Full report here in pdf: No return, No release, No reason – challenging indefinite detention Sept 2010
1. The UK should end its derogation from the EU Returns Directive and adopt a maximum time limit for detention. The evidence shows that extended detention more often leads to release than deportation. The UK should follow best practice in the EU and implement a time limit of one month.
2. Likelihood of imminent deportation should have priority in decisions by UKBA and the Tribunal to initiate and continue detention. Detention, if it must be used, should only be used for deporting and removing people. Where this is not imminent,
deportation can be pursued while the person is in the community.
3. The detention of mentally ill people should end. The distress and psychological deterioration caused to mentally disordered detainees is disproportionate to the ends sought by immigration control.
4. Decision-making by UKBA and the bail courts should be evidence-based. Assessments of risk to the public should be undertaken by the National Offender Management Service, and should form the basis of risk assessments in considering
detention or community-based alternatives. UKBA should only assert a high risk of absconding in an individual case where a clear evidential basis exists. UKBA should publish its internal management information on procedures and timescales for obtaining travel documents from all national embassies. This information should be considered by the Tribunal in assessing whether
deportation is imminent.
5. Where deportation is not imminent, communitybased alternatives to detention should always be used. UKBA should study the successes of the Swedish and Australian models, which have achieved high rates of voluntary return through an emphasis on dialogue with asylum-seekers and migrants in the community.
The report, No Return No Release No Reason, launched in September 2010, updates London Detainee Support Group’s previous report about the UK Border Agency’s (UKBA) detention practices. It focuses on a group of detainees who cannot be deported and who are consequently condemned to indefinite detention. Of those detainees supported and followed by LDSG, almost half of those detained for over one year come from four countries which have well-documented barriers to removal. Indeed, for those detainees originating from countries to which enforced returns are not taking place either because it is unsafe (for British escorts) or because their governments refuse to accept them as nationals or issue them with travel documents, the time-space continuum between imminent removal and indefinite detention has become Escheresque. Although in most cases the UKBA persist in claiming that deportation is imminent, in fact, only one in three people held in immigration detention for over a year are eventually deported and over half of long-term detainees are released – a significant number of those are granted leave to remain in the UK.
Although the LDSG report notes successful High Court claims for judicial review of UKBA decisions to continue to detain and gains some hope that some High Court judges at least are continuing to apply an ‘enough is enough’ approach, it is acknowledged that this is in the face of the precedent (Court of Appeal) case law which has fundamentally undermined what legal practitioners had believed were the settled principles of human rights and liberty and refer to as ‘the Hardial Singh principles’.
Further, LDSG records the financial costs of indefinite detention: detention in a high security immigration removal centre costs the taxpayer over £68,000 per person per year. Moreover, a number of successful judicial review cases, (usually brought after repeated unsuccessful applications for release on bail to the First-Tier Tribunal (Immigration and Asylum) have resulted in the UKBA paying out substantial amounts in costs and compensation. (Read an IRR News story: ‘Immigration detainees failed by system’)
However, by far the greater cost is the human loss. Ahmad Javani, an Iranian national detained for over thirteen months comments:
‘If any single normal person came to this place you’d go mental, mad in this place. I was a normal person before coming to this place, and now, I’m forgetting things always. Like old people that forget things. I can’t understand, I’m not the same person. I’m a different person. Who gives this power to them to keep these people here for years and years and years, to make them mental and crazy?’
The impact of indefinite detention – incarceration and sense of powerlessness – on detainees’ mental (and physical) health is profound. The medical – specifically psychiatric – care is wholly inadequate.
Indeed, this latest LDSG report is a tribute to those detainees who are survivors of indefinite detention – day after day and year after year; for many the impact will continue long beyond the experience. The report is also acknowledgement of those campaigners who persevere in highlighting the inhumanity of immigration detention and resisting the racist demonisation of immigration detainees.
The legal framework
All powers of detention under the 1971 Immigration Act are implicitly limited. In a much relied on Court of Appeal case in 2003, Lord Justice Dyson stated, ‘The deportee may only be detained for a period that is reasonable in all the circumstances.' Although ‘in all the circumstances’ may include factors such as the risk of absconding, (re)offending, the detainee’s cooperation with the removal process and the detainee’s health and any undetermined human rights claims, a vital consideration is whether removal is foreseeable/imminent and the UKBA is acting diligently to remove the detainee from the UK (‘the Hardial Singh principles’).
However, notwithstanding overwhelming obstacles to removal to certain countries (for example, Iran and Somalia), the UKBA maintains, on a case by case basis, that removal is imminent and that detainees are frustrating the removals process and consequently continued detention – even indefinitely – is reasonable: the argument runs that a detainee can bring their detention to an end at any time by voluntarily leaving the UK.
The UKBA approach has been underwritten by the judiciary, specifically, the precedent Court of Appeal case in which Lord Justice Stanley Burnton stated:
‘In our judgment, the fact that a FNP [Foreign National Prisoner] is refusing to return voluntarily, or is refusing to cooperate in his return (for example, by refusing to apply for an emergency travel document …) is relevant to the assessment of the legality of his continued detention … as a matter of principle, a FNP cannot complain of the prolongation of his detention if it is caused by his own conduct.'
More recently in another Court of Appeal case, Lord Justice Richards stated: ‘There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all.'
Consequently, the legal principles (and protections) established in the Hardial Singh case in 1984 have been eroded and undermined to legitimise indefinite immigration detention.
Bt Anne Singh