Immigration Bill

Written evidence from Bail For Immigration Detainees (IB 15)

Part 1 Removal and other powers

About BID

BID is a national charity that provides immigration detainees in removal centres and prisons with free legal advice, information, representation, and training, and engages in research and policy work including " Fractured Childhoods: the separation of families by immigration detention ", (2013) and " The Liberty Deficit: long-term detention and bail decision-making. A study of immigration bail hearings in the First-tier Tribunal ", (2012). BID won the JUSTICE Human Rights Award 2010. Over the last year BID has assisted 3367 people held in immigration detention. BID also works through advocacy with civil serva nts via Home Office and HM Courts & Tribunals Service stakeholder groups. BID runs a bi-annual survey of legal representation acr oss the UK detention estate. The domestic and European courts have granted BID permission to intervene in a number of cases raising important issues regarding immigration detention policy and practice, including: Mustafa Abdi v United Kingdom (European Court of Human Rights, Application 2770/08) [1] ; SK (Zimbabwe) v SSHD UKSC 2009/0022 [2] ; Walumba Lumba (Congo) and Kadian Delroy Mighty (Jamaica) [2011] UKSC 12 [3] , and most recently by the Court of Appeal in the case of David Francis v SSHD (2013/2215/A).

Dr Julian Huppert - Amendment 39 – Immigration detention of children

Clause 1, page 2, line 32, at end add-

‘(7) The Secretary of State shall by order-

(a) ensure that children are not detained for immigration purposes; and

(b) ensure that if a child requires accommodation prior to departure for-

(i) a minimal pre-departure period with their family, or

(ii) the period until they can leave the country, where a child arrives

at a port of entry without a required visa, and makes no claim for

visa or asylum on arrival,

such accommodation must be provided.

(8) Accommodation set out in subsection (7) should be-

(a) suitable so as to ensure the child’s welfare needs can be met, and

(b) for the least amount of time practicably possible.

(9) Where subsection (7)(b) applies, the officer responsible must ensure that children are only separated from their parents and carers for the purposes of child protection.’

Purpose

To ensure that children are not detained for immigration purposes, and that children accommodated prior to removal from the UK are not separated from their parents other than for the purposes of child protection.

Briefing

In May 2010, the coalition Government committed to ending the immigration detention of children. BID and others welcomed this change, and would support legislation to prevent children being detained, given the considerable evidence that detention can cause serious harm to children. [4] In spite of the Government’s commitment, 242 children were detained in 2012. [5] 130 of these children were subsequently released, raising serious questions about why they were detained in the first place. [6]

Separation of families

Section 9 of this amendment would require that children accommodated prior to removal are only separated from their parents for the purposes of child protection. BID welcomes this measure, but is concerned that other parts of the Immigration Bill would allow children to be separated from their parents in a wide variety of circumstances.

The draft Immigration Bill includes measures to ‘ensure foreign criminals can be deported first and appeal after’ [7] (Clause 12, Subsection 3), and to restrict the circumstances in which people can appeal their deportation on the basis of private and family life (Clause 14). Both these provisions would greatly increase the circumstances in which families could be separated for the purposes of immigration control. The draft legislation proposes that in a wide variety of situations, children’s welfare would not even be considered before parents were deported.

In April 2013, BID produced Fractured Childhoods, a report on the separation of families for the purposes of immigration control ( http://bit.ly/11qcGhl ). It examined the cases of 111 parents who were separated from 200 children by immigration detention, and found that the Home Office repeatedly failed to safeguard children when making decisions to detain and deport parents. 85 of the 200 children were in fostering arrangements or local authority care during their parent’s detention. Some children moved between unstable care arrangements, were neglected, and were placed at risk of serious harm.

Mr David Hanson, Helen Jones, & Phil Wilson- Amendment 18 – Immigration bail

Clause 3, page 3, line 6, at end insert-

‘(5) In deciding whether to give consent to bail the Secretary of State will consider whether the applicant is pregnant.’

