Legal but Unfair: The High Stakes of the UK Immigration Detention System

Published 9 August 2011 / By Stephanie Silverman, DPhil Politics and International Relations

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The UK immigration detention system is always attracting attention, most of it negative.  There are protests organised monthly - if not weekly - outside of detention centres and in the centre of London.  MPs ask Parliamentary Questions about the statistics and treatment of detainees; the United Nations intervenes in UK domestic politics to express its disapproval; the Immigration Law Practitioners Association publicly calls foul on the lack of bail options for detainees; and, during the 2010 General Election campaign, Nick Clegg makes ending child immigration detention a key manifesto promise.

So, why all the fuss? Why are activists, barristers, mental health professionals, students, pensioners, and politicians all working towards improving conditions for UK immigration detainees, if not ending the practice altogether? Because, while it may be legal, the UK immigration detention system is far from fair.

To better understand why the stakes are so high, here is a potted list of some of the current issues, and why they might provoke anxiety and outcry.

The size and cost of the system
The UK immigration detention system expands virtually every year.  As of 2011, the UK boasts one of the largest networks of immigration detention facilities in Europe.  According to Home Office statistics, approximately 30,000 non-citizens entered detention under Immigration Act powers in 2009.  Put another way, nearly 3,000 non-citizens in the UK are being detained under Immigration Act powers on any given day.  This compares to 1,950 total immigration detainees on 25 December 2004 and 780 on 30 December 1998. After the re-purposing of the Morton Hall prison as an immigration removal centre (IRC) in June 2011, UK detention capacity expanded to approximately 3,500 places.  As a snapshot example, 2,525 non-citizens were detained in UK facilities on 31 December 2010.

The detention system is extremely expensive to run.  In 2010, the average overall cost of one bed per day in the immigration detention estate was £120.  This means that, to take our example of 31 December 2010, the detention system cost taxpayers approximately £303,000 for that one day only.  Further, since the UK Home Office outsources the operations of the majority of its detention facilities, much of this money is being pocketed by private firms and this in turn raises issues of accuracy and transparency.

The double jeopardy of detaining foreign national ex-offenders
The UK government has prioritised the removal of foreign national ex-offenders (FNOs).  This change in policy was a response by then-Home Secretary Charles Clarke to satisfy the public outcry over the release of over 1,000 FNOs due to overcrowding in the prison system.   Non-citizens from outside Europe who have been sentenced to more than 12 months custody in England and Wales, and European Economic Area nationals sentenced to more than 24 months, are subject to mandatory removal.  This means that, after serving their criminal sentences, FNOs are transferred immediately to an immigration detention facility to be detained pending deportation.  This change may be in name only: in certain cases, the detainee does not actually go anywhere, but responsibility shifts from HM Prison Service to the UK Border Agency.  So, after serving their prison sentences, FNOs are forced to serve additional time in immigration detention.  Is this a case of double jeopardy?

On a pragmatic level, the mandatory detention of FNOs expands the detention population considerably.  On a more abstract level, the policy contributes to a misguided and harmful conflation in the public mind that links immigration detainees with criminal behaviour.

The UK detains the greatest number of asylum seekers for longer periods than anywhere else in Europe
The majority of asylum seekers coming to the UK are granted temporary admission while their claims are being considered.  A small but significant proportion, however, is detained in prisons or IRCs under Immigration Act powers.  Indeed, the largest category of immigration detainees in the UK is that of people who have claimed asylum at some point in their immigration processes.  From December 2008 until September 2010, for example, asylum seekers constituted 67.75% of the total detainee population.

Child immigration detainees
In the 1990s, the Home Office rarely detained immigrant families with children.  By the late-2000s, however, the Home Office was detaining between 1,000 and 2,000 children each year, the majority under five years of age. The official policy was that unaccompanied child immigrants and asylum seekers were detained only during extremely exceptional circumstances and only overnight.

After a vocal campaign spearheaded by a broad coalition of non-government organizations, activists, journalists, academics, and legal professionals, Deputy Prime Minister Clegg announced in summer of 2010 that the UK was ending its practice of child immigration detention.  Throughout the rest of the year, however, child detention continued, albeit at a much slower rate.  As of May 2011, the matter is unresolved: On the one hand, the family unit at the Yarl’s Wood facility has been closed for children under the age of 18.  On the other hand, the much smaller family unit at the Tinsley House centre near Gatwick Airport is being expanded and refitted; Tinsley House will accommodate families intercepted at the border who are refused entry for up to 72 hours.  Families whose cases cannot be resolved in three days will be held in an as yet undisclosed site.

