New research: Rule of law and access to justice concerns in immigration detention

Photo courtesy of Gatwick Detainees Welfare Group

New research uses the concepts of the rule of law and access to justice to investigate the situation of people in immigration detention in the UK. Each year some 30,000 people with immigration status issues spend varying lengths of time in the nine dedicated ‘Immigration Removal Centres’ around the country. The UK, which has the largest immigration detention system in Europe, sets no time limit for detention. The research focuses on the perspectives of legal professionals involved in immigration detention and identifies that the human consequences, financial costs and effectiveness of detention are highly controversial.

‘Injustice in Immigration Detention: Perspectives from legal professionals’, produced by Dr Anna Lindley of SOAS, University of London, draws on a review of official documents, statistical data and 21 interviews with barristers, solicitors, immigration judges and other specialists. The research examines the legal and policy framework of immigration detention; how legal processes work as mechanisms for people to challenge their detention; and detainees’ access to legal services and their capacity to engage with the legal system. The report notes major injustices within the immigration detention system – injustices that have been documented through official inquiries, NGO reports and media exposés – and suggests that much stronger safeguards are needed, including, most importantly, a statutory time limit on detention. This would put the onus on public authorities to make more careful decisions and act diligently.

Other findings and recommendations include:

A more robust statutory framework is needed. Broad statutory powers leave considerable room for discretion by Home Office decision-makers – which the report states is inappropriate given that detention involves deprivation of liberty and that deprivation is on administrative, not criminal, grounds.

Overhaul of the public administration of detention is long overdue. The risk of public harm is often poorly reasoned or evidenced; decisions are not made expeditiously; and mistakes are made with serious consequence for individuals and families.

A robust framework for preventing harm in detention is needed. Serious welfare concerns persist, and some interviewees suggested that the existing policy guidance may have made things worse in this respect.

Judicial review is not a substitute for better public administration and a clear statutory framework. Although judicial review provides a way to challenge detention for some, and case law has been generated that checks some of the excesses of the detention system, the law remains vague on key issues like reasonable length of detention.

Much better legal aid provision is needed. There are barriers preventing cases from getting to court; many people struggle to secure the free legal representation they need to challenge their detention; and outcomes for detainees without advice and presentation are poor. Consideration should be given to ‘polluter pays’ measures whereby the Home Office pays costs in cases it loses.

The report was commissioned by the Bar Council and can be accessed at the Bar Council website here.

In light of the independently produced report, the Bar Council is making the following recommendations to Government:

1. A 28-day time limit for administrative detention
2. Automatic judicial oversight of the arrangements for holding people in administrative detention
3. Adequate legal aid for advice and representation for those held in immigration detention to challenge the loss of their liberty
4. A ban on the use of prisons for the purposes of administrative detention
5. Special care for vulnerable people and victims of torture held in administrative detention, and
6. Review and clarification of the criteria for administrative detention. The relevant policy and rules need to be accessible and intelligible so that all those who are affected by the exercise of powers to detain understand the reasons for the exercise of those powers and can challenge decisions where appropriate

A short video is available here, including interviews with the researcher, Dr Anna Lindley, and practitioners including Colin Yeo, founder of the Free Movement website and blog.

Note:

UKAJI has published a ‘What do we know’ review by Robert Thomas and Joe Tomlinson on the design concerns in immigration judicial review and a ‘Rapid response’ review by Oliver Marshall on indefinite immigration detention.