Legislative Scrutiny: Borders, Citizenship and Immigration Bill - Human Rights Joint Committee Contents


Memorandum submitted by London Detainee Support Group

INTRODUCTION

  1. London Detainee Support Group (LDSG) is a registered charity, which has been providing emotional support and rights-based advocacy to immigration detainees in the London area since 1993. LDSG maintains a pool of at least 50 volunteer visitors active at any one time visiting individual detainees, primarily at Harmondsworth and Colnbrook Immigration Removal Centres near Heathrow. LDSG staff recruit, train and supervise these volunteers, and conduct advice and casework for detainees, in particular representing detainees in applying for asylum support to enable them to access bail addresses. LDSG also works to improve detention policy and practice, using evidence collected in our visits and casework, through producing submissions and reports highlighting key issues, lobbying policy-makers, and identifying and referring potential test cases for legal challenges.

  2. Our response to the Committee's Call for Evidence on the draft Immigration and Citizenship Bill will focus on the issues of immigration detention and bail.

EXECUTIVE SUMMARY

  3. Immigration detainees already experience indefinite curtailment of their right to liberty, which in many cases is likely to breach their Article 5 ECHR rights. The draft Bill not only misses the opportunity to improve safeguards, it proposes to make a bad situation worse by formally legislating for the casualness with which the UK Border Agency already approaches the deprivation of liberty. The draft Bill proposes wide new powers for the Secretary of State and a significant reduction of the ability of the Asylum and Immigration Tribunal to restrain them. It reverses the presumption of liberty in certain circumstances and threatens to prevent some detainees from seeking their release through bail. As a result, it is likely to lead to an increase in unnecessary indefinite detention causing breaches of Article 5 ECHR.

  4. Our concerns have regard to the following issues:

    (a) The replacement of the presumption of liberty with automatic indefinite detention.

    (b) The power to refuse to consent to a grant of bail.

    (c) The independence of the Asylum and Immigration Tribunal in considering bail.

    (d) Requirements for financial sureties in applying for bail.

    (e) Powers of expulsion without appeal in the case of a single breach of a reporting restriction.

  The replacement of the presumption of liberty with automatic indefinite detention

  5. The draft Bill legislates for automatic indefinite detention that is disproportionate and discriminatory. Clause 55(4) reverses the presumption of liberty by requiring the Secretary of State to detain anyone subject to an expulsion order unless she believes it to be inappropriate. No indication is provided as to which circumstances would be expected to lead the Secretary of State to consider detention to be inappropriate. This is incompatible with the presumption against detention recommended by the UNHCR Revised Guidelines.[395]

  6. This clause legislates for one of the most problematic aspects of current detention policy, the automatic indefinite detention of ex-Foreign National Prisoners (ex-FNPs). Factors which would normally make detention unlikely to be appropriate, such as evidence of torture, severe mental or physical health problems, or the presence of substantial obstacles to removal, are disregarded where there is a criminal conviction. As a result, people are detained for periods of years, even where there is independent medical evidence of dramatic deterioration in their health.

    B has been detained since September 2006, a continuing detention of 25 months. He has been diagnosed with severe Post Traumatic Stress Disorder, and hallucinates soldiers coming to kill him in his room in detention. He has previously served a six month sentence for using a false document, which he had obtained in order to work as he had been destitute since the refusal of his asylum claim.

  7. Automatic indefinite detention leads to breaches of Articles 5 and 14 ECHR, as long-term detention takes place even where deportation is impossible. De facto stateless people who cannot obtain travel documentation to return to their country of origin cannot be deported, the stated aim of immigration detention. As a result, the policy of automatic indefinite detention is discriminatory as it leaves them far more likely to be detained for long periods. Indefinite detention functions in practice as an improvised extension of the criminal justice system, and is experienced by detainees as punitive. The Bill threatens to exacerbate the tendency of the UK Border Agency (UKBA) to use detention not as a means of effecting removals but as a long-term limbo for people considered to be undesirable. Immigration Removal Centres are not designed or equipped for this purpose, the current legislative framework does not recognise it, and it is in contravention of human rights standards. LDSG is currently supporting 64 detainees who have been held for more than a year and 73 from countries which are known to routinely refuse to issue travel documentation.

