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The UK’s Approach to Detention: Anybody and Everybody

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About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

Image © Håkan Dahlström

Last month, Channel 4 broadcasted an undercover documentary into the notorious Yarl’s Wood detention centre. The programme involved an intimate account of the conditions and, quite frankly, disgusting treatment of the approximately 400 female migrants and asylum seekers being held at the centre. These women had committed no crime, and yet could be held at the centre for an indefinite period of time whilst home office officials determine the validity of their potential refugee status, and thus ability to remain in the UK. Many had come from distressing backgrounds, and many have been forced to seek asylum due to a fear of persecution in their previous country - such was the case with Esther Izigwe, a former Yarl’s Wood resident. Fleeing to the UK from Ghana, Esther had ‘suffered years of sexual violence’, and had consequently developed depression. The guards did not offer sufficient support to Esther, and after threatening to ‘remove her by force to send her home’, she took action and jumped down a flight of stairs. Yarl’s Wood failed her.

The programme coincides with a Parliamentary inquiry into the current state of detention centres. The Joint Inquiry by the All Party Parliamentary Group on Refugees and the All Party Group on Migration examined the overall effect of indefinite detention periods, the conditions experienced whilst residing in a detention centre, and whether or not the detainees received adequate access to justice. Suffice to say, the report concluded that the current UK approach is grossly insufficient, pointing to the prevalence of mental health issues among detainees, inadequate access to legal services, and a huge financial cost attached to detentions. Furthermore, statistically, UK’s attitude towards detention is rather overzealous. In 2013, the UK detained 30,148 people, whereas Germany, despite receiving over four times as many applications for asylum as UK, detained only 4,309.

Before considering the Inquiry Report in detail, however, we must examine the existing legal framework for detention.

The 1951 Refugee Convention

As a Contracting Party to the United Nations’s (UN) 1951 Refugee Convention, the UK is strictly prohibited from penalising those seeking refuge within its territory, even if his or her refugee status has not yet been confirmed. Conversely, Article 31(2) states that the movements of refugees may only be restricted when ‘necessary’, and only until ‘their status in the country is regularised or they obtain admission into another country.’   

‘Necessary’ restrictions may be prompted by security considerations, or special circumstances such as a large influx of asylum seekers. Theoretically speaking, the purpose of the detention is to allow the Contracting State an opportunity to sufficiently investigate the circumstances of entry, and thus determine whether or not the asylum seeker should be deported, or granted refugee status (allowing them official entry into the UK). This provisional detention is thus not considered contrary to the Convention.

However, a distinction must be drawn between when an asylum seeker, or even failed asylum seeker, is being detained in order to comply with procedure, and when he or she is in fact being detained out of a lack of care. Contracting States are also obligated to offer reasonable assistance to asylum seekers with regards to determining their legal position, such as a ‘reasonable period’ of time, and ‘necessary facilities’. Judging by the findings of the Parliamentary inquiry, as well as the Channel 4 documentary, the UK has failed to comply with this obligation.

Key recommendations by the 2015 Inquiry

The Parliamentary Inquiry was indeed long awaited, and followed a series of extremely tragic incidents at detention centres around the country. For example, in January 2014, an 84 year-old sufferer of dementia who, despite deportation being out of the question, was kept at a detention centre, and restrained until his death. Mark Harper, former Immigration Minister, condemned the ‘completely unjustified’ use of handcuffs on the victim. Furthermore, this was not an isolated incident.

The Inquiry received over 200 written submissions and oral evidence from a wide variety of individuals and organisations, such as Amnesty International and the UN Refugee Agency, and the Immigration Law Practitioners Association, and found that:

[T]he UK uses detention disproportionately and inappropriately. The evidence shows that the current system is seriously detrimental to the individuals who are detained in terms of their mental and physical well-being, as well as hugely costly to the tax-payer.

