Indefinite detention in the UK's immigration system should end, and detention decisions should be made independent from the Home Office, according to the UK Parliament's Joint Committee on Human Rights in a report published today.
The committee (JCHR), made up of MPs and peers and chaired by Harriet Harman MP, makes five proposals to Government to reform the immigration detention system.
It calls for urgent reform of the system so that it becomes "fair, humane, decent and quick", and for more to be done to make detention estates "less like prisons".
The five proposals are:
1. The decision to detain should not be made by the Home Office but should be made independently. This is such an important power that it cannot be wielded by the department which is charged with deportations and removals. In cases where the Home Office plan to detain a person (45% of cases), it should ask an independent body for authority to make a detention order.
The lack of rigour in detention decisions is evidenced by the series of mistakes accepted by the Home Office in detention cases involving Commonwealth members of the Windrush generation, and the amount spent on compensation for wrongful detentions.
Immigration detainees, the committee concludes, should not have fewer safeguards than those applicable in the criminal justice system, whether detentions are planned or unplanned. The decision on whether to continue detention should be made by a judge and should be made promptly. To give detainees sufficient time to get advice and gather evidence before such a hearing, a judicial decision to detain should be required for any detention beyond 72 hours.
2. There should also be a 28 day time limit on detention. In evidence, former detainees told the JCHR that facing indefinite detention is traumatic. The UK is the only country in Europe that does not impose time limits on immigration detention. In exceptional circumstances such as when the detainee seeks unreasonably to frustrate the removal process and has caused the delay, the Home Office should be able to apply to a judge, who would decide whether further detention of no more than an additional 28 days should be authorised.
3. Detainees should have better and more consistent access to legal aid to challenge their detention, and better access to legal advice where there is enough time for them to explain their case and the ability for the adviser to take the case forward to representation.
Foreign nationals liable to deportation at the end of their sentences are among those who face the longest period in detention. The Home Office should make it a priority to resolve their immigration status as quickly as possible and ensure they have the access to legal advice needed to engage with the legal process appropriately, so that they can either be released or removed at the end of their sentences, rather than having such challenges delayed until they are in detention.
Given the current complexity of immigration law, reinstatement of legal aid for immigration cases should be considered.
4. More needs to be done identify vulnerable individuals and treat them appropriately. The JCHR believes that the adults at risk policy does not give adequate protection to individuals at risk of harm in detention. This and other Home Office policies are silent on how to respond to the needs of those that lack mental capacity, which puts them at a clear disadvantage.
5. The Home Office should improve the oversight and assurance mechanism in the immigration detention estate to ensure that any ill-treatment of abuse is found out immediately and action is taken. The committee was concerned that reports of staff abuse and deterioration of Immigration Removal Centre (IRC) conditions were brought to light by undercover reporting rather than the Home Office’s oversight processes. The regime should be as open as possible on the inside, and consideration should be given to separating individuals who have been convicted of serious offences and those who pose a risk of violence from other detainees.
Former detainees who gave evidence to the committee described the indeterminate nature of detention and uncertainty associated with it as "mental torture." The monitoring bodies, Her Majesty’s Inspectorate of Prisons (HMIP) and the Independent Monitoring Boards (IMB) expressed serious concerns about open-ended nature of detention and the impact this had on individuals. Both monitoring bodies said that when speaking to detainees during inspections or visits, the indeterminate nature of immigration detention is a key cause of distress and anxiety.
Harriet Harman MP, chair of the JCHR, said: "If a person is suspected of a crime, they cannot be detained by the Government; they can be detained only by the police, who are independent of Government. If the police want to continue to detain a person beyond 36 hours, they have to bring that person before a court, which is, of course, totally independent of Government.
"But if the Home Office suspects a person of being in breach of our immigration laws, there is a complete absence of independence in the decision making. A civil servant – nameless, faceless and behind closed doors – just ticks a box to detain them. The first that person will know about it is when someone bangs on their door in the early hours of the morning to bundle them into an immigration enforcement van and take them to a detention centre.
"With no independence in the decision making, and with no scrutiny or accountability, mistakes are inevitable. Those we get to hear about are probably only the tip of the iceberg, but we do know that £21 million was paid out by the Home Office in just five years to compensate for wrongful detention, and terrible mistakes are certainly what happened in the Windrush cases."
Click here to view the report.