A woman in Yarl’s Wood Immigration Removal Centre has tested positive for Covid-19. Locked up in crowded, ill-equipped and unsanitary facilities, all detainees are now at risk of this potentially deadly fate.
It is estimated that over 900 people are currently detained under immigration powers in the UK. The legal test for immigration detention is whether there is a real prospect of removal from the UK within a reasonable timescale. If not, the person must be released.
As of 24 March 2020, Covid-19 had killed at least 18,278 people worldwide. The international travel bans recently implemented in response to the pandemic make it highly unlikely that removals and deportations can go ahead within a ‘reasonable timeframe’ – which the Home Office defines as four weeks. In any case, detainees presenting symptoms or testing positive would be deemed unfit to fly.
During a parliamentary debate on 23 March 2020, Stuart McDonald MP said: ‘We know now that there is no realistic prospect of immigration removals taking place imminently, and imminent removal is of course the legal threshold for justifying detention in the first place. The clear consequences of these two facts, when we bring them together, is that continued detention is not only morally wrong, but it undermines the public health response to the coronavirus outbreak and is almost certainly illegal.’
Yet, in response to one application for bail citing the threat of Covid-19 to people in detention, supported by Bail for Immigration Detainees (BiD), the Home Office announced: ‘The risks of contracting Covid-19 are acknowledged during the global crisis, however these risks exist outside of a prison environment as much as inside one.’ The current Home Office stance is to keep the situation ‘under review’.
Detention Action, supported by other organisations, has also challenged the use of detention during the pandemic, and has called into question the Home Office’s compliance with human rights law, including the right to life. The challenge relies on the expert evidence of Professor Richard Coker of the London School of Hygiene and Tropical Medicine. He concludes that detention centres present ideal incubation conditions for the spread of Covid-19, capable of quickly infecting 60 per cent of detainees.
That legal challenge resulted in the mass release of almost 300 detainees on 21 March. But the Home Office has maintained the detention of approximately 900 people, and published Covid-19 guidance for detention facilities. The vague guide provides for ‘protective isolation’, frequently cleaning and disinfecting objects, and ‘cohorting’ measures which would include ‘the gathering of potentially infected cases into a designated area’. It is unclear, at best, whether such measures are capable of effectively counteracting the high risks posed to detainees.
In the confines of detention, social distancing and maintaining personal hygiene are easier said than done. The challenge by Detention Action cites the worrying conditions detainees are subject to, including the ‘cohorting’ of vulnerable people, a detainee being left to clean others’ cells despite presenting symptoms, and a lack of running water and basic sanitary items including soap.
There are also concerns about access to adequate healthcare in detention facilities. Celia Clarke, the director of BiD, said: ‘Immigration detainees are deprived of their liberty in appalling conditions with inadequate access to healthcare. These create fertile conditions for the spread of coronavirus and we are very concerned that the situation in immigration detention could quickly reach a crisis point if the government does not immediately release people.’
On 24 March, Detention Action reported: ‘One client in Yarl’s Wood has asthma & is at high risk from Covid-19. She has no inhaler & hasn’t been given one’ – a ‘client with #COVID19 symptoms taken to an airport for removal only to be sent back to detention. Now has fever and held in isolation.’
Campaigners have good reason to lack confidence in the ability of the Home Office, or the private companies it contracts to run various detention centres, to protect the vulnerable people that are administratively detained. Earlier this month, an inquest concluded that neglect and serious failures by ‘the Home Office and across all agencies in immigration detention’ contributed to the death of Prince Kwabena Fosu, aged 31, in 2012. The cause was ‘sudden death following hypothermia, dehydration and malnourishment’. The circumstances? ‘Six days of purported checks every 15 minutes showed no positive evidence that Prince had eaten, drunk or slept and that he was naked.’ The inquest also reported that: ‘His bedding had been removed on the first day leaving him with nothing soft to sit or lie on and there was nothing else in his room save for it being smeared with his own faeces, urine and food debris.’
One of the most shocking features of this tragic case is that despite both medical and detention staff recording these instances, Prince was failed by four GPs, two nurses, two Home Office contract monitors, three Independent Monitoring Board members, various custody officers and managers.
This week, a Home Office spokesperson told The Guardian: ‘Immigration enforcement is responding to the unique circumstances of the coronavirus outbreak and following the latest guidance from Public Health England. This includes providing soap and cleaning materials to all detainees. Decisions to detain are made on a case-by-case basis and kept under constant review, but our priority is to maintain the lawful detention of the most high-harm individuals, including foreign national offenders.’
Rather than hiding behind the popular ‘foreign national offenders’ trope – which is often used to legitimise the cruel practice of immigration detention – the Home Office must remind itself of the test for detention and the duty of care owed to all detainees. If a person cannot be removed within a reasonable time, detention must cease. The questions we must ask are simple ones: Is that test really met in today’s unprecedented emergency situation? If not, why haven’t all detainees been released?
Annahita Moradi is a barrister and member of the Red Pepper Editorial Collective
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