The Detained Lives research demonstrates the failure of the UK’s blind reliance on immigration detention as a panacea to the challenges of immigration control. Asylum seekers and foreign ex-offenders are seen as a problem that can be resolved with sufficient toughness. Indefinite detention is the logical culmination of years of increasingly repressive immigration policies: yet it does not work. LDSG’s evidence shows that indefinite detention is a largely ineffective means of deporting people. This exercise in futility has an enormous human cost to the lives of those on the receiving end.
The research makes clear that indefinite detention is a reality and may even have become routine, given that one small charity has worked with 188 indefinite detainees over an 20 month period. The importance of this in itself should not be understated: indefinite detention corresponding to no criminal sentence is an extreme measure. In no other corner of society does anything comparable take place: the criminal justice and mental health systems only hold people indefinitely in rare and extreme cases. The reluctance of society to tolerate 42 days detention without trial of terrorist suspects stands in stark contrast to an immigration system that gives little respect to the civil liberties of foreign ex-offenders.
The in-depth interviews with 24 indefinite detainees make clear the devastating impact of indefinite detention. The despair and psychological deterioration described so vividly by the interviewees accurately reflects the situation which LDSG volunteers regularly encounter in their visits. Losing their liberty is as painful and damaging for asylum seekers and ex-offenders as for anyone else. British ex-offenders are assumed to have been rehabilitated, so are released; yet stateless foreigners cannot be forgiven, so can be incarcerated many times longer for the same offence. Society’s lack of attention to the situation of these indefinite detainees calls into serious question its commitment to human rights, which by definition must be universal. Stateless people who have no state to represent them seem very easily to be deprived of these rights.
In order to assess this cost to detainees’ rights, not to mention the taxpayer, it is necessary to consider the aims of detention. Under British and international law, detention of immigrants must be justified by the pursuit of deportations. However, by this standard indefinite detention is an abject failure. The fact that only 18% of indefinite detainees in contact with LDSG have been deported suggests that prolonging detention only rarely succeeds in overcoming the barriers to deportation.
Given that almost half of the indefinite detainees were from four nationalities, a clear pattern is discernable of circumstances which can make deportation impossible. Moreover, other European states have achieved far higher rates of removal of refused asylum seekers without resorting to indefinite detention.
UKBA have sought to justify the automatic detention of exoffenders by reference to the importance of public protection. This factor in itself cannot legally justify detention; but in conjunction with pursuit of deportation, however remote, it has become central to the reasoning behind indefinite detention. This has developed from the political priority attached to the need to reassure the public, following the exposure in April 2006 of failure to consider some foreign ex-offenders for deportation.
However, this political need to appear tough seems to have taken precedence over the development of a policy that actually works. Public protection might be achieved by keeping criminals off the streets, but this can only be temporary. It is significant that even the criminal justice system does not pretend to guarantee public protection, confining itself to the more achievable goal of delivering justice. Some British ex-offenders are at a high risk of re-offending, yet their release from prison is not dependent on proving complete rehabilitation. However, the immigration system, with its elusive aim of complete and perfect immigration control, aims to exclude absolutely the possibility of foreign nationals re-offending. Stateless people frustrate this aim. Since they cannot be deported, indefinite detention becomes the improvised alternative.
Moreover, policies designed to improve immigration control could be seen as actively compromising public protection and causing crime. The marginalisation and exclusion of refused asylum seekers, preventing them from working or claiming benefits, is designed to encourage voluntary return, but in practice leads some to commit crimes. By a spiralling logic, the criminalisation of attempts to work leads to the requirement for draconian measures to protect the public from those so criminalised. It remains unclear in what way the public requires protection from the risk of re-offending of someone like Ahmed Abu Bakar Hassan, whose offence was to claim asylum detained lives: the real cost of indefinite immigration detention in a false name.
