What is immigration detention?
Immigration detention refers to the Home Office practice of detaining foreign nationals for the purposes of immigration control. It is supposed to be the final point before removal.
How does immigration detention in the UK work?
The United Kingdom has one of the largest immigration detention systems in Europe, confining over 30 000 people a year in 10 detention centres or immigration removal centres (IRC). The IRCs are run by private, sub-contracted companies. Since they are managed by different companies, they vary immensely in the way they are managed, as some of them are run by charities and others by private security companies.
The Home Office has the discretionary power to detain a person at any point of their immigration process: upon arrival in the UK; upon presentation to an immigration office within the country; during a check-in with immigration officials; once a decision to remove has been issued; following arrest by a police officer; or after a prison sentence.
Once in immigration detention, there is no upper time limit to how long individuals can be detained.
Is the UK truly the only country in Europe without a time limit on how long people can be detained?
The short answer is yes. All European countries except for the UK have statutory time limits on how long someone can be administratively detained and deprived of their liberty, whereas in the UK, that is not the case. Rather, the rule in the UK is that detention with a view to removal is lawful only if there is a realistic prospect of this occurring within a reasonable period. The reasonable period, however, is not defined.
How does immigration detention work in other European countries?
In most countries, asylum seekers can be detained for a time period ranging from four to six weeks. Some countries, such as Spain and Hungary, allow for an initial detention period of only 72 hours. After those 72 hours, continued detention needs to be investigated and approved by the judiciary. In the Netherlands, the time limit is six weeks for asylum seekers. For non-asylum seekers who are placed in immigration detention centres, a longer period of up to six months may be allowed. Generally, the average length of detention is about 3 months before cases are resolved and people are either removed or released. In France, the law does not differentiate asylum seekers from other detainees; instead, there is a general time limit of 90 days.
In Germany, the rules regarding how long individuals can be detained is tiered. The standard rule is that individuals can be held for up to six weeks whilst deportation is prepared. Deportation and detention pending exit can then be court ordered for up to six months, and if the detainee actively sabotages or hinders deportation, it can be extended to 18 months. This extension is only possible in exceptional cases. In comparison, BiD, a London-based charity which helps people get out of immigration detention in the UK, have at least 4 clients at any given time who have been in immigration detention for over 18 months.
Have there been many changes to immigration detention practices in recent years?
On the continent, there have been many reforms to detention centres in recent years. In Germany, for example, the immigration detention system has undergone major changes since 2014, when the Court of Justice of the EU ruled that using prisons for immigration detention purposes was unlawful.
Contrastingly, in the UK, several hundred individuals are still being held in prisons under immigration powers today. In addition, many of the UK detention centres are ex-prisons refashioned as immigration facilities. Most famously, Morton Hall, of which the government announced its closure this week, used to be a female-only prison complex.
What about countries outside of Europe?
Other common law countries such as Australia and the USA don’t have a statutory time limit either. But considering both those systems have been subject to intense criticisms and increased scrutiny of their human rights abuses, maybe the UK should hold itself to a higher standard.
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According to a report published in 2019 the number of self-harm incidents in Colnbrook Immigration Removal Centre (IRC) has tripled since 2016. In 2015, 393 suicide attempts were reported in UK immigration detention centres. That same year, 2957 people in detention were put on suicide watch. In 2018, more than one person a day needed medical treatment for self-harming in detention, with the number of detainees on regular suicide watch still on the rise. Yet, the risk of suicide in detention is barely on the Home Office agenda.
In 2016, the Home Office called upon Stephen Shaw, former Prisons and Probation Ombudsman, to use his expertise and write a review on the welfare of vulnerable persons in detention. As a former government employee himself, he openly criticised some of the most irrational aspects of the Home Office’s policy towards vulnerable detainees.
In his report, Shaw highlighted some of the issues with the UK handling of Foreign National Offenders. These are the people who, once they finish their custodial sentence and are released from prison, often get stuck in detention for the longest periods of time. These are also the people who the Home Office have insisted on keeping in detention during the nine-week long (and counting) COVID-19 pandemic-induced lockdown, even though there has not been a realistic prospect of removal for months as planes were grounded all over the globe.
It is therefore on Foreign National Offenders that the effects of detention often weigh the most. Case in point is Michal Netyks, 35, who jumped from a first-floor window in HMP Altcourse in Liverpool on 7 December 2017. He had been due to be released from prison, having just completed his short criminal sentence. An inquiry found that Mr. Netyks had packed up his belongings and was waiting for his release when he was informed that he would continue to be detained under immigration powers pending possible deportation to Poland. He took his own life that very same day.
