Foreign national prisoners: access to justice
There is a pressing need for accessible, high quality immigration advice in prisons and immigration removal centres (IRCs), a need which is recognised in official policy and specialist guidance, writes Adeline Trude and Gemma Lousley. In practice, however, provision in both is often difficult to access, or non-existent. The legal aid cuts contained in the Legal Aid, Sentencing and Punishment of Offenders Act, which are due to be implemented in April 2013 and which will remove deportation cases from the legal aid scheme, mean that the current difficulties are set to become even worse.
- You can read the new report by Bail for Immigration Detainees on access to justice for detainees HERE.
- You can read Gemma Lousley on foreign national prisoners in her report on Detention Advice Service’s 20th annual conference HERE.
- Pic: Barbed wire by Terry Freeman.
Immigration advice in prisons
According to the most recent statistics, there were 10,861 foreign nationals in prison in England and Wales at the end of June this year, meaning that they constitute about 13% of the prison population. Of these, around 7,500 are serving an immediate custodial sentence, a significant proportion of whom will face deportation action. At the beginning of January 2012, more than 5,000 foreign national offenders serving a prison sentence were being considered for deportation.
There are also a significant number of immigration detainees in prison. No regular statistics are published on the number of foreign nationals detained in prison under immigration powers following the end of their custodial sentence – they are not included in the Home Office quarterly statistics on detention – but a freedom of information request has revealed that the population of prison-held detainees ranged from around 450 to 600 across 2011 and early 2012. As such, prison detainees represent around 15-20% of the overall detained population.
The need for immigration advice for those in prison facing detention and deportation is clearly recognised by the Prison Service’s own guidance in Prison Service Instruction 52/2011, as well as by the Prisons Inspectorate in Expectations, the document which sets out the criteria it uses to appraise and inspect prisons. In spite of this, however, there is no co-ordinated provision of immigration advice in prisons. Detention Advice Service (DAS) is the primary provider of this advice within prisons, and we work directly in 13 of the more than 130 prisons in England and Wales, which indicates the scale of the problem.
Where immigration advice isn’t provided directly within a prison, the options for foreign nationals can be limited. DAS is a national service, and we provide advice by phone and post to prisoners and detainees in sites across the UK that we don’t visit. However, whilst our reach is broad, we are a relatively small charity, and struggle to meet the vast level of need that exists. Accessing advice provided elsewhere in the community is fraught with difficulties: there is often a dearth of information about immigration solicitors within prisons, and the lack of legal aid immigration solicitors, particularly outside major cities, means that some are simply unable to obtain advice.
There are, moreover, significant barriers to communication with the outside world for those in prison: prisoners only have access to communal phones, for instance; making phone calls from prison is expensive; and the prison regime means that prisoners have to make calls at fixed times of the day, which may not coincide with solicitors’ opening hours. These act as a further set of obstacles to obtaining immigration advice that are not easily overcome. Indeed, the most recent instalment of Bail for Immigration Detainees’ survey on access to legal advice for detainees shows that just 21% of detainees in IRCs who were previously in prison received immigration advice while there.
Immigration advice in IRCs
Bail for Immigration Detainees (BID) is a charity providing free legal advice, information and representation on bail to people held in detention in the UK. We do not receive legal aid funding. The Legal Services Commission offers some free legal advice via surgeries in IRCs, subject to the means and merits test. In 2010, in response to our clients telling us about their problems accessing immigration advice in IRCs, we started to run a regular survey across the detention estate to capture detainees’ experiences of getting legal advice. Our findings raise questions about the ability of legal aid surgeries to meet the needs of immigration detainees.
Our most recent survey found only 69% of detainees interviewed had a legal representative. In light of the fact that in 2011 36% of detainees were released back to the community rather than removed, a shocking 14%-19% of detainees interviewed had never had a solicitor while in detention.
47% of detainees interviewed had waited over one week to secure an initial interview with a legal aid adviser, a further 27% waited three weeks or more. Detainees may receive removal directions before getting the chance to meet with a lawyer. Where loss of liberty is at stake, delays of weeks before a detainee can access basic advice on bail and other matters are not acceptable, and contribute to the damaging sense of confusion and fear felt by detainees, many of whom will have a strong case to remain in the UK, or if not imminently removable, need their detention to be challenged through bail or other legal avenues.
While bail is not the only route to release from detention it can be the quickest and most accessible. Yet we found worryingly low levels of bail applications among detainees with a legal adviser. On average, 55% of detainees with a legal adviser, including people detained for several months, had never had an application for release on bail made on their behalf.
Legal advisers enable detainees to understand their rights, and manage their expectations. A realistic picture of the chances of success helps detainees make informed decisions, and proactive legal work can resolve cases more quickly and shorten time in detention. Advice is essential where someone has been deprived of their liberty for administrative reasons.
The current government has argued – correctly in our view – that detention-related legal work is to be retained in scope because loss of liberty is at stake. In that case providers must be sufficiently well funded to take on and quickly act for all detained clients who meet the means and merits test. Foreign nationals facing removal or deportation from the UK who are held in prison must receive comparable provision of immigration advice to those held in removal centres.
- Dr Adeline Trude is research and policy manager at Bail for Immigration Detainees
- Gemma Lousley is advice/information worker at the Detention Advice Service