Last week, Home Secretary Priti Patel introduced her Nationality and Borders Bill into Parliament for its first reading. The Home Secretary said that the bill is “the change we need to fix the UK’s broken asylum system.” Its main provisions include an attempt to criminalise certain asylum claims, expand powers of detention and making more asylum claims inadmissible.
The Bill clearly brings change, if not in practice, then at the very least in black letter law. The question of whether it fixes anything is a whole different issue. It is clear as day that the asylum system in the UK is overloaded. It takes a long time for the Home Office to reach decisions, and when they do, those decisions are often overturned. The Migration observatory reports that the share of asylum applications resulting in an initial decision within six months fell from 87% in the second quarter of 2014 to 22% in the second quarter of 2020. As for appeals, 43% of appeals on initial refusals are overturned in court, meaning the Home Office gets it wrong almost half the time. These certainly are symptoms of a problematic – or potentially “broken” – system.
Ms. Patel blames this “broken system” on the asylum seekers crossing the Channel to the UK, proposing this Bill to fix this. However, the number of asylum applications is historically low, with the COVID-19 pandemic continuing a trend of falling applications that started in the early 2000s. Contrastingly, success rates are higher than ever, meaning that a high percentage of asylum applicants are recognised as refugees in need of sanctuary. In other words, as the amount of asylum seekers falls and their successful claims increase, the system has become progressively slower and inefficient. The problem does not seem to be with asylum seekers, but rather with an overly bureaucratic and complicated asylum system that is designed to make applications fail. Ms. Patel’s proposed solution only adds more legislative barriers to that process, meaning that rather than fixing its problems, it will most likely amplify them.
Substantively, the Bill introduces a differential treatment of refugees based on their means of entry to the UK. Refugees who do not arrive in the UK directly from a country of persecution, such as those who travel through Europe, will find that their asylum application upon arrival in the UK will be automatically filed as inadmissible. The Home Office will then attempt to remove them from the UK, and will only hear their asylum claim if removal turns out to be impossible. Effectively, this means more people will be stuck in detention or other forms of government accommodation for longer periods of time, when their case is likely to end up being heard at a later point anyway. Keeping people in detention when they have not even had their case heard is not only immoral and potentially in breach of the 1951 Refugee Convention, but also expensive.
Once their case is being heard, those refugees who came through “safe” third countries who are granted asylum will no longer receive leave to remain. Instead, they will receive “temporary protection” to be renewed regularly. Under ‘temporary protection,’ the refugees will be at risk of being removed every time the Home Office assesses their status for renewal. This is in contrast with those asylum seekers who are deemed to have entered the UK legally, who will receive indefinite leave to remain immediately upon the grant of asylum. This differentiation between legal and illegal entry flies in the face of the Refugee Convention, which expressly states that an asylum claim should not take mode of entry into the country of refuge into account. Evidently, this arrangement suits the Home Secretary well. The UK is an island, after all, and does not border any war zones. It is therefore highly unlikely that any asylum seeker entering the UK will have done so without crossing multiple borders, sometimes without all necessary paperwork or through unconventional routes.
Home Office rhetoric on immigration has emphasised the need for refugees to come to the UK through legal routes, and to support the expansion of those routes to then penalise those who fail to use them. However, this Bill only does the latter, failing to increase or expand on legal routes at all. It does not set a target for resettlement numbers, it limits rights to family reunion for those with ‘temporary protection,’ and limits safe routes of entry. The story Ms. Patel is selling to the British public is one of reducing the “burden” of asylum seekers on the UK, yet all her proposal will do is increase that burden by making the asylum process more complicated, more costly, and more bureaucratic. How that is going to fix anything remains a mystery.
The end of the grace period is near. From 1 July 2021, free movement will end, meaning UK citizens will no longer be able to move through the continent without restrictions, and EU citizens living in the UK will need to apply for status or become unlawful residents. With the passage of Home Secretary Priti Patel’s new immigration bill and the points-based immigration system, they will become subject to the same rules that have exposed non-EU nationals to discrimination, abuse and extortionate fees for years, ever since the hostile environment came into force.
EU citizens who fail to apply to the EU Settlement Scheme (EUSS) before the transition period ends have a six-month grace period, until 30 June 2021, in which they can still apply and resolve their status without becoming unlawfully resident. If they fail to do so, they will be cut off from a range of rights and entitlements, including homelessness assistance, welfare benefits and free NHS care. Worse yet, they could be liable for forced removal or deportation from the UK. What is the difference between the two?
