Morris, Glasgow Campaign to Welcome Refugees
Lisa Matthews, National Coalition of Anti-Deportation Campaigns
Liz Peretz, Campaign to Close Campsfield
Mary – Jane Burkett , Brighton Voices In Exile to the letter.
Nic Eadie, Gatwick Detainees Welfare Group
Nigel Caleb, Detention Advice Service
Pete Keenan, Kent Refugee Help
Phill Jones, The Trinity Centre

Today’s joint report of HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration finds serious problems in the long-term detention of migrants.

According to the law and the policy of the UK Border Agency, detention can only be used as a last resort, but the Inspectorates raised concerns that this is not always the case.  The Inspectorates conclude that “Detention of ex-prisoners appeared to have become the norm rather than as a rigorously governed last resort.”

The charity Detention Action which works with people in detention has evidence that nearly two thirds of people who are released after a year of being held in detention which wastes £75 million each year.

Jerome Phelps, Director of Detention Action, said “The UK is alone in Europe in detaining migrants for long periods without time limit.  This gives unacceptable scope for bad decision-making to lead to indefinite detention.  Today’s report is further evidence of a failing system. People in detention for long periods of time tell us it’s like mental torture because they do not know when they will be free. And there is evidence that physical and mental health deteriorates rapidly. There is an urgent need for a time limit on immigration detention in the UK.”

Nigel Caleb, Director of the charity Detention Advice Service, which provides independent immigration advice to foreign national prisoners and immigration detainees, said “We welcome the report’s scrutiny of a system that is, quite simply, not working. As the Inspectorates have highlighted, former prisoners are being detained for long periods after the completion of their sentence, even where those sentences are short. A time limit on immigration detention is clearly needed.”

Souleyman who was detained for over 3 years said “Indefinite detention is wrong.  Government wants people to give up and go home. And there’s nothing you can do. We are powerless and it is hard to survive in detention for a long time. It’s wasting money every day. It’s expensive.  Officers are doing their jobs, they are not enemies but the government is wasting money.  And then if you are locked up for so long you can take your case to the high court for unlawful detention. Then the government loses more money through compensation. This is millions of pounds that can be put somewhere else, like for the youth or to train people or rehabilitation.”

ENDS

For more information please call Kate Blagojevic at Detention Action on 020 7226 3114

For further information regarding the £75 million cost to the tax payer, please see the report which can be found here http://detentionaction.org.uk/new-research-on-financial-waste-of-long-term-detention

The joint report from the Inspectorates also found that detained migrants with mental health conditions “were not dealt with in the light of their individual circumstances or in accordance with UKBA’s stated policy.”  More than half of the migrants interviewed in detention had mental health problems, including post-traumatic stress disorder and suicidal tendencies.  A torture victim had been detained without clear indication of the exceptional circumstances that made detention necessary.

More surprising than the government’s hostility to judicial oversight is Cameron’s coyness in presenting the changes as a business-friendly assault on planning red-tape, when the reality is that over two thirds of judicial reviews are in immigration and asylum cases.  Refused migrants – who could be a better principal target for changes that will reduce everyone’s protection from bad government decision-making?

A clue to this presentational enigma lies in a report published just three days later by John Vine, the Chief Inspector of Borders and Immigration.  Vine’s scathing description of the UK Border Agency’s chaotic handling of the backlog of “legacy” asylum cases led even a Home Office spokesperson to describe the UKBA, unsupportively, as “a troubled organisation with a poor record of delivery.”  In this context, Cameron’s assumptions of good decision-making throughout government look rather shakier.

Who are these litigious migrants, causing such a strain to the justice system?  One of them is Jay.  I first spoke to him by telephone last year, when he was on the steps of a chartered aircraft that was being loaded up with Tamil asylum seekers for removal to Sri Lanka.  Jay sounded shaken.  We had both seen the well-documented reports of imprisonment and torture of Tamils forcibly returned to Sri Lanka.

But he had another reason for shock at his situation.  As he told me, in an East London accent, he has not been to Sri Lanka since he was five years old, 27 years ago.  Primary school, secondary school, and his whole adult life were spent in London.  His whole family have British passports.  Jay developed a drug habit, however, and committed a series of non-violent petty offences to feed his addiction.  After he finished his last sentence, he suddenly discovered that he was not British after all.

He felt that “the government is trying to rip me away from my home and my family.  My whole family were crying when they came to visit me on the night before I was supposed to leave. And I was so worried that my Gran would pass away and I wouldn’t be able to see her again. It was like a kidnap.”

The attempt to deport Jay was unlawful.  He had made a fresh claim and was still waiting for a response at the time that he was detained, so could not legally be deported.  His fresh claim had not been registered on the Home Office’s system – John Vine discovered 14,800 unopened recorded delivery letters during his inspection.

Jay was taken off the flight because his solicitor made a last minute judicial review and obtained an injunction preventing his deportation.   “It was all very dramatic, as I was being frog-marched up the stairs to the airplane a guy came running up waving a piece of paper.”

The stakes were even higher for another beneficiary of the judicial review system, “BA”.  He was detained last year for deportation, despite having developed a serious mental health condition while serving a prison sentence for a non-violent first offence.  The judgment of the High Court describes how “a cacophony of professional voices expressed the view… that he was unfit to be detained.”  BA’s mental health led him to stop taking fluids, and he came so close to death that the healthcare manager in the detention centre warned UKBA that an end of life care plan was being opened.

