February 24, 2011 : Immigration Prisons: Brutal, Unlawful and Profitable ? Part 1

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The government's decision to end child detention for immigration purposes in 2010 was the result of long years of campaigning by dedicated grassroots activists, as well as detainee support groups, NGOs and mainstream media. The end of this cruel and inhumane practice has, however, served to somehow legitimise the detention of adults. Fewer people now appear to have the political will to argue that immigration detention should be stopped altogether. Using Yarl's Wood, where children and their families were incarcerated, as a case study, this briefing is intended to demonstrate that the impact of immigration prisons on adult refugees and migrants is no less cruel, inhumane and, in many cases, unlawful.

The authors of this briefing believe that no matter what findings and recommendations such reports may make, the immigration authorities will not listen, much less act, unless they are compelled to. As the references and sources of this briefing show, there have been tens of similar reports highlighting these same issues. What has come out of these reports? Unfortunately very little, except for superficial 'improvements' here and there, often to make the detention system more efficient. The institutional racism inherent in the immigration and asylum regime, supported by racist political rhetoric and mainstream media coverage and coupled with the cost-cutting policies of the profit-driven contractors running these immigration prisons, often make it difficult for many ordinary people to see what's wrong with this system. But many do and will continue to fight for real justice.

Part 1: Immigration prisons

Nearly 30,000 people are detained in the UK every year for immigration control purposes - without charge or trial, and with no judicial supervision or time limit. Most of these are asylum seekers, but some are undocumented migrants or foreign nationals who have finished a criminal sentence and are then deported as a secondary punishment.[1] Until the detention of children ceased in late 2010, nearly 1,000 children were detained every year.

These 'unpeople' are held in 11 special prisons across the UK, variously called 'detention centres', 'immigration removal centres' and so on.[2] Some are also held in police stations and normal prisons. It costs between £120 and £130 per day to keep a person in detention, and detaining a family of four for six weeks costs over £20,000.[3]

According to the government's Detention Centre Rules 2001, the purpose of detention centres is "to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and the right to individual expression."[4]

Whilst enshrining the right to liberty for all, except in certain circumstances, Article 5 of the European Convention on Human Rights, which was incorporated into domestic law under the 1998 Human Rights Act, allows for "the lawful arrest or detention of a person to prevent his [or her] effecting an unauthorised entry into the country or a person against whom action is being taken with a view to deportation or extradition." This detention must, however, be "proportionate to the objective" (of removal) and "alternatives to detention must be considered."

Asylum seekers and other refugees and migrants are detained under powers conferred on the Secretary of State for the Home Department under several Immigration Acts passed over the course of the past few decades.[5] The detention of persons subject to immigration controls was first introduced with the 1920 Aliens Act and expanded further with the 1971 Immigration Act. The decision to detain people who have been refused leave to enter or remain in the UK, or who are required to submit to further examination at ports of entry, was henceforth regarded an "act of administrative discretion" and these people were now liable to be detained for an indefinite period of time. At the time, however, it was never intended that these powers would be used to routinely detain asylum seekers. Rather, they were intended to briefly detain, pending their imminent removal, those refused entry to the UK as visitors, students or workers. The Nationality, Immigration and Asylum Act 2002 further extended the powers of Home Office caseworkers to authorise and prolong detention. Asylum seekers and other migrants, including their dependants, can be detained at any stage of their application to enter or remain in the UK: on arrival, with appeals outstanding or prior to removal.