    P had come from a war-torn African country as a child to join his family, who had refugee status. He served a number of short prison sentences as a teenager. He was detained in June 2006 following a driving conviction. The Embassy of his country of origin routinely refuse to issue travel documentation to nationals without passports, and have refused to allow P to return. He has been detained for 28 months.

  8. A similar situation applies to ex-FNPs who cannot be deported because their country of origin is too dangerous for deportations to take place. No forced removals are currently possible to south/central Iraq and south/central Somalia because of Foreign and Commonwealth Office advice against unnecessary travel. In addition, removals are suspended to Zimbabwe, the Democratic Republic of Congo and of Darfuris to Sudan. Asylum seekers from these countries are also subject to extreme long-term detention, which amounts to a form of psychological pressure to apply for voluntary return to situations of extreme danger.

  9. The draft Bill misses the opportunity to address one of the gravest deficits of the current detention regime, the absence of a maximum time limit for detention. The UK is one of a small number of developed nations which still practice indefinite detention, contrary to the explicit recommendations of the Office for the High Commissioner of Human Rights[396] and the Working Group on Arbitrary Detention.[397] This policy also forces the UK to derogate from the EU Returns Directive, which provides for a maximum of 18 months of detention. The absence of a time limit dramatically increases the likelihood of detention becoming arbitrary, and therefore in breach of Article 5 ECHR. A maximum time limit on detention should be introduced. Where the process of documentation takes longer than this, community-based alternatives to detention should be used.

  10. The Bill threatens to exacerbate the tendency of the UK Border Agency (UKBA) to use detention not as a means of effecting removals but as a long-term limbo for people considered to be undesirable. Immigration Removal Centres are not designed or equipped for this purpose, the current legislative framework does not recognise it, and it is in contravention of human rights standards. However, LDSG is supporting 64 detainees who have already been detained for over a year. A large proportion of these detainees are likely to be de facto stateless, as they are from countries such as Iran and Algeria which routinely refuse to allow the return of their nationals. No legitimate purpose is achieved by holding these detainees for periods of years. At present the majority are ultimately granted bail, but the draft Bill could severely reduce their access to bail and perpetuate unnecessary detention for even longer periods. The Bill should require that UKBA return to a policy of detention used only as a last resort to facilitate removal, in order to avoid violations of Article 5 ECHR.

THE POWER TO REFUSE TO CONSENT TO A GRANT OF BAIL

  11. Clause 62(2)(c) allows the Secretary of State the power to refuse to consent to a grant of bail "where the person's removal from the United Kingdom is imminent". This is an extraordinary restriction on the autonomy of the judiciary. The imminence of a removal is already a factor to which the Asylum and Immigration Tribunal give great weight in considering bail. In normal circumstances, the Tribunal would simply not grant bail if removal is imminent.

  12. UKBA routinely oppose bail on the grounds of imminence of removal, even where it is clear that intractable obstacles to removal remain. LDSG is aware of a number of instances where inaccurate claims have been made on behalf of the Secretary of State that removal is imminent. On rare occasions the Asylum and Immigration Tribunal have decided to grant bail on the basis of the available evidence that removal was not imminent. The power to do this is a vital safeguard protecting the rights of detainees from abusive practices.

  13. The power to veto bail should be removed as it is unnecessary, invites abuse and is likely to lead to an increase in arbitrary detention in breach of Article 5 ECHR. It is essential that the Tribunal retain unrestricted authority to grant bail from detention.

  14. The Bill also once again fails to provide for automatic bail hearings for all detainees, as provided for by Part 3 of the Immigration and Asylum Act 1999 but never implemented and subsequently repealed.

