Immigration detention: a case of overuse

The latest news involving detention centres across the UK continues to cause concern. The recent BBC Panorama documentary “Britain's Immigration Secrets” (4 September 2017) provided to the wider public a shocking insight of conditions inside such centres. Recent cases have also brought the plight of detainees to the fore.

On 10 October 2017 survivors of torture won a legal challenge against Home Office rules on asylum seeker detention in the UK (Medical Justice v Secretary of State for the Home Department [2017] EWHC 2461 (Admin)). The Government had argued that under the recognised definition of torture, it was something that could only be carried out by official state agents, or terror groups controlling territory. However survivors and the charity organisation Medical Justice successfully argued that this definition was too narrow and limited. The reality is that non-state torture happens and the legal definition should not be restricted to exclude victims of trafficking and other abuses. Detention of those affected by such torture is therefore unlawful and arguably an abuse in itself.

The Home Office has said it will not appeal against the ruling, which could affect now hundreds of cases across the UK. Such cases serve to highlight the fact that whilst everyone is acutely aware of the rise of immigration in Britain, very little is known about how the Government deals with and treats those perceived as illegal immigrants.

The common view is that illegal immigrants are arrested by the Home Office enforcement teams, moved to detention centres across the UK to await the outcome of their cases, and if they fail they are deported to their country of origin. But what happens behind closed doors at the removal centres while these outcomes are being determined? What is the detainees' story that often goes unheard? From the perspective of an immigration solicitor it is worth pointing out there are definite factors which have an impact on the detainee's ability to provide instructions to their solicitor to enable a robust case to be put together while still in detention.

Investigative exposure

An incident in Dungavel Immigration Removal Centre in Lanarkshire on 19 September 2017 caused concern when the Home Office confirmed that a Chinese man had suddenly died while in detention. The unexpected death has led protesters demanding an investigation immediately take place to find the cause of this unexpected death. This followed the Panorama investigation, in which Callum Tulley went undercover as a detainee custody officer in the Brook House Immigration Centre to become a whistleblower. He exposed a very toxic and brutal environment where self-harm and abuse sadly happen on daily basis.

The documentary exposed staff who led the abuse and who were suspended following the investigation. It is shockingly apparent that some of the detainees who merely overstayed their visa in the UK are locked together with high-grade offenders. These detainees were often drugged, often for the first time in their lives. Detainees are put in environments that are very difficult, and with the lack of clarity as to how long the detention is likely to last, they go through emotional and psychological turmoil that permanently affects their mental health.

Inhumane conditions

We work hard in our firm to ensure that any clients who are detained are released as soon as possible, and we see first hand the difference between those who are released on bail and those who remain in the centre while trying to fight for their right to release. Detainees complained of the lack of sleep at night, constant bullying by other detainees and lack of empathy from the staff. Sadly there were people who chose to target their own life rather than spend another couple of days in detention.

The whole process of detention should be efficient and cause as little stress as possible to a person detained. Yet, it is disappointing to see the detainees being treated poorly and being detained for excessive amounts of time, some over months and years, whilst their cases are being determined. In a recent BBC Scotland investigation it transpired that the majority of the detainees have no family or friends to provide them with moral support, and the only port of contact with a distant family is via a telephone. They rely highly on legal aid and charities for assistance.

The UK’s Chief Prison Inspector highlighted concerns about the detention of vulnerable asylum seekers at Dungavel. HM Inspectorate of Prisons (HMIP) carried out an unexpected visit and found some serious problems regarding squalid conditions, detention for long periods of time, poor diet, and detainees being handcuffed at almost all possible times regardless of individual risk.

Many detainees complain about basic hygiene not being available and noisy crowded dormitory rooms with the overnight phone system to contact the staff not working. They report discrimination incidents and racial abuse involving other detainees as well as those who are supposed to be looking after and protecting them while inside. Worryingly, staff at detention centres do not have satisfactory training to pick up whether an individual is suffering from any mental health or any other disorder, and the majority of these staff members put problems down to behavioural issues. Counselling and pastoral services are limited and often paid lip service to rather than properly provided.

In addition, very few rule 35 reports (risk of injury to health by continued detention) result in the release of the detainee, despite clinical evidence, and HMIP noted in their review that “there was no system to seek the opinion of an independent medical specialist and in some cases [Home Office] caseworkers, with no declared medical qualification, appeared to be making their own clinical judgments and uninformed decisions”.