Consequently, the following recommendations were laid out in order to tackle the treatment and control of detainees as criminals, and were debated in the House of Lords on 26th March:

  • A time limit of 28 days should be introduced, in order to prevent indefinite, and inhumane, detention.
  • Detention should only be used as a last resort, with other community-based resolutions taking precedence.
  • The purpose of detention should be to ‘effect removal’ - not to restrict the movement of asylum seekers for essentially punitive reasons.
  • The Government should consider a wider range of alternatives to detention, such as the Swedish approach.

Several reasons for this change in approach can be identified within the report: mental health concerns, inadequate access to justice, and the financial burden of excessive detention.

Abuse, vulnerability, and the undeniably high suicide risk

One of the most harrowing quotes of the Channel 4 documentary can be heard while Yarl’s Wood staff are discussing the mental health of the detainees under their watch. One guard is recorded saying:

They are all slashing their wrists, apparently. Let them slash their wrists… It’s attention seeking.

Following the programme, a Home Office Spokesman has assured the public that Serco has suspended members of staff, and will be conducting ‘thorough and immediate investigations into all matters raised by this programme.’ Serco’s role within the scandal was also referred to in the Inquiry, due to a severe lack of female staff members within the all-female Yarl’s Wood.

The Inquiry referred in great depth to the effect detention can have on an individual’s mental health, particularly given that these detainees are already extremely vulnerable because of both their background within their previous country and their precarious position here in the UK. Submitting evidence for the Inquiry, Dr Katy Robjant of the Helen Bamber Foundation stated:

Certainly our clients talk about [indefinite time periods] being a major problem and increasing their sense of hopelessness and despair … And of course they may have already experienced, before going into detention, torture situations where they didn’t know whether they would leave the prison alive or not, so it can also act as a reminder for that.

Dr Robjant went on to suggest that ‘those who were detained for over 30 days had significantly higher mental health problems than those who were detained for under 30 days.’ It is with this knowledge, that the Inquiry recommended a maximum detention time frame of 28 days.

Inaccessible legal system

A second key reason for Government to follow up on the Inquiry’s recommendations can be found in the European Convention on Human Rights (ECHR). I would not hesitate in declaring that the current practice of detaining asylum seekers here in the UK should be considered a breach of Article 5 (right to liberty and security), and consequently Article 7 (no punishment without law). As implemented by the Human Rights Act (1998), the ECHR is very clear when it states that no individual should be detained unless they meet one of the six criteria, one of which is to prevent an individual’s ‘unauthorised entry into the country’. This clearly deals with the issue of detaining asylum seekers, however the Article goes on to state the need for the detainee to be ‘entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’ With detainees being commonly held for months, if not years, I would seriously question whether the UK is meeting this obligation.

Successful cases have been brought against the Home Office in the past, claiming unlawful detention. In Muuse v Secretary of State for the Home Department [2009], the High Court awarded a Dutch national substantial damages of around £60,000 for false imprisonment. He had been held unlawfully for 128 days whilst the Home Office attempted to deport him to Somalia, despite having his Dutch passport on the prison file. The Home Office admitted ‘falsely imprisoning Mr Muuse and accepted his entitlement to compensatory damages’, and stated that it was due to confusion over his identity. In Bizimana, R (on the application of) v Secretary of State for the Home Department [2012], the Court of Appeal found that the claimant had also been unlawfully detained. The individual was detained for six months (and had previously been held for 16 months), despite there being little prospect of deportation.

These cases can be contrasted with Saadi v United Kingdom (2008), in which it was found that the UK had not breached Article 5 for detaining an Iraqi asylum seeker. However, the key difference in this case is that the claimant was only detained for seven days, a ‘reasonable’ period of time, unlike in Muuse and Bizimana.

It is rare for these cases to even come to light, when considering the lack of legal representation available to detainees. One previous UK detainee submitted evidence to the Inquiry regarding their experience of accessing legal support and advice:

For a period of 7 months, I did not have a single solicitor. I had to see [the police] by myself, to write, to caseworker, to High Court, to asylum tribunal, I write by myself. I was prevented from having a solicitor. I didn’t have any solicitors.

