Fact sheet: Internment of Immigration Detainees

In 1998 New Labour invited the UN Commission On Human Rights to visit the UK to inspect and assess the UK detention estate.

A Working Group On Arbitrary Detention visited the UK from 21st to 25th September 1998. The Group visited both detention centres and prisons. Among the detention centres the Group visited were Campsfield House Detention Centre, Oxfordshire; Harmondsworth Detention Centre, Middlesex; Haslar Holding Centre (HOHC) in Hampshire and Tinsley House (near Gatwick airport). The prisons visited were the prison at Rochester, Kent, and Wormwood Scrubs in London. The Group visited Heathrow airport, met with the Assistant Director, Mr. Alan Craig, and familiarized itself with the primary and secondary control areas, the asylum casework section, the holding area and other operations at Heathrow.

Their conclusions were published on 18 December 1998.

They raised eight matters of concern, as at August of this year 2001, five of the matters of concern had been completely ignored and three only partly addressed.

They made fifteen recommendations, as at August of this year 2001, twelve of the recommendations had been completely ignored and three only partly addressed.

Distribution. GENERAL E/CN.4/1999/63/Add.3

18 December 1998

The complete document published by the Office of the United Nations High Commissioner for Human Rights, Geneva, Switzerland is available at:

www.hri.ca/fortherecord1999/documentation/commission/e-cn4-1999-63-add3.htm

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1. In its resolution 1997/50, the Commission on Human Rights requested the Working Group on Arbitrary Detention to devote all necessary attention to reports concerning the situation of immigrants and asylum seekers who are allegedly being held in prolonged administrative detention without the possibility of administrative or judicial remedy.

Below are the matters of concern and recommendations and what the government response has been.

Matters of concern

Matters of concern	What the UK Government has done
18. The United Kingdom must observe the provisions of the 1951 Convention relating to the Status of Refugees and the other international instruments to which the United Kingdom is a party, i. e. the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms. The functioning of the legal regime in the United Kingdom, in the context of the above international instruments, gives rise to the following concerns:
(a) The functioning of the legal regime on occasion makes the restriction on liberty and free movement sufficiently prolonged that it might in specific instances result in arbitrary deprivation of liberty;	(a) Length of detention. There is no time limit on the length of detention in the UK but time is an important factor. The longer someone is detained the stronger must be the reasons to detain. For this reason there is a hierarchy in the IS going up to Deputy Director (at, I think, 6 months) for review of each case. Time becomes especially important at the end of a case or where someone signs a disclaimer. If removal cannot be effected quickly then release should follow. If not then detention may be unlawful. The IS often say detention is delayed because the individual is not cooperating so telling lies about your identity to prevent removal would enable the IS to maintain detention is still lawful. (See below: Amuur v France)
(b) The release of certain persons on account of non-availability of space and the detention of certain other persons whose cases for release are much stronger but who are detained because space is available makes detention dependent on the availability of space, rather than the quality of the applicant’s case;	(b) This is still the case. This is one reason why the detention estate is being enlarged; to reduce pressure on bed space and why there are constant references (in e. g. the White Paper Firmer, Faster, Fairer) to detaining to effect swift removal.
(c) Upon detention, there is no immediate access to court or to a quick judicial remedy;	(c) This is still the case. Part III of the 1999 Act has not been brought in. There is a right to bail seven days after arrival in the UK under the 1971 Act (arbitrary?) but access to the court depends on the availability of legal reps and the Immigration and Asylum Appeals (Procedure) Rules 2000. Rule 34 deals with bail and requires, for a written application;
(d) There is no judicial oversight of detention;	(d) There is no judicial oversight. Adjudicators are not judicial oversight. There is no right of access to an adjudicator, it is subject to Rule 34. Part III might (but only might) remedy this.
(e) At the outset, no written grounds for detention are communicated to the applicant;	(e) Written grounds are provided by way of a check list only. These are often not properly completed and are not in a language the detainee understand.
(f) There are no written rules or statutory procedures delineating the obligations of the Government towards detainees and the rights of detainees while in custody;	(f) This has been resolved for some detainees by the Detention Centre Rules. I suppose it could be argued that the Prison Rules serve those in prison but are not directed at detainees, only unconvicted prisoners. There are serious concerns that the Detention Centre Rules are being breached on a regular basis, especially in regard to the need to keep detainees informed of progress in the case, reviews of their detention and other matters.
(g) There is no specified time limit within which, pursuant to an order of detention, the applicant is required to be produced before an adjudicator. There is also no legal regime for time-bound appeal disposal and procedures in regard thereto;	(g) This remains the case and the Government. say they will not introduce time limits.
(h) The decision to detain an asylum seeker is made by an immigration officer who may not have sufficient training in refugee law or the human rights situation in the refugee producing countries. There is also no effective remedy to challenge a decision before a court or before an independent review body. Although the White Paper proposes that an asylum detainee will have an automatic right to a bail hearing after seven days of detention, in many instances legal aid may not be available for a bail hearing. Even though a bail hearing may be provided, as promised by the Government in the White Paper, this would not be an effective substitute for an independent review whereby the reasons for a decision to detain may be challenged. Consequently, asylum seekers may have no effective opportunity to challenge the reasons for detention, as a bail hearing would only examine reliability of surety and its relationship to the applicant.	(h) A significant lack of knowledge of refugee law and human rights situations is accepted as true by the Immigration Service. I have heard a deputy director say on several occasions that they do not and need not know anything about either of these matters as that is dealt with by the ICD (Integrated Casework Directorate). He continues to say this despite the fact that the Oakington Criteria say that the case must be judged straightforward before someone is suitable for Oakington. No effective remedy. This remains the case. Barbara Roche said in a letter to Lord Dholakia dated 5 May 2000 that “(bail) hearings do not address the reasons for detention. They are intended to ensure that immigration officers use the alternatives to detention (grant of temporary admission or release) to the best effect. “ Automatic Right to bail. No. No independent review. This is still the case. Concerns over bail (as not being an effective remedy) still apply and will probably do so even if and when Part III is introduced.

