Immigration detainees in the UK face the largest detention estate in Europe, with physical infrastructure and regimes of surveillance and control adapted from penal institutions. Because the UK has no time limit on stays in detention, the psychological harm to detainees can be serious. An upper threshold would go some way to correct this deficiency and its harms. Consideration must also be given to replacing detention altogether with non-custodial, community-based programs of assisting, monitoring, and humanely shepherding migrants through their status regularisation processes, writes Stephanie Silverman.
Under the administrative authority of the Home Office, about 30,000 foreign nationals were held in the 11 UK immigration removal centres (IRCs) last year. Around half of these ‘detainees’ were asylum seekers. Officially, detention should be a “last resort” and for the shortest time possible. It is meant to be administrative, non-punitive, and discretionary in the UK. In other words, periods of immigration detention must be targeted at certain people for reasonable, immigration-related reasons and without prejudice or the intent to punish.
Current policy allows for detention when the Home Office wishes to accomplish one or more of the following with a foreign national: establish a person’s identity or basis of an asylum or immigration claim; effect removal from the country; hold a person awaiting a decision to grant leave to enter the UK; hold a person who is facing removal to another EU country under the “Dublin System” of examining asylum claims in Europe; and prevent a person from absconding before his or her immigration status is resolved. Although the rest of the EU is bound by the Returns Directive and most countries have time limits on stays in detention, the UK’s lack of upper time limits means that immigration judges rely on vague case law on the practical meaning of a “reasonable” amount of time in detention.
Immigration detainees are held out of sight – and out of mind – of the general public. As such, the ethical, financial, political, and social issues of detaining migrants and asylum seekers are kept mostly hidden from everyday British politics and policy. Recent Parliamentary and Home Office developments as well as ongoing peaceful protests by detainees across the UK, however, have launched immigration detention into the national spotlight.
First, there was the 9 February 2015 announcement by the Home Secretary of her decision to commission a 6-month review into vulnerable persons’ welfare in detention to be conducted by the former prisons ombudsman, Stephen Shaw. This announcement was preceded by the official publication of a Tavistock Institute report into mental health issues in immigration detention and that of an HM Chief Inspector of Prison’s report that included documentation of a child being detained at IRC Campsfield House for 62 days “by mistake”.
Next, on 2 March, Channel 4 News showed an undercover documentary secretly filmed from inside a notorious and difficult-to-access IRC, Yarl’s Wood in Bedfordshire. Channel 4’s graphic footage shows staff uttering racist, violent, and derogatory comments about the detainees. For example, one officer says “They’re animals. They’re beasties. They’re all animals. Caged animals. Take a stick with you and beat them up. Right?” This was followed the same week by Channel 4 undercover footage of conditions in Harmondsworth IRC.
Also in March, and perhaps under the pressure of increased scrutiny, the Home Office scrapped its plans to double Oxfordshire’s IRC Campsfield House from 276 beds to 566; this plan to transform Campsfield House into one of the largest detention facilities in Europe had been vociferously opposed by campaigners, the local MP, and detainees and their allies.
Perhaps most crucial for following the currents in UK detention policy, the All-Party Parliamentary Group (AAPG) on Refugees and the APPG on Migration published their much-anticipated Report into the Use of Immigration Detention in the United Kingdom on 3 March 2015. The 80 some odd pages of the Report resulted from a cross-party inquiry launched on 7 July 2014 and chaired by Sarah Teather MP. The inquiry canvassed 182 written submissions and three oral hearings wherein NGOs, medics, civil servants, and current and former detainees testified about the detention estate. Committee members visited detention sites and took a fact-finding trip to Sweden to learn about that country’s use of detention and so-called Alternatives to Immigration Detention Programs (“Alternatives”).
The Report recommends a laundry list of improvements to detainees’ basic quality of life, focusing on inadequate healthcare, de-individualised decision-making, poor access to high-quality legal advice, substandard treatment for pregnant women, (female) victims of trafficking and rape, and IRC internet availability. Dismayed at the costs to the detainees and society of a limitless detention period, the Report takes the extra step of setting 28 days as an upper threshold. Of interest to detained women in particular, the report also recommends that LGBTI and female victims of rape and sexual assault be exempt from regular, administrative detention.
