As governments around the world have been urging people to ‘stay inside to save lives’, activists and lawyers have been working hard to get people out of immigration detention for the same reason. In the UK, Covid-19 has entered the immigration detention estate and immigration removal centres (IRCs) offer an ideal breeding ground for its spread.
Despite the danger, the Home Office has kept hundreds of people in detention – even though its own policy dictates that there exists a ‘responsibility to use [immigration detention] sparingly and for the shortest period possible’. Before detaining someone, therefore, the Home Office must consider whether there is a real prospect of the person being removed from the UK within a reasonable time. It is highly doubtful that such a prospect currently exists, since Covid-19 has resulted in countless international travel bans and potential ‘unfit to fly’ designations.
A 2019 Home Affairs Committee report on immigration detention found that Home Office policy and guidance is ‘too often not being followed’. It also found ‘serious problems with almost every element of the immigration detention system’. The Home Office was accused of demonstrating a ‘shockingly cavalier attitude to the deprivation of human liberty and the protection of people’s basic rights’, with people being ‘wrongfully detained, held in immigration detention when they are vulnerable, and detained for too long’.
The report highlighted the unacceptable treatment of detainees in IRCs, the impact of detention on their mental health and the poor standards of healthcare available to them – issues compounded by understanding and a culture of disbelief of detained people’s personal accounts among healthcare staff.
On 19 March, Detention Action issued a challenge in the high court petitioning for the release of hundreds of immigration detainees in response to the pandemic. Relying on expert evidence, Detention Action argued that immigration detainees face a significantly higher risk of infection with Covid-19 because of the inherent difficulties of managing infection among a confined group. Richard Coker, emeritus professor of public health at the London School of Hygiene and Tropical Medicine, concluded that it was plausible and credible that 60 per cent of immigration detainees would become infected.
The legal challenge was ultimately dismissed. However, it resulted in significant concessions from the Home Office, including the release of almost 1,000 detainees between 16 March and 21 April in the run up to a more substantive hearing and new guidance being issued on immigration detention that now considers the circumstances of the pandemic. The Home Office also undertook to review the cases of those currently in detention.
A further report by Professor Coker highlighted that some measures, in particular the suggested practice of keeping together those detainees suspected of being infected with Covid-19 to prevent further spread, were ineffective. He said that the previous guidance ignored the reported cases of transmission from infected but asymptomatic individuals and made no provision to manage this risk.
In the wake of the Detention Action challenge, a number of court claims for judicial review have been instigated on behalf of individuals detained in IRCs, including by a team at Bindmans law firm. The primary arguments being employed are typified in the reported case of R (on the application of Zalys) v Secretary of State for the Home Department  4 WLUK 86. Here, the claimant sought to challenge the secretary of state’s decision to continue to detain him.
The claimant argued not only that he was awaiting the outcome of his appeal against the deportation order requiring his removal, but also that travel restrictions resulting from the pandemic rendered it essentially impossible for the Home Office to remove him to Lithuania within a reasonable timeframe.
Furthermore, building upon concerns of medical experts around the ability of IRCs to manage suspected cases of Covid-19, the claimant argued that his continued detention in what is in fact a ‘congregate setting’ was directly contrary to government guidance. This was particularly so in light of his serious underlying medical conditions and his consequent identification by an IRC doctor as an ‘adult at risk’.Securing agreement for their release does not represent a solution to all of their problems
The claimant argued that his continued detention was a breach of his fundamental rights as protected by article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment. Under the article, the secretary of state has a duty to protect persons who are detained by the state from death or serious harm. In the circumstances, it was argued that the claimant’s continued detention, and/ or the defendant’s failure to put in place appropriate arrangements to mitigate or remove that risk, amounted to inhuman or degrading treatment.
A hearing was listed quickly by the court to determine the claimant’s request to be released on an interim basis, in view of the risks of his continued detention and the impossibility of his imminent removal. The claimant was granted permission to apply for judicial review, with the judge going so far as to say that he had established a strong prima facie case for his release. Directions were given for the full hearing to be expedited and the Home Office subsequently agreed to release him on immigration bail.
This case is just one of many being argued on behalf of immigration detainees. Recent weeks have seen the release of large numbers of people from the high-risk setting of detention centres. The work done in securing the release of these people, whether on bail or by way of judicial review proceedings, has been urgent and necessary.
Securing agreement for their release does not represent the end of the story for most, however; nor is it a solution to all of their problems. Individuals seeking release from IRCs can face obstacles such as difficulty securing accommodation that complies with social distancing measures and meeting any bail requirements put in place by the Home Office.
Many detainees who do not have families or friends to accommodate them are completely reliant on the Home Office’s provision of accommodation before they can be released. Section 4(2) of the Immigration and Asylum Act 1999 allows for the provision of support to refused asylum seekers. The support consists of accommodation and £35.39 a week via a payment card, if food and other items are not provided. Courts often order the release of detainees on the principle that accommodation is provided, only for the Home Office to then fail to provide it.
Individuals who have not made an asylum claim may apply for accommodation. However, there is no proper, transparent application process for such accommodation and, in a response to a freedom of information request made by Bail for Immigration Detainees in 2018, the Home Office confirmed that it had only granted 24 addresses in the first half of that year.
Once in accommodation, individuals may face uncertainty about the level of financial support they are provided. Many continue to have to grapple with health conditions that may have deteriorated due to the impact of detention.
In the medium term, the unsettled immigration status of these individuals means that they will likely still face the threat of deportation and therefore re-detention once the pandemic is under control. The system of immigration detention remains deeply flawed and in need of real change.
Making concessions for the exceptional circumstances arising from Covid-19 has allowed us to imagine a world in which immigration detention centres may not be necessary, or at least used far less often. The release of large numbers of immigration detainees, including a number who are ostensibly ‘high-risk’, demonstrates the ability of the state to conceive of better balancing the safety, well-being and human rights of detainees with the need to protect the public interest. Indeed, the events of recent months suggest the very real possibility of a better way, which could and should become an everyday reality and not just a response in a crisis.
Rachel Harger is a human rights lawyer based at Bindmans LLP, who specialises in actions against the police and Home Office. She has acted for a number of detainees fighting for release during the current pandemic, including in the case of R (on the application of Zalys) v Secretary of State for the Home Department  4 WLUK 86
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