By 2005, the Labour government's agenda and the public opinion had shifted so much to the right that the government's five-year strategy for immigration and asylum was able to state, "Over time, as asylum intake falls and removals increase, as the UK negotiates even more effective return agreements, we will move towards the point where it becomes the norm that those who fail can be detained."[6] In fact, the government had already looked into the feasibility of introducing an Australian-style detention system, whereby all asylum seekers are detained on arrival.[7] In 2005, the government announced its intention that 30% of new asylum applicants would be processed through the new Detained Fast Track system (see below). As a result of these policy shifts, the UK's detention estate has been rapidly expanding, with an arbitrary target of 4,000 detention spaces by 2012.[8]

The general rationale behind immigration detention is the 'risk of absconding.' According to the government, "the removal of those found to be living in the United Kingdom illegally must be a central tenet of any coherent immigration policy. Those who fail to leave voluntarily need to be apprehended and then deported. Deportation rarely happens immediately after apprehension so there is a subsequent need for some form of detention or monitoring as a prelude to the removal of those deemed to have no right to live in the United Kingdom."[9] There is no evidence, however, that people, especially families, systematically 'disappear'. In a report on the detention of children published in November 2010, the House of Commons Home Affairs Committee wondered: "We do not understand why, if detention is the final step in the asylum process, and there is no evidence of families systematically 'disappearing' or absconding, families are detained pending judicial reviews and other legal appeals."[10] The Home Office's argument is in essence that 'effecting removal' or the risk of absconding or of re-offending outweigh the presumption in favour of temporary admission or release, no matter how speculative and arbitrary such a decision may be.

Unlike many European countries, there is no legal limit on how long people can be held in immigration detention in the UK, and decisions to detain are not subject to automatic judicial oversight. The term 'administrative detention' means that no form of judicial scrutiny is applied to these decisions and detainees do not have the right to an automatic bail review, as is the case in the criminal and civil justice systems.

According to Home Office statistics, out of 12,820 people who left detention in the first half of 2010, only 8,140 were deported (less than 63.5 per cent).[12] The rest were either released on bail or granted temporary admission or leave to remain, bringing into question why they were detained in the first place. In fact, this figure includes some 2,880 people (22.5 per cent of the total) who were deported after being held for a short period of time at so-called short-term holding facilities (secure cells attached to immigration reporting centres, ports and airports around the country). The number of people who were taken to airports from detention centres proper is only 5,255 (41 per cent). Statistics for previous years show similar trends.

It is worth pointing out that the Home Office publishes very limited data on its use of immigration detention, making it difficult, to say the least, to hold the government to account with respect to its detention policies. The data published consists simply of monthly or quarterly snapshots of the detention estate on a particular day of the year, as opposed to tracking over time. Thus, there are no detailed statistics available, for example, on the number of people held in detention in the UK every year, the length or outcome of detention and so on.

'Last resort'

Detention is supposed to be "a final step" in the asylum or immigration process, which often starts with an application to enter to remain in the UK. The primary source of the detention policy is Chapter 55 of the UKBA's Enforcement Instructions and Guidance.[13] It is useful to reiterate its key elements:

- Presumption in favour of liberty in all cases (55.1);

- Identification of circumstances where detention will "most usually be appropriate" (55.1.1);

- "To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy" (55.1);

- "Detention can only lawfully be exercised under these provisions where there is a realistic prospect of removal within a reasonable period" (55.2);

- Levels of authority for detention in specific cases (55.5) and timetable of detention reviews by officers of increasing seniority (55.8);

- Duty to provide written reasons for detention and detailed overview of detention forms (55.6);

- Policy in relation to 'special cases', including pregnant women (55.9);

- Identification of persons considered unsuitable for detention (55.10).

We will be referring back to these rules when discussing the various unlawful aspects of immigration detention, particularly in relation to Yarl's Wood. Also relevant are the Detention Centre Rules,[14] especially Rule 35, which concerns special illnesses and torture claims, and the Asylum Policy Instructions on gender issues in the asylum claim.[15]

Fast-tracked

In May 2005, the Home Office introduced a New Asylum Model (NAM), under which asylum claims are put into one of five categories: third country cases; unaccompanied minors; potential non-suspensive appeal (or 'white list'); detained fast track; and general casework. The decision as to which category a case belongs to is made by the Home Office 'caseowner' after the Screening Interview with the asylum applicant. The Fast Track scheme had been piloted at Oakington detention centre since March 2000 and at Harmondsworth since 2003.