Indefinite immigration detention
Unlike for criminal prisoners, immigration detainees usually don’t know how long their incarcerations will last. A presumptive limit exists of five consecutive days for those non-citizens being held in immigration offices at ports, police stations, or mobile detention facility vehicles.  Despite this constraint, however, it is not uncommon for detention to span two to six months, with a small but consistent minority of immigration detainees being held for more than one year.

The UK government justifies this policy by arguing that time limits could hinder its ability to determine cases fairly, and might inadvertently trample on the detainees’ due process rights. But psychiatrists and other health practitioners counter that the ‘unknowingness’ element can present difficulties akin to mental torture. Anecdotal evidence also suggests that it is one of the top complaints from the detainees themselves.

The longest known period of immigration detention was suffered by Karamjit Singh Chahal, an Indian national who was detained pending the execution of a deportation order made against him on national security grounds. He remained in detention for 3.5 years during the national proceedings, 6 years in total.  After petitioning the European Court of Human Rights, Chahal was finally released on 15 November 1997 after the Court ruled it would be illegal to deport him.

Why are there no time limits?  It seems a case of omission rather than proactive planning: after the foundational Immigration Act 1971 neglected to specify an upper time limit on detention, there were no subsequent attempts to clarify the matter.  Government did not want to set restraints of future administrations, and, since detention was mostly used in the 1960s and 1970s for shorter periods of time, it probably did not seem like a pressing issue.

The European Parliament and the Commissioner for Human Rights of the Council of Europe have explicitly criticised the UK for refusing to observe an official upper time limit on immigration detention.

Access to bail
Short of deportation or release, the only way for immigrants to get out of detention is by making a successful bail application. Since the 2002 Nationality, Immigration and Asylum Act withdrew a provision for automatic bail hearings, however, detainees are now required to request their own. But this process is far from straightforward and is hobbled with some additional barriers that include: inexpert legal advice, or problems accessing high-quality legal representation; lack of sureties; language or literacy barriers; difficulties acquiring a bail address; problems with listing a bail application; issues with the reliance on video-link hearings; lack of accountability for immigration judges’ decisions; lack of availability in tribunals to hear cases; and the fundamental problem that no one is assigned responsibility for informing the detainee that it is incumbent upon him or her to apply for bail.  There is also an option for placing additional restrictions on bail to prevent future offending of FNOs that some detainee support groups find ethically objectionable.

The detention of vulnerable people
Vulnerable immigrant groups include unaccompanied children, elderly people, the severely disabled, pregnant women, and anyone suffering from serious medical conditions or mental health problems. Many asylum seekers are de facto vulnerable people because the definition of their status includes anyone who demonstrates evidence of torture,

UK Home Office policy is that people in vulnerable groups should only be held in immigration detention during exceptional circumstances; however, guidance is not clear as to the exceptional circumstances that allow people from these groups to be detained. It seems that vulnerable migrants are actually detained for sizeable periods of time in the UK. Médecins Sans Frontières recently concluded that UK IRCs lack a systematic process of identifying and ensuring the release of detainees suffering from serious medical conditions or the mentally ill.

What's it all for?
Although this discussion articulates some major issues of concern, there are still many more that tarnish the legitimacy of the UK immigration detention system.  Chief among them – and perhaps encapsulating all of them – is the human cost of detention.  Almost every medical examination of non-citizens detained for immigration purposes in the UK, the US, Australia, and elsewhere has found the same thing: immigration detention has a deteriorative effect upon the detainee (and their families and community). Typical effects include depression, anxiety, weight loss, insomnia, isolation from loved ones, and disruption of life plans.  The symptoms of the psychological harm caused to detained children include bed-wetting, loss of bowel control, heightened anxiety, and food refusal. While not typical, there have also been cases of self-harm and suicide in UK immigration detention. Children and young women suffer the most after being held in immigration detention, even if the detention is only for a short period of time.

Most importantly, the heavy costs of detention that are borne by detainees and financed by taxpayers are for naught.  There is no credible evidence available that confirms the UK government’s claims that detention deters irregular immigration.  Empirical evidence presented by the UN High Commissioner for Refugees suggests instead that, barring specific cases, “detention is largely an extremely blunt instrument to counter irregular migration” and fails to mitigate the factors that cause people to migrate across borders.

There are workable alternatives to detention, and it is time that the UK government gives serious consideration to implementing them.