Forced removal or administrative removal is when the Home office enforces an individual’s removal from the UK if that person does not have leave to remain. Section 10(1) of the Immigration and Asylum Act 1999 as amended by the Immigration Act 2014 states explicitly that a person who “requires leave to enter or remain in the United Kingdom but does not have it” may be removed from the UK. This can be because their application for leave has been refused, or their valid leave expired and they overstayed past the expiry date. Specific removal directions can only be set for an individual once they have no outstanding casework barriers, the person liable for removal is fit to fly, they have a valid travel document, and there are no other human rights interfering with the removal (for example, if there is a risk of family separation, that needs to be sorted out first.) Once an individual gets removal directions, they might be able to challenge it. Valid reasons to challenge removal include having a pending asylum claim, or a pending appeal. Certain types of judicial review may also form a barrier to removal. As mentioned before, an individual should also not be removed from the UK if it would breach the UK’s human rights obligations, whether under the European Convention of Human Rights (ECHR) or the Refugee Convention.
Deportation, on the other hand, is a different form of enforced removal, when removal is happening for the “public good.” This is set out in Part 13 of the Immigration Rules. Usually, deportation happens after an individual serves a criminal sentence in the UK. Under the current rules, if an individual is sentenced for more than 12 months in prison, their deportation is “conducive to the public good and in the public interest”. The Home Secretary must then make a deportation order against that individual. The rules also state that deportation is “conducive to the public good and in the public interest” if the offending “caused serious harm” as determined by the Home Office, or the offender is a “persistent offender who shows a particular disregard for the law”, irrespective of how long they were sentenced for. If an individual is liable for deportation, their immediate family (understood as spouses, civil partners or children) can also be liable for deportation unless they have Indefinite Leave to Remain, are British nationals, or have been living separately from the foreign offender.
If the Home Office makes a deportation order against an individual, they will be issued with notice of deportation arrangements. In order to challenge deportation, they will have to show that deportation would breach their rights under the Refugee Convention or the ECHR, in particular the right family and private life under Art. 8 of the ECHR. Generally, the balancing act between the offender’s human rights and the public good is in favour of deportation. The threshold of what the individual must prove in order to successfully challenge the deportation order against them goes up the longer their sentence is. As such, those who are convicted of a crime and sentenced to four or more years in prison (or more than one year and don’t fit within the exceptions) will need to show that there are “very compelling circumstances” in their case to outweigh the public interest in their removal. The standard to prove “very compelling circumstances” is extremely high. These rules apply to all foreign nationals in the UK.
For EEA nationals, Brexit adds a new dimension to the rules applicable to them. An EEA national with settled or pre-settled status can still be liable for deportation if they commit a criminal offence. However, the balancing act of their individual human rights against the public good will be influenced by when the crime was committed. As such, if the criminal offence was committed before the end of the transition period (i.e. before 31 December 2020), the Home Office will need to consider the pre-Brexit rules on EU nationals. This means the Home Office have to show that deportation is in the interests of “the public good, public health or public security”. The threshold for showing that deportation is in one or more of these interests was generally higher for EEA nationals than the “public good” arguments for deportation of non-EEA nationals. If the criminal offence was committed after 31 December 2021, the same deportation rules apply to EEA nationals as to third party nationals.
Removals and deportations are usually carried out either on a commercial airline or by private charter flights, though the latter have been the subject of some controversy. Individuals who are forcibly removed from the UK – whether by administrative removal or deportation – usually are banned from re-entering the country for ten years. After those ten years, a forcibly removed individual may re-enter the UK. A person who was deported, however, cannot re-enter the UK as long as the deportation order is in force against them, which may last beyond the ten-year period.
If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
In September 2020, the government decided to start using two former army barracks in Wales and Kent to house asylum seekers, most of whom arrived in small boats crossing the channel. The barracks, Napier (Kent) and Penally (Wales), can house up to 665 people.
General government policy is to house asylum seekers within communities whilst they wait for a decision on their asylum claim. Where housing in communities is not possible, the government started putting people in barracks as “temporary solutions.” The solutions, it turns out, were not so temporary, as some residents are kept at the barracks for weeks, if not months, on end.
The barracks are managed by private contractor Clearsprings. Ever since their opening, they have been criticised for their living conditions, including overcrowding, limited access to healthcare and legal advice, as well as abominable food and sanitary services.
The pandemic has exacerbated these circumstances. Social distancing is impossible in the barracks; people sleep in bunk beds separated only by a sheet. There have been rumours of curfews and limitations on residents’ movement, which the Home Office steadily deny, stating that the only restrictions in place for the residents are the COVID-19 related restrictions in force across the nation.
To make matters worse, a recently-leaked report shows that Public Health England warned against using dormitories in army barracks to house asylum seekers months ago. This advice was ignored, with the residents bearing the consequences. At Napier barracks, residents with negative COVID-19 test results were made to stay in the same room as those who tested positive. Add do that the lack of access to a GP and other standard healthcare provisions, and a COVID outbreak seemed unavoidable. The inevitable ultimately happened, and in January, as many as one out of four residents at Napier tested positive with the coronavirus.
