Kirsten Heaven, barrister at Garden Court Chambers, writes about the deaths of foreign nationals in custody and the critical verdict in the recent inquest into the self-inflicted death of a young Darfuri in HMP Chelmsford.
The existence of foreign national prisoners (FNPs) languishing in British jails and being released without consideration of deportation was brought to public attention in May 2006. In July 2006 Her Majesty’s Chief Inspector of Prisons (HMCIP), Anne Owers, published a report highlighting the dramatic rise of foreign nationals in prison over the preceding ten years (up to 10,000 in April 2006). The aim of the report was to highlight the refusal by the Prison Service and National Offender Management Service (NOMS) to implement national standards for the conditions and treatment of this specific group of prisoners and the failure by the Immigration and Nationality Directorate to give co-ordinated attention to this group. However, in the media storm that followed these concerns were missed by the government. A rapid and ill thought-out response led to the creation of a blanket secret policy on deportation and indiscriminate rounding up and incarceration of foreign nationals, some of whom had been living in the UK for over a decade with convictions for minor criminal offences.
The government’s actions during this period have been challenged and scrutinised by the High Court and more recently the Court of Appeal (case of WL (Congo) 1&2), however, there is a hidden and tragic consequence arising from the government’s reaction in 2006 that has received insufficient attention. In 2008 in response to a parliamentary question by the leading charity INQUEST, which campaigns on behalf of the relatives of those who die in state custody, it was disclosed that the rate of suicides amongst FNPs (not including those from the EEA) rose to eighteen in 2007, from a yearly average of 3-4 in the preceding years of 1999-2006 (down to eight in 2008).
From 25 May to 1 June 2010 a jury sitting in Chelmsford Coroner’s Court gained a rare insight into the reasons behind one of these self-inflicted deaths. This was during the inquest into the death of Abdullah Hagar Idris, aka Joker, an unaccompanied asylum seeking child from Darfur, who arrived in the UK in 2005 and who took his own life on Christmas Day 2007 in custody in HMP Chelmsford (after making a ligature from a bed sheet). For a week the jury heard damning evidence of numerous systematic and individual failures by state bodies, principally including HMP Chelmsford and Essex Social Services (ESS), in the way Joker was treated and cared for both before and after entering prison.
When Joker arrived in the UK he stated he was fifteen but this was disputed by ESS who conducted a cursory age assessment finding Joker to be seventeen (Joker was not legally represented). ESS then failed to conduct a needs assessment as required under the Children Act 1989 and connected statutory guidance, and instead made an unlawful decision to support Joker under a section of the Children Act 1989 (s.17) which did not allow support to continue beyond the age of 18. Had the correct section been used (s.20) ESS would have been obliged to provide Joker with care and support and a personal adviser/advocate up to the age of 21. The approach taken by ESS in 2007 is one frequently taken by local authorities trying to save money and has been subjected to numerous legal challenges in the High Court. Despite this the practice is still known to occur with unaccompanied asylum seeking children.
In Joker’s case a combination of mental health problems and serious self-harming led him to commit a minor criminal offence resulting in him being placed on remand in custody. At no stage was Joker subject to a mental health assessment – something recommended by the probation service and on his arrival at prison. Joker was then abandoned in prison for six months receiving no visitors, no letters, no money and absolutely no support from anyone bar a cousin from Darfur whom he spoke to on a few occasions. Joker was subjected to repeated bullying and assaults by fellow inmates and consequent punishment and segregation by prison governors (who did not view Joker as a vulnerable young person). The prison failed to allocate Joker a personal officer. ESS closed their file shortly after Joker’s eighteenth birthday.
A few weeks before Christmas the Border and Immigration Agency (now UKBA) began proceedings to deport Joker. No attempt was made by UKBA to contact ESS or Joker’s immigration solicitor (despite UKBA having knowledge of their prior involvement). Joker was served a deportation notice on Christmas Eve shortly before lock-up by a prison officer with no training on FNP issues (the prison’s specialist FNP co-ordinator was working his last day and wanted to go home and so asked the officer to deliver the deportation documents). Joker did not understand what the notice meant and the officer serving the documents did not and could not explain it to him. Joker thought he was to be immediately deported to Darfur although in fact he had a right of appeal. Given the situation in Sudan in 2007 it was highly unlikely that Joker would have been deported. He told another prisoner he would rather die in England than in Sudan. Joker was found hanging from a pipe by his bed sheet the following day on Christmas morning.
On 1 June 2010 a jury in Chelmsford Coroner’s Court returned a verdict highly critical of HMP Chelmsford and ESS’s treatment of Joker, finding that he killed himself but that this was contributed to by the failure of HMP Chelmsford to have a formal and managed system for the delivery of deportation documents to prisoners in place in December 2007 and the failure by Essex Social Services to provide assessed care and support to the deceased after his eighteenth birthday.
The inquest was told by a deputy governor from HMP Chelmsford that the situation has now improved for FNPs. UKBA now attends the prison a number of times a week as do legal representatives. However, in a report following an inspection from 3-7 August 2009, HMCIP made serious criticisms of HMP Chelmsford’s treatment of FNPs and it was unclear at the inquest whether these recommendations had been acted upon.
The government’s more recent response to the management of certain FNPs in prisons involved NOMS signing an agreement with UKBA which provided for a category of male foreign national prisoners to be transferred from the prisons in which they were serving their sentences to a small number of named prisons, primarily Dartmoor, Guys’ Marsh and the Verne. The justification was that more resources could be provided to assist such FNPs if they were ‘concentrated’ in specialist prisons (targets on removals were specifically part of the agreement). There was a suspicion that certain more remote prisons may have been deliberately picked to restrict access to families and legal assistance of choice. On 17 February 2010, the High Court found that prior to introducing this policy the Minister for Justice/NOMS failed carry out a race or equality impact assessment thus acting in breach of duties under the Race Relations Act 1976 and Disability Discrimination Act 2005. However, this policy remains in force and only time will tell whether it will be rolled out to all FNPs and whether it will genuinely result in improved care and treatment of this vulnerable category of prisoners or lead to more isolation.
Read an IRR news story: ‘Segregation policy for foreign national prisoners condemned’
Download a copy of the IRR’s report: Foreign nationals, enemy penology and the criminal justice system (pdf file, 217kb).
Read an IRR news story: ‘Segregating foreign national prisoners’
Read an IRR news story: ‘Pressure to deport foreign national prisoners’