The primary method of access to legal representation for detainees is through a ‘legal surgery’, in which publicly funded lawyers are able to give advice to those who could not otherwise afford it. Unfortunately, these surgeries are not as accessible as envisaged. Submitting evidence for the Inquiry, Kay Everett, a solicitor from the Immigration Law Practitioners’ Association, stated:

...detainees are not getting access to us immediately; they’re not being informed about the surgeries; they’re not being given information about how to sign up for a surgery and what a surgery means and what it could lead to.

Unlawful detention is grave enough, but then going on to deny the individual adequate legal representation is absolutely abhorrent. The Inquiry therefore recommended that the Legal Aid Agency and the Immigration Services Commissioner should make vast improvements to the legal access available within detention centres, including better legal representation, and more frequent bail hearings.

The expensive reality of detention

If the above reasons do not manage to sway Parliament, and I would be disheartened and shocked if they did not, then perhaps the financial implications of detention will go some way to effecting change. The Inquiry found that the ‘cost of running the immigration estate in 2013/2014 was £164.4m, with the cost of detaining one person for one year being £36,026.’ Since many detainees remain in the centres for in excess of a year, the average cost for each individual is just over £50,000. In addition, the Government paid nearly £15m in compensation for unlawful detention claims between 2011 and 2014. In comparison, the average cost of a prisoner within the criminal justice system was estimated to be £33,785 per year. Excessive detention of asylum seekers and migrants is a grossly inappropriate waste of public funds, especially when you consider how other countries deal with the very same issue.

The Swedish Example

In 2013, the average length of detention in Sweden was five days. Sweden received 54,259 asylum applications, with 2,893 people being held in detention. Members of the Inquiry visited Sweden in order to see for themselves how an efficient detention system operates. Detainees were treated as ‘customers’ rather than criminals. The Swedish system utilised an early intervention model, in which asylum seekers ‘meet regularly with a case worker’, who is responsible for both their detention process, and overall well-being. Support and trust were developed, and a variety of public services were readily available to the detainees. Judging by the findings of the Inquiry, this is quite different to the UK model. Our model appears to rest on the basis that all those who unlawfully enter the UK will remain unlawful, and are purely in the detention centres until this can be proven. Additionally, adopting the Swedish model would significantly reduce any expenditure wasted on zealous detention. In 2013, Swedish detention costs (including staffing costs, medical costs, food and accommodation, and legal assistance) amounted to approximately £20.7m, presumably due to the short detention durations. Contrast this with our expenditure, and the UK has another reason to reform detention practice.

Additionally, the EU has attempted to step in and regulate countries’ treatment of asylum seekers and migrants. The EU Returns Directive 2008/115/EC introduced a maximum time limit of six months, however the UK is one of two countries (the other being Ireland) who has failed to implement it. Phil Woolas, former Minister of State for Borders and Immigration, attempted to reason with the decision:

Our current practices on the return of illegal third country nationals are broadly in line with the terms of the Directive, but we prefer to formulate our own policy, in line with our stated position on retaining control over conditions of entry and stay.

It would appear that the overwhelmingly large number of detainees, and their long stays within our detention centres, is due to the usual arguments of sovereignty and territorial control.

Detention being used as the rule, not exception

With the Inquiry finding no correlation between the length of time of detention, and likelihood of deportation (in fact the opposite has been found - see Chart 3), it would appear that the UK is not using detention in the way it was designed. It is not being used as a short-term solution whilst the asylum seeker’s status is determined, and it is not being used as a necessary procedure prior to deportation. Instead, people in detention are essentially being criminalised.

Ensuring adequate legal representation, and treating the detainees as the immensely vulnerable individuals which they are, will give an end to the unacceptable detention conditions found in facilities like Yarl's Wood. In 2015, the above recommendations should essentially be no-brainers. These people are not criminals, and an over-eagerness to detain is far from appropriate. With the general election in the horizon, parties are making pledges to utilise the Inquiry’s recommendations. If the moral implications of excessive detention do not sway the voters, then I at least hope the financial implications and a comparison with other countries will. The UK is truly behind the times on this matter.

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Tagged: Human Rights, Immigration, International Law

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