After the outbreak, the government released most, but not all, residents from Napier barracks. 63 asylum seekers remain at Napier today. Trapped in the camps, their mental health is deteriorating. Many of them have lived through trauma either in their home country or during their journey to the UK, and are therefore extremely vulnerable.
Six asylum seekers brought a case against the government, arguing that conditions at the barracks are inhumane. Their case was heard in the High Court last week, during which the Home Office conceded that it was arguable that the use of Napier barracks to house refugees is unlawful and in breach of human rights. Judge Martin Chamberlain ruled for the asylum seekers, and a two-day judicial review hearing of the government policy and the circumstances in the barracks is set to begin on 13 April.
The atrocious situation in the barracks is not an isolated event. Rather, it is symptomatic of the way this government has treated migrants all along. The outsourcing of services to private contractors, the segregation of migrants, and the demonisation of those seeking to enter the UK via unconventional routes are not new policies. The hostile environment’s aim, after all, is to make the UK as inhospitable as possible so as to make migrants leave the country voluntarily. Its methods inherently lead to stigmatisation and segregation, and in this case go as far as putting the migrants in objectively abhorrent conditions in the middle of a global pandemic.
If you want to take action in the meantime, sign Freedom from Torture’s petition to empty the barracks here, write to your MP to highlight the issue and help spread awareness of that is going on.
If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
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.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
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.
A year has gone by since the Stansted 15 were convicted of terrorism offences for blocking the take-off of an immigration removal charter flight at Stansted airport. Where are they now, what has happened since, and how has the law changed?
On 28 March 2017, a group of nine men and six women cut a hole in the perimeter fence of Stansted Airport, and used lock-on devices to secure themselves around a Titan Airways Boeing 767 chartered by the Home Office to remove 60 undocumented immigrants to Nigeria, Ghana and Sierra Leone.
Initially, the Stansted 15 were charged with aggravated trespass, but four months later these charges were upped to “endangering safety at aerodromes”, a serious terrorism-related charge which can lead to a life sentence. As a consequence, on 10 December 2018, the 15 were convicted under this rarely used anti-terrorism legislation and faced a potential sentence of life in prison.
The verdict was criticized by many human rights organisations, including Amnesty International, as it was seen as a blow to non-violent human rights activism. It was said that by charging peaceful public dissenters with such heavy crimes, the prosecution effectively threatened the future of peaceful protests as well as the legitimacy of public dissent in the UK.
The 15 were protesting Theresa May’s hostile environment policy, introduced in 2013. The idea behind that policy is that by making life for undocumented individuals difficult in the UK, they will leave the country or report to the relevant authorities, allowing the Home Office to curb and control immigration more effectively. Amongst other things, the hostile environment policy requires immigration checks to be carried out before anyone can open a new bank account, be issued with a driving licence, rent a flat, or access routine health treatment. The judgment against the 15 seemed to reflect the government’s hostile approach to immigration generally
One of the people who had a seat booked on the mass deportation flight which the Stansted 15 managed to stop, said:
“Migration and deportation targets suck humanity from a system whose currency is the lives of people who happen to be born outside the UK. Such is the determination to look “tough” on the issue that people are rounded up in the night and put on to brutal, secretive and barely legal charter flights. Most take off away from the public eye – 60 human beings shackled and violently restrained on each flight, with barely a thought about the life they are dragged away from, nor the one they face upon arrival.”
After months in detention and years facing the hostile environment, he won his appeal, which he was only able to attend thanks to his flight being cancelled. He has now regularised his status in the UK, enabling him to live with his partner and three young children.
The Stansted 15 were sentenced in February 2019. The sentencing judge accepted they were motivated by “genuine reasons,” and as a consequence, all 15 avoided immediate prison sentences, with three set to be given suspended sentences and 12 set to be given community service. A year after their conviction, it is worth reflecting upon the state of the laws they were protesting against, and the cause for which they were willing to take such serious risks.
Both Labour and the Liberal Democrats have vouched to end the hostile environment, stating that making landlords and banks perform immigration checks instead of investing in the immigration system is an inhumane and ineffective way of policing migration. Dianne Abbott, Labour MP for Hackney North and Stoke Newington, has argued that mass deportation on chartered planes is a brutal way of responding to the current immigration panic, as it allows people to be bundled out of the country when they have not yet exhausted all their avenues of appeal and without due process. This was no different on the aircraft which the Stansted 15 managed to stop: today, at least two of the 60 passengers who were to be forcibly deported that day live legally in the UK. At least nine other claims remain outstanding.
The Stansted 15 stated that although they consider saving these 11 people’s lives a partial victory, there is still a long way to go. In the meantime, they have appealed their conviction, and are waiting for it to be listed in the coming months, as they refuse to accept their guilty verdict. One of 15, Benjamin Stoke, states,
“We were charged with endangering life, but we took the actions at Stansted to try to protect life.”