THE INDEPENDENCE OF THE TRIBUNAL IN CONSIDERING BAIL

  15. Clause 62(6) requires the Tribunal to have regard to a number of specified factors in deciding whether to grant immigration bail. All are factors that would suggest a refusal of bail. There is no reference to the many factors that would be expected to weigh in favour of bail, such as length of detention, prospects of removal, age, history of torture, mental or physical ill-health. No evidence has been provided that the Tribunal are currently unable to assess objectively all available evidence, in order to justify this interference with the framework of judicial decision-making.

  16. In particular, Clause 62(6)(d) requires the Tribunal to consider the likelihood of the person's presence in the United Kingdom on bail being not conducive to the public good. No definition of "not conducive to the public good" is provided, nor clarification provided as to how the Tribunal should assess this likelihood. However, the majority of current detainees have deportation orders due to previous criminal convictions, and as such have been assessed as not conducive to the public good. Since the imposition of a deportation order appears to be the only apparently relevant factor here, the Tribunal would arguably have no choice but to consider all detainees with deportation orders to be not conducive to the public good, and therefore unlikely to be appropriate for bail. This would be the case even where there is considered to be no risk of reoffending, as this is covered separately at 62(6)(c). This could implement a form of permanent detention for de facto stateless detainees with deportation orders who cannot return due to the unavailability of travel documentation. These detainees may become effectively excluded from the possibility of bail, increasing the likelihood of arbitrary detention in breach of Article 5 ECHR.

  17. This clause seems designed to further weight bail hearings against applicants and may compromise the independence of the Tribunal. The Bill should not limit the Tribunal's authority to assess how much weight to grant to factors for and against bail. Clause 62(6) should be deleted as it serves no legitimate purpose and could cause a breach of Articles 5 and 6 ECHR.

REQUIREMENTS FOR A FINANCIAL SECURITY IN APPLYING FOR BAIL

  18. The requirement at Clause 64(1) to deposit a financial security up front before the detainee is granted bail would make it significantly more difficult for detainees to obtain sureties. The majority of detainees are asylum seekers, and few have wealthy friends. Where sureties are provided, at present the Tribunal considers bank statements and assesses whether the proposed surety is substantial enough to demonstrate confidence in the detainee's future compliance. A surety who knows that he is likely to lose access to his money for an extended period even if the detainee is compliant will by definition not be able to offer a sum of money that he cannot afford. As such, the proposal would undermine the effectiveness of the system of sureties. It appears to serve no purpose other than to make it more difficult for detainees to obtain substantial sureties. It also raises substantial questions about UKBA's capacity to hold and promptly return when required many thousands of financial deposits. Clause 62(11) would increase the likelihood of detention becoming arbitrary and in breach of Article 5 ECHR.

POWERS OF EXPULSION WITHOUT APPEAL BASED ON A SINGLE BREACH OF A REPORTING RESTRICTION

  19. Clauses 37(4)(d) and 171(3)(a) provide a power to expel based on a single failure to report. No appeal rights are provided. This is a disproportionate and unreasonable measure that will discriminate against the most vulnerable. For example, migrants with serious health conditions are more likely to have emergency health appointments, which are in LDSG's experience a common reason for missing a reporting event. Likewise, migrants with serious mental health conditions such as Post Traumatic Stress Disorder, which can require medication with disorientating side-effects, find it far more difficult to report reliably. We also question whether the accuracy of the UK Border Agency's record-keeping is sufficiently reliable to provide the basis for such an unconstrained power. Failure to report is already routinely used by UKBA as a reason for opposing bail, yet in many cases our clients have disputed the allegations, and UKBA has been unable to provide any supporting evidence. These clauses should be removed. At a minimum, an automatic right of appeal should be provided to allow appellants to challenge errors of fact or assert reasonable grounds for failing to report.

October 2008







395   UNHCR "Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers" (n47). Back

396   OHCHR, Administrative Detention of Migrants, http://www2.ohchr.org/english/issues/migration/taskforce/docs/administrativedetentionrev5.pdf Back

397   Working Group on Arbitrary Detention, E/CN.4/2000/4. Back


 
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