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Immigration detention fails the fairness test

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Written by: Richard Atkins QC, Chair of the BarBar Council

The indefinite detention of migrants by the HOme OFFice is a stain on our justice system, says Chair of the Bar.

Many people will be aware that migrants are routinely detained by the Home Office

to facilitate their removal from the UK. What is less well known is that there is no limit on the length of time for which they can be held.

This indefinite detention is a stain on our justice system. Thankfully though, MPs will soon have the opportunity to expunge it when the Government’s Immigration Bill returns to the House of Commons for report stage. A cross-party group of MPs is calling for a 28-day time limit on detention and for bail hearings to take place within 96 hours of detention. All being well, these proposals will be put to a vote.

As MPs contemplate this important issue, it is worth highlighting four of the problems identified by research commissioned by the Bar Council, ‘Injustice in immigration detention’, produced by Dr. Anna Lindley of SOAS.

First, there is no immediate judicial oversight following the initial decision to detain. It can take months for a detainee to get a bail hearing before a judge and even then many people either appear without legal representation or end up relying on lawyers working for free.

Second, the decision to detain is taken by Home Office officials and the quality of decision-making by those officials has been found to be unacceptably poor. Dr. Lindley’s research painted a picture of officials acting with little accountability, unable or unwilling to pursue obvious and viable alternatives to detention.

Third, detention places a heavy and unnecessary burden on the taxpayer. Between April 2013 and March 2017, the Government spent £523.5m detaining people at a cost of around £30,000 per person per year. In 2018 alone, 25,000 people were detained at a cost of around £100m. On top of that, the Government paid over £21m in compensation in the five years to 2018 to people who had been unlawfully detained. Over half of those detained are at the end released back into the community.

Fourth, such long periods of detention are clearly disproportionate. In 2017 more than 10,000 people were held for more than 28 days. Many were held for much longer, and some were held for over a year. As one judge told Dr. Lindley, “simply too many people are being banged up.” Whilst the Home Office routinely argues that detention is necessary to prevent people from evading deportation, pilot studies show compliance rates of 90-95% for those who are released pending a decision on their removal. Rather than remanding suspects in custody, the criminal justice system has long used a range of alternatives such as reporting requirements, residency conditions, and sureties. It is not clear why the same mechanisms cannot be used to reduce immigration detention. As Stephen Shaw said in his review, “detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK”.

The proposed amendments to the Bill have significant support from senior Conservative MPs as well as from members of the Opposition frontbench, the Liberal Democrats, the SNP, and the DUP. The amendments are designed to ensure that immigration detention is used sparingly, only where necessary, and for the shortest period possible. This is entirely in line with the Home Office’s own guidelines.

Parliamentarians might well consider two examples in Her Majesty’s Inspectorate of Prisons Annual Report 2017/18 which illustrate just how poorly the system currently operates: ‘[A] blind detainee on an ACDT [self-harm monitoring] had been detained for over a year and a wheelchair user who set himself on fire had been held for 15 months’.

As Chair of the Bar, I take great pride in promoting our justice system, but indefinite detention goes against the basic principles that underpin it. This practice tarnishes our brand and has no place in our civilized society. It is high time for a time limit.

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