The Coroner’s report outlined numerous concerns with this practice, echoed in Shaw’s report. By de facto depriving ex-prisoners of their liberty indefinitely beyond their custodial release date, the Home Office shatters any hope and expectation of rebuilding and rehabilitating after a criminal offence. This is made infinitely worse by not giving prisoners any prior notice that they will be detained upon release from prison. In his review, Shaw wrote that this practice is most detrimental to the detainees’ mental health, fuelling suicidal tendencies and tragedies like Mr. Netyks’. Nevertheless, the Home Office made no changes to its policy; the responsibility for the horrendous consequences of this failure to act rests entirely on the government’s shoulders.
As a response to Shaw’s findings, the Home Office developed a new Adult at Risk policy for people held in detention under immigration powers. This new policy is underpinned by the rule 35 mechanism, which supposedly ensures that potential vulnerable adults are examined by a medical practitioner and that their detention is only maintained when there is absolutely no other option.
But the numbers tell us otherwise. In 2018, an average of two suicide attempts a day happened in UK detention centres. 56% of these attempts were committed by individuals who had a rule 35 report and were recognised vulnerable adults. Clearly, the rule 35 regime is not effective, despite the Home Office’s continued argument that they do everything in their power to flag up potential concerns about detainees’ suicidal tendencies.
Shaw also raised concerns about the concealment and coverups of deaths in detention. Generally, when someone dies in an IRC, the Home Office does not conform to the Ministry of Justice’s practice of publishing data on deaths of immigration detainees who passed away under Home Office supervision. That is why numbers and explanations are elusive, and thus, exacerbations of harm even harder to prevent. In Mr. Netyks’ case, the Coroner’s report found that files had actively been deleted and redacted by senior management, an alarming example of how non-transparent the Home Office is regarding death in detention.
Between 2000 and 2015, at least thirteen people committed suicide in detention. This accounts for 36% of the deaths that happened in detention in that same period of time. The high rate of self-inflicted deaths reflects the high rates of mental despair among immigration detainees caught in a system which is difficult to understand, and seems arbitrary and unfair. To prevent these horrible and inhumane results, it is not a question of improving the management of vulnerable people. Rather, the Home Office should ensure that they are not put in detention in the first please so as to avoid unnecessary and inhumane deaths and trauma.
The UK is one of many countries that has implemented lockdown measures to deal with the coronavirus outbreak. These measures include strict travel restrictions, and in over 50 countries around the world, they go as far as a complete aerial lockdown.
Immigration detention is only lawful if there is a prospect of imminent removal. With borders closing worldwide and flights suspended, that prospect is non-existent. That is why Detention Action, an NGO which fights for immigration detainees’ rights in the UK, issued judicial review proceedings on 18 March 2020. The proceedings challenged the lawfulness of continued detention, in particular of persons with medical conditions placing them at increased risk from COVID-19.
In response, the Home Office has committed to reviewing all detainees’ case files to release as many people as possible, as quickly as possible, unless they pose a grave danger to the public. When the government began their case-by-case review, one case of COVID-19 had already been confirmed in Yarl’s Wood IRC, two cases had been reported in Brook House, and symptoms were recorded in most other removal centres.
Under the current circumstances, detention centres are at risk of becoming hotbeds of coronavirus spreading, as both detainees and staff are constantly in close contact with each other and amongst themselves. In efforts to prevent the virus from spreading within the centres, some facilities have isolated detainees and barred them from leaving their rooms, effectively turning their bedroom into a prison cell.
Nevertheless, Detention Action lost their case in the High Court, and the Home Office still refuses to systematically release all individuals currently held in detention, putting all individuals involved in this system at continued risk of ill health.
Government action, however, shows awareness that keeping detainees locked up could come back to bite them. Since Detention Action launched their claim, the Home Office released over 350 people held under immigration powers. The courts are also playing their part, as a solicitor from Bail for Immigration Detainees (BiD), a London-based charity, reported that ever since the travel restrictions and lockdown were enforced, 13 of his clients were granted bail and no applications were refused.
This is good news, but it is not enough. People currently held under immigration powers still need to go through the process of applying for bail if they are to be released, a process which has been made significantly more complicated by the pandemic itself.
On 20 March 2020, visits to immigration detention centres were indefinitely suspended as part of measures to contain the virus. This does not only have devastating implications for detainees on a personal level, as they can no longer see their loved ones. It also means that lawyers can no longer visit their clients in immigration removal centres.
Meanwhile, the Tribunal has started holding hearings remotely, but it seems that the courts do not lean itself to the online sphere easily, and their infrastructure is not ready to make the transition. This failure of court proceedings weakens detainees’ access to justice even further, as bail hearings are frustrated by the practicalities of online hearings.
This situation is not sustainable. After calls from Strasbourg and the Council of Europe to release immigration detainees in the face of this crisis, it is time to release everyone currently held under immigration powers, close detention centres and ensure that every individual receives the necessary care and support they need and deserve during these unprecedented times.