A High Court judge has ruled that families with children can be detained for removal only in exceptional circumstances.
A ground-breaking High Court judgment delivered on 11 January 2011, which means that henceforth, regardless of political decisions, detention of families with children can occur only in exceptional circumstances, when it is clear that no alternative exists which will ensure co-operation with removal.
Two test cases were brought by Public Interest Lawyers, with Liberty and Bedford Local Safeguarding Children Board acting as intervenors, in which the detention of two single mothers with young children was challenged as unlawful. In the first case, a Malaysian woman was living in Bury, Greater Manchester, with her two children aged eleven and nearly two, following the refusal of her asylum claim. She was not seeking to evade the UK Border Agency (UKBA) and was complying with reporting conditions. On 15 January 2010, she became suspicious when two UKBA officials visiting her home appeared to be making a sketch map of it. Her suspicions were heightened by the unfriendly manner of a formerly jovial official during a further visit on 1 February. On 7 February at around 7am, six UKBA officials banged on her front door, and on entry, demanded that she and the children pack their belongings. She was not allowed to call a lawyer. She and the children were all searched, and then put in a van with caged windows and driven to a car park where they were moved to another van and were taken to Yarl’s Wood. The 11-year-old child told the judge in a statement that he had been scared for the whole time he was detained, and had suffered diarrhoea. The younger child too became unwell, suffering from diarrhoea and vomiting, and their mother suffered from chest pains during the family’s detention. They were at Yarl’s Wood for seventeen days before being released.
In the second case, around ten UKBA officials descended on the north Woolwich home of a Nigerian single mother, a refused asylum seeker, and her 30-month-old daughter at 6.30am on 10 February 2010. Mother and child were taken to UKBA offices at Becket House, where according to the mother, they were both subjected to a body search, being forced to stand with arms outstretched. They too were taken to Yarl’s Wood, where they spent twelve days before their release. During their detention the child also became ill with diarrhoea. A detention review nine days after their arrest said the child ‘is clinging to her mother and is no longer the lively child she was when detained, her appetite has diminished, she is distressed if her mother will not carry her everywhere’.
The civil liberties group Liberty showed the judge a formidable array of expert opinions and reports documenting the adverse effects of detention on children, including a series of reports by HM Chief Inspector of Prisons Anne Owers cataloguing the unnecessary and harmful use of detention at Yarl’s Wood, and the 2009 joint report by the Royal College of General Practitioners, Royal College of Paediatrics and Child Health, Royal College of Psychiatrists and UK College of Public Health. The judge also had evidence from Bail for Immigration Detainees and the Children’s Society, to the effect that detention was inherently harmful, as well as reports from the Children’s Commissioner Sir Al Aynsley-Green and from the Home Affairs Select Committee, which expressed concern about the detention of families pending judicial review and other legal proceedings despite the lack of evidence of families ‘systematically disappearing or absconding’.
The judge held that the detention of both families was unlawful. Officials had not applied UKBA’s own policy, which was to detain only when necessary as a last resort, failing to consider alternatives to detention. There was ‘not a shred of evidence’ that officials had considered the duty to safeguard the welfare of the children in either case. In neither case had the ‘Family Welfare Form’ been completed, which required caseworkers to consider whether detention was ‘essential’ – clear evidence that the necessity of detention was not considered. In both cases, detention breached the claimant families’ rights not to be arbitrarily detained, and to respect their private life, including their psychological welfare, recognised by the European Convention on Human Rights. Significantly, the judge held that although the UN Convention on the Rights of the Child (which bans the detention of children save in exceptional circumstances) was not formally incorporated into English law, decision-makers had to comply with it.
This judgment, together with the closure of the Yarl’s Wood family unit, marks a real watershed in the fight for migrant children’s rights. Migrants’ rights campaigners hope to ensure that the immigration detention of other vulnerable groups, including victims of torture and rape, will receive the same level of public and judicial scrutiny. Meanwhile, with foreign national prisoners routinely spending three or more years locked up awaiting deportation after they have served their sentence, the campaign continues for an end to indefinite detention and for the humane and respectful treatment of all immigration detainees.
View the judgment here