Almost 30,000 people were detained under immigration powers in the UK last year. Executive and judicial officials have been given generous powers to detain. But, legally, they are not unfettered. Their purpose is to effect removals from the UK, and it is unlawful to maintain detention past the period necessary for this.
In law, immigration detention must not under any circumstance operate punitively or without a legitimate purpose (I say ‘legitimate’ reluctantly: thinking beyond the confines of the current legal framework, no one should be stripped of their fundamental right to liberty for simply being in a public place that is cordoned off to them by man-made borders).
But it does. National Statistics show that only 48% of those detained were eventually removed from the UK in the year to March 2017. The detention of 52% of the individuals was ultimately pointless under the Home Office’s own policy.
The 48% of removals were themselves tragic outcomes. Individuals are removed to countries whose destructions in some cases engage the UK government’s complicity through its history of merciless colonial pursuits and its on-going arms deals that profit from conflict and militarised borders (this month, London is hosting the Defence and Security Equipment International arms fair); and to countries where some individuals desperately maintain they will be at risk of persecution and or death.
The removal process on the day is also traumatising. The Independent Monitoring Board’s report on the 2016 removals it monitored states it ‘is not satisfied that all returnees are treated humanely in every aspect of their removal on the day’.
As for unmonitored removals, this video footage, recorded by a passenger, shows an individual surrounded by three escorts as one repeatedly slaps his face. In October 2010, Jimmy Mubenga was killed when G4S escorts restrained him using ‘unreasonable force’ during his removal. This resulted in an unlawful killing verdict after an inquest – but no criminal convictions.
Immigration detention violates the values and features underpinning our democracy: equality, pluralism, and tolerance. But when an individual is deprived of their liberty in the absence of a real prospect of removal within a reasonable time, the violation is not just one of morals, but also of the law and published policies.
Without conceding the moral legitimacy of immigration detention, this article assesses how the Home Office is in some cases over-reaching its current immigration powers, and some of the resultant impacts on individuals.
To do so, I will focus on the detention of non-British individuals who have completed their prison sentences but for different reasons cannot be removed from the UK. This focus seeks to give some voice to otherwise silenced individuals, whose ‘foreign’ statuses and previous convictions render them some of the most ostracised and vulnerable individuals in society and legal processes.
When a British prisoner has served half their fixed sentence, they can be released from prison subject to a licence and or further supervision (note: their release date and conditions will depend on when they offended and the length of their sentence). Particular restrictions and obligations are imposed on the individual for a specified period, to reduce their risks of reoffending and to encourage their reintegration into society.
For many non-British individuals, it is a different story. Early release on licence, or at least release upon the completion of their sentence, provides some hope. Until the individual receives immigration papers stating they will be detained under immigration powers at the end of their criminal sentences.
The discrepancy between the treatment of British and non-British individuals is morally shameful. But it is permissible under the Home Office’s policy. As long as there is a real prospect of the non-British individual’s removal from the UK within a reasonable time.
Often, there is no such prospect. The barriers to removal vary; but may include outstanding legal proceedings, the absence of a travel document, or being assessed as unfit to fly because of existing and often untreated health problems.
Without regard to these barriers and its own rules, the Home Office often uses individuals’ risks of reoffending and harm to the public as arguments in favour of their indefinite detention.
On 14 March, at a parliamentary debate on immigration detention, the then minister for immigration, Robert Goodwill, said: “many of those who are detained for longer than usual are foreign national offenders and are assessed to pose a risk to the public.”
He summed up the government’s often misguided use and understanding of immigration detention when he asked Anne McLaughin, who sparked the debate, whether she was “suggesting that those people should be released, even if they pose a risk to the public”.
Robert Goodwill’s stance is shocking, considering that the Home Office’s own detention policy begins with the general presumption of liberty, and is intended to avoid the needless detention of individuals, with or without a criminal history, especially when there are community-based alternatives to detention such as reporting conditions or electronic monitoring.
Shocking too is the blatant disregard for the rule of law. The rule of law has no agreed academic or legal definition. But in general, it provides for the accountability and scrutiny of the government, and individuals’ equal treatment and access to justice under the law.
This principle is enshrined in documents and laws such as the Magna Carta 1215, the Habeas Corpus Acts, the Petition of Right 1628, the presumption of liberty, and human rights. As is the individual’s right to liberty.
It is difficult, if not impossible, to reconcile these cherished safeguards with the government’s cyclical and arbitrary use of immigration detention against irremovable individuals.
Bail for Immigration Detainees, an independent charity specialising in the provision of free legal advice and representation in immigration bail proceedings, reported (see ‘Mind the Gap: Immigration Advice for Detainees in Prisons’) that some individuals ‘are given less than 2 weeks’ notice that they will be held in immigration detention beyond the end of their criminal sentence, with many told on the day they were due to be released.’
Individuals are then detained in prisons or in immigration removal centres. In either setting, their access to justice is neither always effective nor equal, and their right to liberty is often a luxury they cannot afford.
Those detained in prisons under immigration powers are no longer serving criminal sentences. So they should not be subject to the same prison regime as those with extant criminal sentences. Yet, instead of being detained under Detention Service Orders like those held in immigration removal centres, they are detained under Prison Service Orders like serving prisoners. This alone gives immigration detention punitive features.
To appear less punitive though, detainees are given more privileges and have fewer restrictions. In theory.
But the government’s ruthless public service cuts and outsourcing arrangements with private security companies, which prioritise profits over basic rights and which exemplify some of the most sadistic forms of capitalism where money is made at the expense of liberty and humanity, have led to a prison crisis.
Prisons are now overcrowded and understaffed. So it is not always possible to give eligible individuals what they are entitled to, such as more association or communication time; the latter of which is necessary for the purpose of seeking legal advice to effectively challenge detention. According to National Statistics, there were 337 immigration detainees in prison estates in the UK on 3 April this year.
Those detained in immigration removal centres do not have it much better. They are subject to detention regimes, restrictions, and limited legal and medical services.
Our own courts have condemned the use of immigration detention against irremovable individuals, even those with criminal records and harm risks.
Let us turn to a case from 2016, Babbage v Secretary of State for the Home Department. This concerned the immigration detention of an individual with a serious criminal record inclusive of dishonesty, drugs and violence related offences. The Probation Service initially assessed his risk of harm as ‘medium’, and later as ‘moderate’. His risks of reoffending and harm were considered to be matters of ‘paramount importance’. But they could not be ‘decisive’, as the ‘acid test is always whether there is a realistic prospect of effective return’.
The Zimbabwean applicant did not have a valid passport and was unwilling to return to Zimbabwe. Zimbabwe did not accept forced returns. So the applicant’s removal from the UK was impossible, and his detention unlawful.
Detention in these circumstances simply extends served prison sentences, punishing individuals twice for the same offence. This use of detention serves no legitimate purpose in law.
How much does this cost the taxpayer? As reinforced by a briefing paper, ‘Immigration detention in the UK: an overview’, the Home Office’s Annual Report and Accounts for 2015-2016 states that in the year ending 31 March 2016, the detention regime cost £125 million. Embarrassingly for the pro-austerity government, between 2012 and 2015, a total of £13.8 million was paid out in compensation to 573 unlawful detention claimants.
Still, the detention of irremovable individuals goes on and on, without limit.
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