Court findings

In the last three years there have been six separate court rulings finding that detainees suffering from mental disorders were subjected to “inhuman and degrading treatment” in immigration removal centres, in breach of article 3 of the European Convention on Human Rights. In R (MD) v Secretary of State for the Home Department [2014] EWHC 2249 (Admin) a woman entered the UK with a valid visa and had no history of mental illness before her detention. She was detained for a period of 17 months and as a result became suicidal and psychotic during this period.

The recent verdict of the jury in the inquest into the death of Brian Dalrymple at Colnbrook Immigration Removal Centre was that the death was “contributed to by neglect”. This incident clearly demonstrated that a failure to diagnose underlying mental health issues and delayed psychiatric assessment contributed to Mr Dalrymple’s eventual death from natural causes whilst held in segregation. The article 3 cases and deaths in detention are becoming increasingly extreme. Failure to diagnose these early comes at a great cost to individuals and their lives. Many continue to struggle with these issues long after they are released from detention because by this stage the damage is done, and there is lack of guidance and possibly lack of trust in the system.

Problems for the adviser

There are a number of problems which we as immigration solicitors face when acting for a detained client. It has been common to be unable to seek instructions from a client, who cannot be reached on their mobile phone. There is often an issue with reception, and restrictive times during a day. Once the person is detained all their personal belongings are seized and kept in the safe box. The most common port of contact with the client is via a telephone before sanction is granted to visit them at the detention centre. A client’s inability to provide their financial information for the purpose of their legal aid application causes a delay in such application being granted by the Scottish Legal Aid Board. Some clients are in a slightly better situation, as their relatives or friends who live in the UK are able to forward the paperwork if required. Again the question arises of the person who has no family or friends in the UK and once they are detained they lose all their possessions and paperwork. They often struggle to recall any financial or legal facts regarding their circumstances and acting to the best of their knowledge is often the only way to approach their matter. Then there are clients who develop health problems due to being detained, which affects their ability to provide coherent and clear instructions.

Detention builds up something of a mistrust in the system which is supposed to be trying to assist them. The importance of communication taking into account language and cultural differences, compounded by continuing detention for a person who may have suffered serious abuse and hardship, has untold implications. We often deal with vulnerable clients who should never have been detained in the first place and require counselling and other medical assistance to get over the abuse and horror they have had to overcome, but instead are detained without full support, which simply exacerbates their difficulties. Isolation is another real problem. Once released, we often see a difference and a confidence in the client who can then access some support. This reflects on their ability to be able to deal with their case and has a huge bearing on how they appear when attending a hearing.

What has also become increasingly common is that the Home Office conducts criminal background checks in the country of origin, going back 10-20 years. People who committed crimes 20 years ago, often were young and influenced by many contributing factors. Then some 20 years on, when a lot has changed in their lives and the majority have been rehabilitated, they are facing deportation order. Their lives go on hold and they face the fear of being separated from their family for at least a couple of years. The element of mental strain appears and a client becomes severely distressed.

Many immigration clients may be victims of human trafficking, sexual abuse or physical abuse in general. Usually these clients take their time to express their situation due to their past trauma, and with no one to help with their psychological health their health only deteriorates. The fact that they did not disclose everything as soon as they were asked is something which is often used against them. However the reality is that victims in such cases need time, support and understanding. They need care and safety and only then can they feel able to open up about the horrors or abuse they have witnessed or been subjected to. There is a clear difference between immigration clients who visit the office and clients who are detained. Therefore, it can be said that many individuals are detained in detention centres unnecessarily and over time this has major effects on their own case.

Such difficulties need to be given proper recognition by the Home Office and the tribunals and courts who deal with these matters. The purpose of the detention centre is not to add to the abuse of detainees but to allow them a safe and secure place while their cases are being assessed or reviewed. They should be provided access to health professionals and care. This can only assist since it allows detainees to deal with the difficulties they have, provide clear instructions and get proper legal advice from the outset. It would also assist in getting cases prepared and processed quicker with the Home Office being provided with relevant information to make its decision.

The true purpose of detention centres is being lost, and rather than providing a benefit they appear to be causing damage and exacerbating problems for those involved. Proper training for staff and more funding for these centres is absolutely necessary. Easier access for legal representatives would also assist, with videolink facilities being made available for solicitors not only when cases are being heard at court but also when taking instructions. We see this having a huge impact in prisons and there is no reason why this should not happen in Dungavel. Detention at present is a punishment at these centres with detainees subject to exacerbating problems rather than a purpose built facility there to assist. Clearly this is something which the Home Office and Scottish Government need to take a closer look at and bring about changes sooner rather than later.