Yet the perceived risk caused by these “dangerous” foreigners appears to be given more weight in decision-making than considerations of the likelihood of deportation taking place. The interviewees described being repeatedly refused bail for reasons which did not address the obstacles to deportation, such as the assumed risk of re-offending or absconding created by their crime or lack of family ties.
The logical conclusion of this reasoning was that detention could continue forever, since their crime or lack of family would not change. The draft Immigration and Citizenship Bill threatens to further entrench this logic by obliging the AIT to give weight to a number of specified factors in assessing suitability for bail: all are factors that would justify continuing detention, while likelihood of deportation is absent.
The desire to exclude detainees from the UK appears matched by their exclusion from the process that leads to their detention. Interviewees had no meaningful dialogue with UKBA. They did not feel themselves to be in a process leading to deportation or release, based on transparent and comprehensible assessments of the available evidence. Interviewees described an impression of stagnation, in which they were detained for long periods with no progress towards resolution of their cases, yet they could be released at any time, apparently at random. They felt forgotten and abandoned, “behind the door”, trapped in the limbo between an exclusion already decided upon and an unrealisable deportation. That so many wanted their names to be included in this report, despite the vulnerability of their situations, demonstrates graphically their desire to be heard as individuals.
• The UK should end its derogation from the EU Returns Directive and adopt a maximum time limit for detention.
Only a statutory limit can prevent abuse and reduce the unacceptable stress experienced by indefinite detainees. Other EU states achieve far higher rates of removal without requiring indefinite detention. The UK should follow best practice within the EU and implement a limit of one month on detention.
• The UKBA should accept the decision of the High Court in “Abdi and Others” and reinstate the presumption of liberty for all detainees. Detention should only be contemplated for the shortest possible time in order to facilitate imminent deportation. Depriving someone of their liberty on administrative grounds is an extreme step that should be taken only as a last resort.
• Likelihood of imminent deportation should have priority in decisions by UKBA and AIT to initiate and continue detention. Other factors should only be considered relevant where it is established that deportation is possible within one month.
• The detention of mentally ill people should end. The distress and psychological deterioration caused to mentally unwell detainees is unacceptable and disproportionate to the requirements of immigration control. Where detention in a secure mental health unit is not appropriate, communitybased alternatives should be used.
• Decision-making by UKBA and the bail courts must be evidence-based:
• Where deportation is not imminent, community-based alternatives to detention should automatically 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 in the community.
• Where detention is used, on-site Immigration officers should be reintroduced in detention centres in order to improve communication with detainees. Monthly case review meetings should involve UKBA caseworkers and detainees. Legal representatives should be funded by the Legal Services Commission to attend where necessary, and should in any case be able to maintain regular telephone contact with UKBA caseworkers. All parties should work to agree and follow a clear action plan leading to deportation or release.
• The UK should meet its obligations under the 1954 Convention Relating to the Status of Stateless Persons and introduce a statelessness determination procedure. Immigrants who cannot return to their countries of origin should be granted temporary or permanent leave to remain in the UK, based on objective assessment of when, if at all, return will be possible.
• Immigrants residing in the UK should have a basic right of participation. This would include many of the rights and responsibilities of UK citizens, including the right to work. This is necessary to avoid the social exclusion and crime generated by the current policy of marginalising undocumented migrants. It would also decrease the need for detention by reducing the risk of re-offending or absconding. Assessment of risk to the public should take as a baseline standards applied by the criminal justice system and Probation Service. The Probation Service should produce probation reports on all foreign nationals on completion of their sentence, in the same way as for British nationals. These reports should be supplied to UKBA, and should form the basis of risk assessments.
UKBA should commission further independent research into absconding rates, in order to identify factors affecting the risk of absconding. A clear evidential basis should be required in order to assert a high risk of absconding in an individual case.
UKBA should publish its internal management information on procedures and timescales for obtaining emergency travel documents from all national embassies. This information is known to exist, but is not provided to the AIT when assessing the likelihood of imminent deportation in bail hearings.
detained lives – the real cost of indefinite immigration detention