Conclusions and Recommendations

Conclusions and Recommendations	What the UK Government has done
26. The Government should ensure that detention of asylum seekers is resorted to only for reasons recognised as legitimate under international standards and only when other measures will not suffice; detention should be for the shortest possible period.	26. Reasons other than those in Art. 5(1)(f) are often put forward. Other measures. These are not considered at all or sufficiently nor are they reviewed. The Oakington Criteria do not take into account other measures. Post-Oakington detention decisions are based on the decision on the asylum claim in Oakington and not the need to effect removal. All post-Oakington have a right of appeal. Significant numbers succeed at appeal, particularly if well represented. Shortest possible period. IS say that they try to make it as short as possible but if the detainee seeks other remedies to prevent removal then they bring continued detention upon themselves. This point was not accepted by the European Court of Human Rights in Amuur v France. Stringing out procedures is not a reason to maintain detention.
27. At the time of detention, detainees should be provided in writing, in a language they understand, with the reasons for detention.	27. This is still not the case.
28. At the time of detention, detainees should be provided with a written explanation of their rights and how to exercise them.	28. This is still not the case.
29. Each decision to detain should be reviewed as to its necessity and its compliance with international legal standards by means of a prompt, oral hearing by a court or similar competent independent and impartial review, accompanied by the appropriate provision of legal aid. In the event that continued detention is authorised, detainees should be able to initiate further challenges against the reasons for detention.	29. This is still not the case.
30. Detainees should be held in special immigration detention centres in conditions appropriate to their status and not with persons charged with or convicted of criminal offences (unless so charged or convicted themselves).	30. This is still not the case. This should be the prime reason for all Liverpool complaints.
31. Detainees should be given adequate access to their legal representatives, relatives and officials of the Office of the United Nations High Commissioner for Refugees.	31. This is still not the case. There is a chronic shortage of competent representatives. Furthermore, the overwhelming majority of legal representatives in private practice have contracts with the Legal Services Commission. The contract requires that a merits test be applied. The nature and purpose of this merits test is unclear or not clearly understood and that, therefore, detainees are regularly (incorrectly) refused access to representation for bail hearings. At the end of June 2000 there were several hundreds of detainees requesting bail applications. The majority already had representatives with Legal Services Contracts. It is estimated that, with its current resources, and assuming none of these cases would require repeat applications, it would take 5 months to clear this backlog. Means of contacting representatives are varied and, in prison, extremely limited. Several prisons, including, it is understood, Liverpool, do not have the resources to provide legal visits as often as necessary for immigration detainees.
32. The Government should concentrate the use of detention on appropriate cases of rejected asylum seekers at the end of the asylum determination process (i. e. when the incentive to abscond is increased) or where removal is imminent and there are reasons to believe it cannot be effected unless the individual is detained. The power to detain should not be exercised if the person concerned is, on the basis of substantiated evidence, fully absorbed into the society from which his removal is sought. The relevant Schedules of the Immigration Act should spell out permissible criteria for detention.	32. Some efforts are being made to target in this way, except for those going through the Oakington process.
33. Alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention.	33. This is still not the case. For example, the Operational Enforcement Manual recommend stringent conditions for Chief Immigration Officers bail (Chapter 39. 4), including in respect of sureties,“Each case should be assessed on its individual merits but a figure of between £2000 and £5000 per surety will normally be appropriate. “ On the 27 July 2001 an adjudicator set bail for a detainee of £1. CIO bail had previously been set at the impossibly high level of £5000 each from two sureties.
34. The detaining authorities must assess a compelling need to detain that is based on the personal history of each asylum seeker.	34. This is still not the case. Compelling need is not the criterion applied. Oakington does not address need to detain save as deterrent and for administrative purposes.
35. An absolute maximum duration for the detention of asylum seekers should be specified in national law.	35. This is still not the case and has been specifically ruled out.
36. Any review body should be independent from the detaining authorities.	36. This is still not the case.
37. Unaccompanied minors should never be detained.	37. This is still not the case. Provision for the detention of minors exists although the numbers detained have reduced. But “never“ has been ruled out.
38. Specialised non-governmental organizations, the Office of the United Nations High Commissioner for Refugees and legal representatives should have access to all places of detention, including transit zones at international ports and airports.	38. Access to specialist NGOs is frequently denied. UNHCR do have full access but lack resources to make anything like regular inspections and visits. Legal representatives are frequently denied access to prisons (not detention centres and rarely Haslar, Lindholme and Rochester) because of lack of recourses.
39. All staff should receive training related to the special situation and needs of asylum seekers in detention.	39. This is still not the case. The Detention Centre Rules make some provision. There is no such provision in Prisons. (There is some in Lindholme, Rochester and Haslar but it falls short of the Detention Centre Rules. )
40. National authorities should provide detailed information on relevant policy, practice and statistics in order to ensure transparency.	40. This is still not the case. Some internal instructions exist which are not in the public domain. For example, a request from a NGO for information about numbers detained on arrival was refused by letters from a deputy director of the Immigration Service, dated 30 October 2000 and 5 January 2001.