Any case from any country can be fast-tracked if it appears, during the Screening Interview, that the case is 'straightforward' and 'can be dealt with quickly.' Asylum seekers on Fast Track are put in detention straight away until their case is decided. Being in detention, and with a very tight timescale, these people have very little time to find adequate legal representation and prepare their evidence. Many of them have sensitive and complex claims such as sexual violence, female genital mutilation, trafficking and domestic abuse. The Detained Fast Track process is currently in operation at Harmondsworth for single men and at Yarl's Wood for single women.

Research by Bail for Immigration Detainees (BID) has shown that the success rate for fast-track appeals determined at Harmondsworth and Yarl's Wood is only 3% and 1% respectively, compared to 14% to 28% for those with appeals heard outside of the Fast Track system.[16] In 2010, a report by Human Right Watch concluded that the system "doesn't meet even the basic standards of fairness. It is simply not equipped to handle rape, slavery, the threat of 'honor killings' or other complex claims, and yet such cases are handed to it regularly."[17] This is in clear contradiction with Chapter 55 of the Enforcement Instructions and Guidance, particularly the presumption in favour of liberty in all cases and the identification of persons considered unsuitable for detention. One can, therefore, argue that detention under the Detained Fast Track system is in many, if not all, cases unlawful.

Quality of decision-making

Prior to the introduction of Detained Fast Track, research by the University of Cambridge had highlighted that immigration officers could be subject to peer pressure when deciding to detain someone, as they may feel duty-bound not to reverse or challenge another colleague’s decision. The research revealed that 51 percent of immigration officers thought that preventing asylum seekers from absconding was a main reason for detention; 15 percent that encouraging a claimant to withdraw their asylum application was a main purpose, whilst 13 percent gave deterring other people from claiming asylum as a main reason for detention.[18] If true, this would at least be in breach of Chapter 55.2, which states that detention "can only lawfully be exercised" where "there is a realistic prospect of removal within a reasonable period," i.e. the sole purpose should be removing people, not to deter or encourage them to give up their claims. The researchers also found that detention rates varied significantly between ports, suggesting that some immigration officers were using detention disproportionately. Caseworkers are given the power to make legally binding decisions on whether asylum seekers should be granted or refused asylum and detained after just five weeks of training.

In January 2011, Asylum Aid released a new report on the quality of initial decision-making in women's asylum claims. The report, entitled Unsustainable, found that women were too often refused asylum on grounds that were "arbitrary, subjective, and demonstrated limited awareness of the UK's legal obligations under the Refugee Convention."[19] According to the report, some 50 percent of the initial decisions made by UKBA caseworkers were overturned when subjected to independent scrutiny by immigration tribunals. The lawfulness of the decisions to detain some of these women should, therefore, also be questioned, particularly the identification of circumstances where detention will "most usually be appropriate" (Chapter 55.1.1 of the Enforcement Instructions and Guidance).

Immigration officers serve initial reasons for the decision to detain by way of a checklist. The checklist enables officers to indicate the reasons for detention that apply to a particular case. The use of a checklist has been strongly criticised by NGOs for being "too simplistic" to constitute a reasoned notification of the detention decision. Legal experts have further argued that the reasons given for detention are often vague and apply to most asylum seekers, the majority of whom are not held in immigration detention.[20] Again, this would appear to be in breach of Chapter 55.6, which concerns the duty to provide written reasons for detention.

Furthermore, in February 2010, a whistleblower caused a storm when she revealed that asylum seekers were "mistreated, tricked and humiliated" by staff working for the UKBA in Cardiff.[21] Louise Perrett also confirmed that interviews were conducted without lawyers, independent witnesses or tape recorders. If a case was difficult, she said, caseworkers were simply "advised to refuse it" and "let a tribunal sort it out." Only cases raised by MPs appeared to be dealt with properly.

