Holding immigrant detainees in prisons beyond their sentence was ‘fundamentally flawed’, according to a damning report by Bail for Immigration Detainees (BID). Whilst both prison and immigration removal centres meant a loss of liberty, prisons posed far greater difficulties for immigration detainees already in a relatively powerless position, the group argued.
- You can read Denial of Justice: the hidden use of UK prisons for immigration detention here.
At the end of last year, 2,796 people were held in immigration detention in immigration removal centres but a further 1,214 people were being held as immigration detainees in the prison estate. There are some 13 immigration removal centres, holding centres for foreign nationals awaiting decisions on their asylum claims or awaiting deportation following a failed application, and they can hold up 3,000 at any one time.The BID report looks at the plight of detainees in prisons.
BID claimed that there was a ‘worrying conflation’ between the criminal justice system and immigration detention which allowed for immigrant detainees to be held in prison beyond their custodial sentence. This led to ‘practical barriers to accessing justice’ that had ‘severe and life-changing consequences’.
‘Immigration detainees held solely under administrative powers are not held in prisons other than in exceptional circumstances following risk assessment,’ said HM Inspectorate of Prisons (HMIP) in January 2014. In 2009, the Council of Europe’s committee for the prevention of torture and inhuman or degrading treatment or punishment (CPT) took the view that foreign nationals, who cannot be deported upon conclusion of their sentence, should be transferred to an appropriate facility, such as an immigration removal centre.
The UK government has argued that efforts made to ensure deportation immiedtaitely followed release justified further detention on the basis that some detainees didn’t cooperate with the deportation process. The Independent Chief Inspector of Borders and Immigration, which monitors the work of the UK Border Agency, noted in 2014 that detaining prisoners on the basis of being uncooperative was ‘potentially a breach of their human rights’.
According to the Prison Service Instruction 52/2011 (Immigration, Repatriation and Removal Service), foreign prisoners that reach the end of their sentence should be treated as ‘unconvicted’ prisoners. However, BID pointed out, while ‘Home Office managers routinely state that detainees are held in the prison estate under remand conditions, it appears that little has been done by these same managers to check whether or not this is in fact the case’. BID condemned the apparent disparity between the position as stated by the Home Office and the reality of the situation for immigrant detainees.
‘What is clear is that detainees in every prison that BID visits… report to us that they experience no practical difference in their daily routine once they finish the custodial part of their sentence and become an immigration detainee in the same establishment.’
Holding immigrant detainees in prison conditions meant that they had no automatic access to on-site immigration legal advice which they would have in immigration removal centres (subject to a means test). According to BID, this lack of access was ‘likely to inhibit progress and any subsequent resolution of immigration cases’. In May 2014 four out of 10 detainees at immigration removal centres who told BID they had made a surgery appointment were able to have an initial appointment with a solicitor within a week.
BID met with the then Legal Services Commission in 2012 who expressly ruled out providing legal surgeries in prisons for immigration detainees. There were also restrictions on phone-calls. Detainees in an immigration removal centre could have mobile phones to make calls in and out, whereas prisoners were not allowed mobiles. Legal advisors could not call immigrant detainees held in prison. The length of conversation was also restricted for prisoners. Delays in the delivery of post and lack of internet access were also identified as problems particularly for time-restricted issues – for example, if a detainee was unaware that they could make an out-of-time appeal.
‘Foreign national prisoners included 69 held administratively beyond the end of their sentence, the longest for over two years. This was poor practice and these detainees did not have access at Wandsworth to the facilities available at an immigration removal centre – such as the internet, fax machines and a less restrictive regime.’
An HMIP report following inspection of HMP Wandsworth
Hidden from view
There were also issues with respect to the courts. For example, without sight of the case against them, imprisoned immigrant detainees could not issue further instructions to counsel, or, if unrepresented, prepare adequately. Bail accommodation grant letters often arrived after they expired, which meant that a detainee would have to wait for a new address to be provided before they could re-apply for bail.
BID argued that the numbers of immigrant detainees held in prison did not even appear in Home Office statistics on immigration detention which illustrated the lack of visibility of this group of prisoners.
‘Not only are immigration detainees in the prison estate held entirely outside the scope of the statutory Detention Centre Rules, the Detention Services Operating Standards, and Detention Service Orders, but their numbers do not appear in published Home Office statistics on immigration detention. This cohort of detainees is therefore entirely hidden from public view.’
Caislin has completed the BPTC at the University of Law London and is currently seeking pupillage