Detainees have been pushing for reforms in the wake of these acknowledgements of their plights. Following the Channel 4 News documentary, Yarl’s Wood detainees, including pregnant women, responded by staging demonstrations inside and outside of the IRC, including writing “We are not animals” on their T-shirts. Shortly thereafter, scuffles broke out at another IRC, this time The Verne in Weymouth; this uprising was prompted by allegations that guards assaulted an inmate who attempted to harm himself. Reports have also emerged of peaceful protests and hunger strikes at IRCs Colnbrook and Harmondsworth in London, Morton Hall in Lincolnshire, Dungavel in Scotland, and both Tinsley House and Brook House near Gatwick Airport.
Whether this increased attention – and resistance – will lead to reform is still unknown. As it stands, the UK detention estate is the largest in Europe and among the most developed and complex in the world. Its physical infrastructure and regimes of surveillance and control are adapted from penal institutions. The HO operates or subcontracts management of its IRCs to private firms and HM Prison Service. Penal-like characteristics include CCTV and other electronic surveillance mechanisms; the use of solitary confinement; transport vans with bars, escorts, and handcuffing of detainees travelling to other centres, to court, or to receive medical attention; and the heavy-handed use of guards. Additional sites of detention include prisons, interdiction and reintegration units abroad, and special facilities for families, including a “a pre-removal accommodation centre” in Pease Pottage, West Sussex known as Cedars.
Dismantling this leviathan is a tall order. Yet, as the Report notes, radical change is needed to ensure that this inquiry does not fade into insignificance like efforts before it. In my opinion, the best reform tabled by the Report is the naming of 28 days as an upper time limit. The Detention Forum (an umbrella group of NGOs interested in detention) had suggested, and campaigned for, the establishment of this very threshold of “allowable” days in UK immigration detention. The foundational detention law, the Immigration Act 1971, failed to specify an upper time limit, and there had been no (public) official moves to institute a maximum time period.
The harms of detention with no time limits are serious. Psychiatrists have described as mental trauma the experience of coping with the “unknowningness” of not having a release date like in the criminal system. Home Office statistics show that, in the year ending March 2014, while 61 per cent of detainees had been in detention for less than 29 days, 6 per cent had been detained for more than 4 months with 175 individuals held for between one and two years and 39 for two years or longer. Further, as Detention Action analysis demonstrates, about 62 per cent of migrants leaving detention after more than a year are released into the community while a minority of 38 per cent is removed from the country. As such, government wastes around £75 million per year by detaining migrants who are ultimately released.
An upper threshold would go some way to correct this deficiency and its harms. But what would happen to the people whose claims had not been resolved within 28 days? I would hope that pressure to resolve their cases would not hinder their rights to due diligence in mounting their claims to stay. Victims of trauma and trafficking, for example, need time to process their experiences before being expected to tell and defend their stories of persecution before a civil servant or an immigration judge. Another worrying example would be an underage asylum seeker from a state that does not, or cannot, issue documentation needed for successful proof of age, including Somalia, Haiti, Eritrea, and North Korea. The adversarial immigration and refugee status determination system in the UK means that the credibility of a person’s narrative directly impacts chances to stay. As such, a 28-day time limit needs to be accompanied by a schedule of resources, such as legal access and aid, counseling, access to the outdoors and networks, and language interpretation (all of which could be paid for by the savings of having fewer people in long-term detention). Accordingly, although the Report’s suggestion of a 28-day limit is a significant addition to the conversation, “fixing” the problems of indefinite detention is not as simple a step as tweaking the legislation to include a time limit.
The framework of the Report can only ever offer second-best solutions. The most notable of these is to implement thresholds of minimum standards of treatment in detention, including an upper time limit. Yet, the conversation must not stop here. Consideration must be given to eliminating detention and/or to replacing it altogether with non-custodial, community-based programs of assisting, monitoring, and humanely shepherding migrants through their status regularisation processes. Without this piece of the puzzle in sight, we miss the point that the conditions inside the IRCs are part and parcel of a larger immigration and asylum control apparatus that enabled them in the first place.
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Stephanie J. Silverman is taking up a SSHRC Postdoctoral Research Fellowship at the Graduate School of Public and International Affairs, University of Ottawa, and is the co-editor of Immigration Detention: The Migration of a Policy and Its Human Impact (Routledge).