Immigration detention has been a key factor in the immigration governance of the United Kingdom, as well as one of the largest and most scrutinised immigration detention systems in Europe. It refers to the administrative practice of the Home Office[1] to detain immigrants and asylum seekers at any point of the immigration process for the purpose of immigration control. For the department to exercise its discretionary power to detain foreign nationals, one or more of the following policy reasons must apply: effect removal, verify their identity, establish the grounds of immigration or asylum claims, prevent absconding, seek alternative arrangements for their care, and/or guarantee the protection of the public good.
In line with European and international standards, Home Office policies indicate that detention must be used sparingly, when there are no reasonable alternatives and for the shortest period necessary. According to domestic law, these alternatives include electronic tagging, regular reporting, bail with sureties and residence restrictions, and “must be considered before detention is authorised”. In practice, however, this has not been the case. No proof is required that alternatives are ineffective or have been correctly implemented – detention decisions and orders are left to the discretion of the Home Office. In addition, Mr Jerome Phelps, formerly Director of the International Detention Coalition and Detention Action, explains that, having opted out of the Asylum Acquis and the Returns Directive, the UK did not apply EU immigration law and continues not to apply a time limit to detention. Therefore, although foreign nationals should be detained by law only for short periods, they “can be detained indefinitely, in the past sometimes for periods of 5 to 8 years, if they can’t be deported”.
As a result of the hard-line enforcement-based detention approach adopted by the government between the early 1990s and the first years of the millennium, the UK has also established one of the largest immigrations estates in Europe. It, currently, includes seven Immigration Removal Centres (IRCs), two Short-Term Holding Facilities (STHFs), one pre-departure accommodation facility (PDA) and thirty short-term holding rooms at entry points, which in 2019 held 24,052 people.
Over the past ten years, however, this hard-line enforcement-based approach has gradually changed due to increased institutional, civil society, media and public concern. “There has been a very effective campaigning,” Mr Phelps observed during our interview a couple of weeks ago, “it has mobilised a wide range of voices, including faith leaders, Conservative MPs from the governing party, communities, but also with strong leadership of migrants, experts-by-experience who have experienced indefinite detention and have an active role in leading advocacy against it”. All this has been complemented by strong strategic litigation from civil society organisations that proved essential on several occasion and on different fronts. The legal challenges brought by Detention Action, for instance, have successfully managed to suspend the Detained Fast Track[2]in 2015 and, more recently, to release 350 detained in one week amidst the Covid-19 outbreak.
On top of that, according to Mr Phelps, “there has been growing momentum: the parliamentary inquiry into detention, along with detention-related scandals[3] persuaded the government to hold its own investigation”. The latter echoed many of the concerns that had been presented by civil society organisations, the Probation and Prison Ombudsman, Stephen Shaw, and the United Nations monitoring bodies. “It led the government to increasingly commit to reducing the scale and length of detention, and move towards developing alternatives,” he added.
The reforms to immigration detention announced by the Immigration Minister in 2019 included more precisely: the promotion and encouragement of voluntary returns, a 30% reduction of the number of detained immigrants, an increase in the face-to-face engagement with detainees, and improved contact between them and their caseworkers. In parallel, “the Home Office is in the process of developing with civil society a series of alternatives pilots to test and explore how alternatives can be used to support what is now the stated government policy of reducing its reliance on detention”, Mr Phelps informed us.
The first of these government-funded alternatives to detention projects was launched by the Home Office in December 2018 and is run by Action Foundation. The pilot, which is called Action Access, aims at enabling the release of vulnerable women who are detained, or who would otherwise be detained, in the Yarl’s Wood IRC, in the North of England. In order to do so, it provides individualised case-management, personalised assistance and housing support to 21 women over the age of 18, without dependants, who have no offending history and no imminent removal order, and who have been refused asylum. With the support of case managers, these women are able to explore all their options, make informed decisions and, eventually, resolve their immigration cases in a community context, outside detention.
One-to-one case-management has also been key in several other civil society-run pilot projects on alternatives to detention. In 2014, for example, Detention Action, began piloting the Community Support Project for young male ex-offenders, which is the group most exposed to indefinite detention. By assisting them to fulfil the conditions of their release, participate in the community and maintain contact with the authorities, the pilot’s aim is to allow for their release and reduce their risk of absconding or reoffending. In the framework of the project, the Charity has “gradually built trust relationships with the Home Office to enable migrants to be released onto that project and to support the Home Office to shift away from routinely detaining migrants for periods of years when they cannot be deported”, Mr Phelps said.
Therefore, although the UK continues not to apply a time limit to detention, the combination of the abovementioned factors has resulted in an impressive reduction of the overall use of immigration detention and in a greater reliance on its alternatives. Over the past 5 years the detained migrant population has decreased of more than 40% and the recent responses to the Covid-19 emergency reflect this trend.
On 25 March 2020, the legal challenge brought by Detention Action in front of the UK High Court led to the release of over 350 people. Detention Action argued that the government had failed to protect detained foreign nationals from the virus. Given the suspension of deportations, detention for the purpose of removal was no longer lawful, nor was it reasonable to continue restraining people in at-risk environments. The inability to take social distancing measures and guaranteeing adequate sanitary conditions made these centres ideal incubation areas for the rapid spread of coronavirus. Bella Sankey, director of Detention Action, stressed that: “In the midst of a global pandemic, administrative detention puts those interned in grave danger. And maintaining detention, when the evidence […] is that detention centres act as ‘epidemiological pumps’ puts us all at unnecessary risk”.
Yet, one month later, up to 1,000 people were still detained under immigration powers. The High Court had rejected the call for their release affirming that the Home Office had taken adequate and sufficient precautions to protect them from the virus. These included enhanced screening and monitoring measures, self-isolating structures for the most vulnerable, improved cleaning standards and social spacing in communal areas. Nevertheless, requests for release continued to be submitted and, as of 07 May 2020, around 368 people were left in semi-empty immigration detention centres. Since the start of the COVID-19 pandemic, the detained migrant population in the UK had dropped by more two thirds.
Working with released detainees, several charities, among which Detention Action, Medical Justice and Association of Visitors to Immigration Detention, have urged the Home Office to fulfil its obligation to safely house released foreign nationals. It is crucial that the competent authorities provide support and accommodation to those released to ensure that they can actually leave the centres, comply with Covid-19 precautionary measures, and avoid being in homelessness and destitution.