Nevertheless, the UKBA continued to maintain his detention.  Once again, it was a judicial review that secured his release after nine months in detention, and saved his life.  The High Court described “a deplorable failure, from the outset, by those responsible for BA’s detention to recognise the nature and extent of BA’s illness.”  The Court found BA’s detention to be not merely unlawful, but inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.

These stories are not exceptional.  My organisation, Detention Action, works every day with people whose liberty, whose hopes of avoiding deportation to potential torture, hang on the outcomes of judicial reviews.  Emergency judicial reviews, and the work of immigration lawyers in general, are easy to malign.  If we had a fair, impartial and transparent immigration system, they might not be so vital, and certainly would not be so well-used.  Yet they must remain an essential safeguard.  Migrants facing detention and removal are more directly exposed to the vagaries of government decision-making than anyone else.  They are unpopular, and the temptation will always exist to reduce their access to justice.  Yet the consequences for them of the government getting it wrong are catastrophic.

Today Jay is back at home with his family.  His fresh claim was successful in the courts, and his leave to remain in the UK has been restored.  But he is still upset at the emotional rollercoaster that he and his family went through.  “My dad had to scrape together £4,000 that they didn’t have to prove something that the Home Office already knew.  It was only because of judicial reviews in the fairest courts in the land that the flight was stopped.  If it wasn’t for a judicial review, I would be in Sri Lanka now.”

This article first appeared on The Justice Gap

Behind this dramatic effect is a shadowy figure at the back of the hall, who I can barely make out from my seat on the podium with the other speakers.  I know that it is just Simon, our volunteer, but for this evening, Simon is all-powerful.  Four minutes into each speech, he rises slowly, silhouetted by the lights at his back, and brandishes a large yellow card.  At five minutes, the card is red, and we duly depart.  Simon tells us later that he is considering adapting this technique for use in his daily life.

The one speaker who cheerfully ignores the time limit is William.  But no-one minds.  William is a graduate of our “Freed Voices” training programme for potential campaigners to speak about their experiences of detention.  He begins by announcing a minute’s silence for those who have died in detention, and already I am nervously looking at my watch.  But it is a symbolic rather than chronological minute, and soon he is holding the room spellbound with the story of his terrible experiences in the Liberian civil war and British immigration detention.  I saw him speak, awkwardly and hurriedly, a couple of months ago at the start of the training programme, but now he is transformed.  “Will you be torch-bearers for this campaign?” he demands of the hall, an evangelical preacher absolutely sure of his congregation, and receives emphatic assent.  We’ll all do whatever he tells us, to be honest, such is his charisma.  I’m glad I’m not on next.

AGMs are disproportionately stressful.  No-one gets detained or deported if it goes badly, yet the question of the catering can nevertheless assume existential proportions.  Will anyone come, if the torrential rain continues?  Did we order enough wine?  Will the annual reports arrive in time?  (Fifteen minutes to spare this time, after the couriers took two and a half hours to travel a distance that can be walked in twenty minutes.)

I am in that state of concentrated distractedness that comes with being the final speaker, as well as the awareness of all of these things that can go wrong.  So it only gradually dawns on me that the evening is a success.  Our team of purple-t-shirted volunteers are running an impeccably tight ship.  And our foolhardy gamble on the eight speakers is working.  Eight diverse, and brief, perspectives from around the detention sector suddenly seem to add up to where we are now – the beginnings of a movement to roll back the growth of detention.  They are passionate, not always consistent, yet mutually complementary.  There is belief in the room.

Remarkably, even the post-speeches discussion is focused, strategic.  Someone identifies themselves as one of the wider public “ignorant” of detention, who I have mentioned in my speech (oh dear…), and asks what our positive proposals are.  The simplest, and most difficult, question.  We all have more thinking and strategising to do, if we are to give completely convincing answers.  But tonight it seems that we are on the right track.

 
William’s message has been taken to heart by Detention Action over the last year, and we have spent much of our time knocking on the doors of politicians, journalists, students and other NGOS who don’t traditionally work on detention, to try and garner their support for the campaign to challenge the use of detention in the UK.

We have spent a significant amount of time this year working on our strategy to achieve the change that we want to see in terms of not just changing detention, but also challenging its growth and ultimately its very existence.

We are seeking to challenge detention with three key arguments:

Detention doesn’t work for people
People who are in detention tell us it is like ‘mental torture’. We know that not knowing when you will be released from a high security centres, having limited access to justice, crushes the spirit, worsens mental and physical health problems, and removes any sense of dignity and individual freedom. The UK decided not to detain terrorist suspects for 42 days.  Yet hundreds of migrants and asylum-seekers have been detained for periods of up to five years.  At the end of last year, 142 people had been detained for over a year. For people who care about civil liberties, detention is not the answer, whether for 42 days or for 4 years.

Detention doesn’t work for the taxpayer
Detention is expensive.  It costs the taxpayer £47,000 per year to detain one person. Recent research has found that £75 million per year is wasted in this way. Most people who are detained for over a year are released and so their detention has served no purpose – other than to destroy their lives and the lives of their families. In other countries, people’s cases are resolved in the community. This is fairer but it is also cheaper.

Detention doesn’t work for the government
The government says that people must be detained to protect the public and to make deportation easier. But the argument is flawed because people are released without any support, minimal finances and sometimes completely destitute. Other countries have fairer, cheaper and more effective alternatives to resolve people’s cases in the community, because they recognise that detention doesn’t work.

And we will continue to work hard to ensure that the message of detention doesn’t work for anyone gets through to everyone.