UK Immigration Courts: Observations from the Public Gallery

The Old Bailey, crown courts, magistrates courts — we’ve all heard of them, have probably read court reports, may even have attended them in person. But immigration courts? This is where decisions made by the government (the UK Border Agency) in immigration matters — including the administrative detention of some 25,000 people every year without time limit, without criminal charge or proper explanation — can be challenged.

A bail application to an immigration court is generally the most accessible way for detainees to seek their release from detention centres such as Campsfield, Yarl’s Wood, Harmondsworth, Colnbrook andBrook House, places where detainees — including torture survivors — routinely suffer from mental illness (some detainees’ stories here).

For years, among those who have encountered the UK’s immigration courts, stories have been commonplace about unfairness or lack of due process in immigration bail hearings. Lawyers have expressed concern, for example in the report A Nice Judge on a Good Day published last year by Bail for Immigration Detainees.

Today, Campaign to Close Campsfield publishes a new report: Immigration Bail Hearings: A Travesty of Justice? Observations from the Public Gallery that records observations by 18 trained lay people who took time to attend 115 bail hearings at four immigration courts in Newport, Wales, Birmingham, central and west London, over eight months from December 2009 to July 2010.

Some of the observers have been involved for years in pressing for an end to immigration detention, some have an academic interest, some are standing or have stood as sureties for people seeking bail. As such we have no other vested interest than wishing to see justice done.

From the 115 hearings only 33 detainees got bail and 22 applications were withdrawn. Of those, 16 were withdrawn on the advice of the judge that to proceed would be unhelpful to the applicant, but at least two were withdrawn because of the judge’s reputation for not granting bail (barrister’s comments). 75 detainees who were applying for bail had a legal representative: 28 of these were successful. Only 5 of the 40 applicants without legal representation were granted bail.

Some judges ensure that the applicant or legal representative is able to present the case and challenge the bail summary (that is, the document giving the Home Office ‘case’ for continued detention).

Others accept the Home Office case without question, despite guidance that makes the immigration judge responsible for providing support in these unrepresented cases.

Observers reported that immigration judges’ relations with Home Office Presenting Officers ranged from ‘difficult’ to ‘collusive’.

At times the immigration judge failed to follow what rules do exist. (This is a sore point: there have been no Guidance Notes for immigration judges since 2005, an extraordinary state of affairs.) This included the refusal of bail to at least two mentally ill people and a torture survivor (with independent medical report) – people who are listed by UKBA as among those who should not normally be detained.

Nine applicants did not receive the bail summary in advance, as is their right according to the Home Office’s own rules. Despite pre-2005 guidance that failure to produce the bail summary in advance should normally lead to bail being granted, this happened only once.

Different courts operate differently – video-link is used much more frequently in Newport and Birmingham. Observers describe how use of video-link technology disadvantaged the bail applicant. The chances of getting bail at Newport and Hatton Cross are much lower than in the other two courts.

There are also differences between different judges. (‘My decision means nothing,’ said one immigration judge on announcing whether a detainee would be free or not. ‘Another judge can make a completely different decision.’ Very true.

Over a third of applicants needed interpretation; quality varied and in one instance no interpreter was provided though one was needed. Communication was especially difficult if the application was heard via video-link.

Nearly half the observers found that the proceedings were irregular in some way. A third said explicitly that, in their view, the process had been unfair. Some observers came to the conclusion that, given various faults in the system, a fair hearing was virtually impossible to obtain.

The systematic observations demonstrated that there is an overarching issue of lack of due process, underpinned in many cases by a culture of disbelief. Our evidence suggests that the bail system is fundamentally flawed in terms of providing a fair hearing. And that is leaving aside the question of whether a state should have the right to impose ‘administrative detention’ – unacceptable when it comes to British citizens – on innocent migrants in the first place.

Apart from ourselves and those directly involved in the proceedings, not one member of the public was observed attending any of these 115 bail hearings. Justice has to be seen to be done, or injustice will step in.

Bail hearings are happening out of sight, away from public scrutiny. We hope our report will encourage the public as well as journalists to monitor the activities of the immigration courts, bail hearings in particular.

We hope to stimulate rising interest and concern among human rights bodies, organisations of lawyers, politicians and the public, and that more people will take action to ensure that migrants get the same quality of justice as do British citizens.

Our report concludes by making recommendations for change. Among other things we urge that immigration judges are demonstrably independent from UKBA, that applicants are automatically able to access free legal representation, and that the justice system abandons video-link technology.

The report is downloadable as a PDF; for hard copies contact Public meetings to launch the report will be held in Oxford on Tuesday 15 March, and in the House of Commons on Tuesday 22 March.

Bill MacKeith and Bridget Walker, 15 March 2011