Two recent reports add fuel to growing demands to rethink indefinite immigration detention.
On any given day between January and March 2012, 3,500 people were held in immigration detention, of whom over forty had been there for over two years: the equivalent of a four-year prison sentence, for being a refused asylum seeker, overstayer or irregular migrant or awaiting deportation as a foreign national ex-offender. And in August, prisons inspector Nick Hardwick discovered a Somali man in Lincoln prison who had been in immigration detention for nine years beyond the end of his sentence, because he had been ‘forgotten’.
The first joint report of the prisons inspectorate and the independent inspector of UKBA on immigration detention confirms the long-standing complaints of detainees, their lawyers and support groups. Too many people are being detained for too long. The inspectors found problems with a quarter of all detention decisions. Because there is no statutory time limit for immigration detention, UKBA staff felt no urgency in progressing the cases of asylum seekers and foreign national prisoners (FNPs) in particular, with the result that they were being detained for far too long – a finding echoing the Independent Chief Inspector’s 2011 report. Nothing had been done to remedy the situation since.
A third of those leaving detention between January and March 2012 were not removed but released into the community, raising the question why they were detained in the first place. But once someone is detained, caseworkers tend to assume that’s where they belong, rejecting requests for release and treating reviews as tick-box exercises in justifying continued detention. The inspectors found that reasons for release, such as family ties or illness, were not considered, while detrimental information was recorded in detail.
One of the cases the inspectors describe is that of K, who came to the UK alone as a 14-year-old and claimed asylum. He was granted discretionary leave until he was seventeen and a half. After school, he attended college and worked part-time in a supermarket. The UKBA began taking steps to remove him once he was eighteen, and detained him on the basis that ‘you do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place’, despite his relationship with an EU national, and his former foster family writing that he ‘is part of our family and we need him around us’. He got bail two months later.
Most of those released from detention, like K, have had to apply to an immigration judge. But there is a shortage of legal help to make bail applications, as legal aid cuts have decimated the ranks of immigration lawyers: a quarter of those interviewed had no access to legal advice, and a fifth of those held for over six months had never applied for bail. No independent judge had ever scrutinised their detention.
The report noted UKBA caseworkers’ continuing detention of FNPs despite evidence of mental illness – which has led the High Court to condemn the UKBA for violating the absolute prohibition against inhuman or degrading treatment contained in the Human Rights Convention on a number of occasions. It noted, too, the failure of safeguards in the detention rules such as Rule 35, which ought to ensure that vulnerable and at-risk prisoners are released, but has not worked because UKBA staff ignore it. The inspectors found a young trafficking victim and a torture survivor, both detained in apparent violation of the policy.
Two-thirds of detainees interviewed by the inspectors reported health problems, over half reported mental health problems such as depression, stress or anxiety, with the percentage rising with the length of time detained.
One of these was a 67-year-old man, detained for ten months when interviewed, who had high blood pressure, had developed asthma in detention and found the uncertainty about his future very stressful. The file recording the decision to detain simply noted, ‘there are no known compassionate factors’.
It is now well known, thanks to the work of medical campaigning organisations such as Freedom from Torture, the Helen Bamber Foundation and Medical Justice, that detention exacerbates mental illness and emotional distress, sometimes severely and even fatally. Yet this knowledge has either not filtered through to caseworkers’ consciousness or, which is infinitely worse, is not seen as important because of the institutional racism which regards immigration detainees as not fully human.
The growth in judicial reviews of inappropriate or over-long detention is clearly exercising the authorities; it is expensive; it should not be necessary, and it is a constant public reminder of the barbarity at the heart of the asylum and migration system. In 1999 the government legislated to give all immigration detainees a statutory review of their detention at regular intervals. The law was never brought into effect and was eventually quietly repealed. It would have ensured independent review of all detention beyond a week, without the need for detainees to apply for bail.
In the light of the shocking situation the report reveals, the inspectors’ recommendations are tame. They do not consider seeking a statutory time limit on immigration detention, or even reinstating the right to regular independent review of all detention. Their main recommendation is a review of long-term detention (not defined), by an independent panel which however would have no power to order release, only to recommend it. Other recommendations are equally feeble, repeating UKBA policy (‘torture survivors should not be detained except in exceptional circumstances’) or detention rules (‘detainees should be given reasons for their detention in a language they understand’). The scandal of immigration detention needs a more robust response.
Segregating the victims
The picture that emerges from the unannounced inspection of Lincoln prison carried out by prisons inspector Nick Hardwick is one of violence, squalor and fairly primitive institutional racism. As well as the Somali forgotten for nine years, the inspectors found not just poor provision of interpreting and translation facilities for FNPs but also more general evidence of unequal treatment of black and minority ethnic prisoners, including their segregation in disproportionate numbers. And the segregation unit was bleak: lack of natural light, dirty cells, a grim special cell and a dirty exercise yard.
The finding about the over-use of segregation on BME prisoners takes on added significance in the light of one of the other main findings – that the prison was not safe, with assaults, victimisation and bullying rife and largely uninvestigated by staff. So while perpetrators of violence went unpunished, segregation was used against those who were too afraid to leave their wing for work but refused to name their tormentors, as well those at risk of suicide. This suggests that BME and foreign national prisoners are over-represented among victims of bullying and assaults, in an extremely hostile environment.