Dr Julian Huppert – Amendment 32 – Immigration bail

Clause 3, page 3, leave out lines 7 to 19

Dr Julian Huppert – Amendment 33 – Immigration bail

Clause 3, page 3, leave out lines 31 to 42.

Purpose: to maintain the current position that where loss of liberty is at stake, the First-tier Tribunal (Immigration & Asylum Chamber) retains its independent powers to deal flexibly and fairly with applications for release even where it has previously refused release during the preceding 28 days.

Briefing

Where loss of liberty is at stake it is not safe to completely deny immigration detainees access to an independent First-tier Tribunal judge for up to 28 days. Current bail guidance for First-tier judges (last reviewed in 2012) already provides for situations where a bail applicant applies again for release within 28 days of a previous refusal and on the face of it has no new evidence and no new circumstances (essentially the same thing as the no "material change" of the bill). Current guidance requires judges to offer only a curtailed hearing, the ability to offer up reduced volumes of evidence, and less time for legal representatives to consult with their client during the hearing [8] .

The Bill as introduced would create a two-stage bail application process where previously there was only one stage, at a cost to the public purse. In the year to end March 2013 the First Tier Tribunal received 11,971 applications for release on immigration bail [9] . Someone sufficiently legally qualified at the First-tier Tribunal will need to consider for each bail application whether

i) a previous application has been refused within the last 28 days, and

ii) whether or not there has been sufficient "material change in circumstance" to warrant consideration of the application.

Meaning of ‘material change in circumstances’ is not defined and is anyway highly susceptible to challenge. Decisions by the First-tier Tribunal (IAC) on what constitutes "material change in circumstance" will be susceptible to judicial review.

Further passage of time in detention should always be considered a "material change in circumstances" for the purpose of a bail application. By requiring detainees to wait for up to 28 days before making a further application for release this Bill trivialises both the fact and effect of immigration detention. Detainees in this position may have been held for months or years in detention. The senior courts have indicated that even very short periods of detention – sometimes a matter of days - may be found to be unlawful under certain circumstances.

BID’s recent research [10] shows that it is relatively common for the First-tier Tribunal (IAC) to make procedural errors or lack local knowledge in relation to electronic monitoring availability for example. This can be considered an acceptable by-product of rapid access and rapid decision making which are the hallmarks of the tribunal system. The provision in the Bill as introduced is unsafe as it fails to allow the First-tier Tribunal (IAC) to rapidly correct its own errors by means of a new bail application heard within a few days.

Mr F had been detained for nearly three years at the date of hearing. He was without travel documents and therefore unremovable until this was resolved. He had a significant history of self-harm and suicide attempts in detention. He was refused bail at a hearing in 2012 because the First Tier judge did not know that Home Office initial accommodation (‘Section 4 bail accommodation’) at Barry House in southeast London had the facility to monitor electronic tags where they were fitted as a condition of bail. Counsel’s attendance note stated: "It was submitted by the Presenting Officer in answer to a question by the [judge] that Barry House did not allow electronic monitoring. I contacted Barry House while still at the hearing centre to confirm the tagging point but was told by the manager that they do permit electronic tagging and in fact they had residents with tags on there currently. I asked him to send a fax to the Tribunal immediately confirming this since bail had been refused on the false basis that tagging was unavailable at Barry House. He agreed to this and did indeed send the fax. I immediately told the usher of the Court to inform the [judge] who was dealing with another application that this confirmation was coming through and that I wished her to reconsider the application in light of this. [The judge] received the fax but refused to reconsider the application stating that she would add the fax to the file for the next application. "In my opinion the [judge] should have reconsidered the application in light of the correct information about tagging at Barry House being provided within minutes of her refusal. She had commented that tagging provides certainty and she refused bail because she considered the applicant was a substantial risk of absconding". As legal representatives Bail for immigration Detainees lodged a further bail application for Mr F without waiting for 28 days, despite having no new grounds other than further time spent in detention. Mr F, an extremely vulnerable detainee, was granted release on bail.

November 2013