Unlawful

Before we turn to Yarl's Wood and look at more detailed aspects of detention, it is worth noting that administrative detention under the various Immigration Acts is considered unlawful in the following circumstances:

- In the absence of power, wrong power used, or no authority;

- Where there is an existing power, if it is not exercised in a manner that is lawful on public law grounds, in particular if

(a) it is not of reasonable (prospective) duration;

(b) it is contrary to the substantive requirements of published policy;

- If it breaches Article 5 of the European Convention on Human Rights (ECHR), which provides that everyone has the right to liberty and security.

Over the years, there have been many cases in the UK and European courts where the detention of appellants was ruled to have been unlawful. For instance, a number of High Court and Immigration Tribunal judges have ruled that the detention of appellants was unlawful where there was "no prospect of removal within a reasonable period", either because the authorities in the country to which a detainee was to be deported, such as Iran, did not accept that he or she was a national of that country,[22] or because there was no safe route to return them to war-torn countries, such as Iraq, within a reasonable time,[23] or because the appellant had further representations or appeals outstanding[24] or had submitted new evidence that the Home Office had not considered.[25] The detention of people with mental illnesses[26] and victims of rape and torture [27] has also been found unlawful and in breach of Rules 34 and 35 of the Detention Centre Rules 2001. The UKBA's failure to consider referring such claimants to the Medical Foundation for the Care of Victims of Torture was found to be contrary to a policy set out by Baroness Scotland that the agency should consider such referrals.

Yet, for largely political reasons, all these cases do not seem to have been sufficient ground for questioning the lawfulness of the detention system as a whole. Whenever faults and abuses are acknowledged, they are deemed to be isolated cases, attributed to the bad works of some 'bad apples.' One can't but wonder: How many bad apples does it take to realise that it is the barrel that is rotten?

Yarl's Wood

Yarl's Wood is a purpose-built immigration prison operated by a private contractor, Serco Group Plc, on behalf of the UK Borders Agency under the Detention Centre Rules 2001. Located outside the village of Clapham in Bedfordshire, it was opened in 2001. The official name of the prison is Yarl's Wood Immigration Removal Centre.

Yarl's Wood initially accommodated 900 people in two blocks, making it the largest immigration prison in Europe at the time. The management of the centre was contracted to Global Solutions Ltd (GSL), which was then owned by Group 4 Amey Immigration Ltd, as joint venture of Amey Assets Services Ltd and Group 4 Falck.

In February 2002, the prison was burnt down following a protest by detainees that was triggered by a 55-year-old woman being physically restrained by staff. When the fire started, the centre manager ordered all staff to exit the building, locking the detainees inside the timber-framed building. It later emerged that the government had also failed to install a sprinkler system. Although there was an investigation, no members of Group 4 were ever prosecuted.[28] The centre was closed and the burnt B site demolished.

In September 2003, the undamaged half was re-opened after extensive rebuilding, with an initial capacity of 60. The centre's capacity was increased to 120 by August 2004 and to its full operational capacity of 405 by the end of 2005. The other half is still a wasteland.

In 2007, Serco Ltd took over the management, operation and maintenance of Yarl's Wood, which became the UK's main immigration prison for women and families (until the end of child detention in 2010), with 284 single female and 121 family bed spaces. The contract, which had been awarded in December 2006, started in April 2007 for an initial period of three years, with optional extension to up to eight years. Over the full eight years, the contract is valued at around £85m.[29]

In May 2008, the Home Office announced it would take forward planning applications to create extra spaces at the centre as part of its plans for "large-scale expansion" of Britain's detention estate, but the plans were shelved due to lack of funds.[30] During the first half of 2010, some 1,635 people entered Yarl's Wood. On 30 June 2010, a total of 285 adults were being held there, only 180 of whom were asylum seekers.[31]

Yarl's Wood consists of four units in a large, two-storey building. Until the detention of families was stopped in late 2010, there was a family unit (Crane), with a capacity of 121; a single women induction and first night unit (Bunting), with 42 beds; and two single women units (Avocet and Dove), with a capacity of 130 and 112 respectively. All Crane rooms, except one, are twin-bedded and interconnected in pairs to allow families to be located together. All Avocet and Dove rooms are twin-bedded, except for two single rooms in Avocet with some adaptations for people with disabilities. Most Bunting rooms, except three, are single. All rooms have simple en-suite toilet and shower facilities. The four units are connected by a central corridor, from which all ancillary areas, including the healthcare centre, can be accessed.

Detainees in Temporary Confinement (TC) under Detention Centre Rule 42 are held in the Kingfisher Separation Unit, in solitary cells called Removal From Association (RFA) rooms. Rooms in Bunting are also sometimes used for this purpose. During 2009, the Bunting RFA rooms were apparently converted into a 'family care suite'. Later that year, a new school building was constructed outside the main compound, formally opening in November that year. There is a Healthcare Centre on site, operated by Serco Health, which provides primary healthcare for detainees, but is not always adequately staffed. Secondary care is referred - at least in theory - to the local Primary Care Trust.



There have been numerous hunger strikes, riots and other forms of resistance by detainees in Yar's Wood over the years, the 2002 fire being the most famous one. In December 2001, just a month after the opening of the centre, the first hunger strike began with five Roma detainees refusing to eat. In November 2006, a group of detainees rioted after being denied watching a news report criticising conditions at the centre. In May 2007, a month after Serco took over the running of the centre, women detainees began a hunger strike in response to new measures introduced by the new management. Similar hunger strikes took place in June 2009 and February 2010. Both times detainees were reportedly met with violent assaults by Serco security guards attempting to break up the protests. In the latter, four of the women, singled out as 'ringleaders', were transferred to normal prisons and held under immigration detention, without charge, for almost a year.[32]

References

[1] The government and media hype about 'foreign national criminals' has led to thousands of migrants and refugees being deported after serving their sentences. Although some are convicted of serious offences, the majority are convicted of minor offences, such as shoplifting, often a result of immigration policies that pushed them into poverty and destitution. Many drug- or prostitution-related offences are also caused by this. Other common offences include using fake documents to work or enrol in college or open a bank account - again, a result of immigration policy that denies asylum seekers and other migrants the right to work; using false documents to either try and leave the country after their claims had been rejected and they give up on the system, or simply trying to enter the UK to seek refuge and safety, a universal right under international law. The use of this latter 'offence' to dismiss asylum claims has been condemned by many international organisation and even judges (see, for example, Robert Verkaik, 'Asylum-seekers put at risk by law, warns top judge', The Independent, 2 July 2008.

[2] The name of immigration prisons was officially changed from Detention Centres to Immigration Removal Centres (IRCs) with the Nationality, Immigration and Asylum Act 2002. However, legal studies exploring the difference between prison and immigration detention have concluded that "there is little practical difference between many of the features of immigration detention and imprisonment" and that "those held in immigration detention are in many ways treated like prisoners even though they have neither been convicted of, nor charged with, a criminal offence." (Groves, 'Immigration Detention vs. Imprisonment: Differences Explored', Alternative Law Journal, 2004.)

[3] Hansard, 4 Feb 2010: Column WA67. (hyperlink). The Home Office has consistently refused to reveal the total costs of operating detention centres for reasons of "commercial confidentiality." However, the annual budget for the Criminality and Detention Group, which oversees the detention estate, foreign prisoner removals and criminal casework, is just over £195 million. Home Affairs Committee, 'Minutes of Evidence', 16 November 2009. (hyperlink).

[4] Home Office, The Detention Centre Rules 2001, Rule 3(1). (hyperlink).

[5] The powers to detain include: Schedule 2, paragraph 16, Immigration Act 1971 (which states that immigration Officer may detain persons arriving in the UK pending examination and pending a decision to give or refuse leave to enter, and persons in respect of whom there are "reasonable grounds for suspecting" they have been refused leave to enter or are illegal entrants pending a decision whether to give directions and pending removal); Section 10(7), Immigration and Asylum Act 1999 (which extended the powers to detain to those liable to removal); Schedule 3, paragraph 2, Immigration Act 1971 (the Home Secretary's powers to detain pending deportation); Section 62, Nationality, Immigration and Asylum Act 2002 (which extended the Home Secretary's powers to detain further); Section 36, Borders Act 2007 (which introduced new powers to detain in relation to those liable to automatic deportation under the same Act).

[6] Home Office, Controlling our borders: Making migration work for Britain, February 2005. (hyperlink). p.10.

[7] Hansard, 27 Mar 2001: Column 246. (hyperlink).

[8] 'Large scale expansion of Britain's detention estate', Government News, 19th May, 2008. (hyperlink).

[9] House of Commons Home Affairs Committee, The Detention of Children in the Immigration System, First Report of Session 2009–10, printed 24 November 2009. (hyperlink). p.5.

[10] ibid. p.6.

[11] Home Office, Enforcement Instructions and Guidance, Section 55: Detention and Temporary Release - 55.1: Policy. (hyperlink).

[12] All official immigration and asylum statistics can be found here. The figures given above for the first half of 2010 are calculated from quarterly statistics.

[13] The Enforcement Instructions and Guidance can be found here.

[14] The Detention Centre Rules 2001 can be found here.

[15] The Asylum Policy Instructions can be found here .

[16] Bail for Immigration Detainees, BID Briefing paper on the Detained Fast Track, March 2008. (hyperlink).

[17] Human Rights Watch, Fast-Tracked Unfairness: Detention and Denial of Women Asylum Seekers in the UK, February 2010. (hyperlink).

[18] Weber and Gelsthorpe, Deciding to Detain: How Decisions to Detain Asylum Seekers are Made at Ports of Entry, University of Cambridge, Institute of Criminology, 2000.

[19] Muggeridge and Maman, Unsustainable: The Quality of Initial Decision-Making in Women's Asylum Claims, Asylum Aid, January 2011. (hyperlink).

[20] Weber, L., 'Down that wrong road: Discretion in decisions to detain asylum seekers arriving at UK Ports', Howard Journal of Criminal Justice, vol. 42, no.3 (July 2003), pp. 248-262.

[21] Diane Taylor and Hugh Muir, 'Border staff humiliate and trick asylum seekers – whistleblower', The Guardian, 2 February 2010. (hyperlink).

[22] R (C) v SSHD [2010] EWHC 1089.

[23] MI (Iraq) v SSHD [2010] EWHC 764.

[24] [2009] EWHC 1980 (Admin); and [2009] EWHC 735 (Admin).

[25] [2009] EWHC 2363 (Admin); and [2009] EWHC 1324 (Admin).

[26] Anam v Secretary of State for the Home Department [2010]; and [2009] EWHC 1989 (Admin).

[27] R (Albertina Ferreira Malunga) v SSHD [2010] EWHC 684 High Court (QBD); and R (PB) v Secretary of State for the Home Department [2008] EWHC 3189 (Admin).

[28] Stephen Shaw (Prisons and Probation Ombudsman), Report of the inquiry into the disturbance and fire at Yarl’s Wood Removal Centre, October 2004. (hyperlink).

[29] Serco, 'Serco to run Yarl's Wood immigration centre'. (hyperlink). See also: Home Office, Yarl's Wood immigration removal centre. (hyperlink).

[30] 'Yarl's Wood expansion put on hold', Bedford Today, 28 January 2010. (hyperlink).

[31] Home Office, Control of Immigration: Quarterly Statistical Summary - April - June 2010. (hyperlink).

[32] For more on recent protests at Yarl's Wood, see 1 | 2 | 3.