Summary of findings
- The decision to detain is an administrative power held by UKBA and Border Force officers and is not sanctioned by the judiciary. The law and UKBA’s own policy make it clear that detention should only be used as a last resort, but both inspectorates have raised concerns that this is not always the case and that detention is not always subject to sufficiently rigorous governance. The inspectorates therefore decided to conduct a joint thematic review to explore the issues in depth. The primary objectives were to examine the efficiency of UKBA’s immigration detention casework and the impact of that casework on people in detention.
- On 31 March 2012 there were 3,034 detainees held in one of the three residential short-term holding facilities (STHFs), 10 immigration removal centres (IRCs) or the new pre-departure accommodation for families with children.2 About two-thirds of the 6,870 people who left detention during this quarter were removed and the remainder were released into the community. Forty-two detainees had been held for more than two years.
- Unlike most European Union (EU) member states, there is no finite time limit on how long detainees can be held.
The decision to detain
- On the whole we found that the initial decision to detain was properly authorised and the reasons for detention were recorded. However, in some cases it was clear that not all relevant factors were considered before someone was detained, including the age of the detainee and, in a particularly serious case, whether the detainee was a victim of trafficking.
The effectiveness and impact of immigration detention casework: a joint thematic review
- About a quarter of detainees said that the reasons for detention were not explained to them. Indefinite detention was described by many detainees as a disproportionate punishment. In the case of ex-foreign national prisoners, case owners assessing the risks of reoffending did not take enough account of information available from the National Offender Management Service (NOMS), including pre-sentence reports and offender assessment system (OASys) assessments. Little effort was made to contact offender managers and take advantage of their expertise in risk assessment.
- In 30% (n=24) of cases at least one monthly detention review was missed, conducted late or not on file. In 59% (n=48) of cases detention was not always reviewed at the right level of authority. Many reviews did not consider all factors relevant to the case, including family ties and health problems. Factors that might support a detainee’s case for release were regularly under-recorded, while detrimental information was recorded in detail.
- In our interviews, 67% of detainees said they had health problems, with 53% describing mental health problems, such as depression, stress and anxiety. Those held for more than six months were much more likely to describe such symptoms. Five detainees told us they had posttraumatic stress disorder (PTSD), and others mentioned experiences of torture and symptoms that might indicate PTSD. Some, with problems including post-traumatic stress and suicidal tendencies, were not dealt with in light of their individual circumstances or in accordance with UKBA’s stated policy. The Rule 35 process did not provide the necessary safeguards for vulnerable detainees. In our sample, a torture survivor had been detained without a clear indication of the exceptional circumstances that had led to his detention.
- A lack of coherence in the review process was demonstrated by the fact that detention was reviewed in isolation from previous reviews, and actions set previously were not checked for completion. There was inconsistent adherence by case owners to the Hardial Singh principles that removal of detained people must occur within a ‘reasonable period’. Many monthly progress reports appeared to have been provided as a matter of bureaucratic procedure rather than as a genuine summary of progress, and some detainees found them difficult to understand.
- Detainees reported difficulties with obtaining good quality legal advice and around a quarter (27%, n=22) told us they did not have legal representation. A fifth of those held for more than six months (19%, n=9) said they had not made a bail application. More restrictive Legal Service Commission (LSC) funding rules mean that there are now fewer providers in a position to take on detainees’ cases.
Case progression and reasons for prolonged detention
- Time-consuming asylum claims and problems with travel documentation were commonly cited reasons for prolonged detention. Our file analysis showed that in about two-thirds of cases (65%, n=53), a travel document was not available. In a third of cases (33%, n=27) there was no travel document and it was considered difficult to obtain one. Most detainees (77%, n=62) in our interview sample said they did not have a travel document. In most cases travel documentation problems could not easily be resolved by UKBA action, but there was a lack of strategic approach to managing cases where there was, or was likely to be, a problem in obtaining travel documents. Many detention reviews accused detainees of failing to cooperate The effectiveness and impact of immigration detention casework: a joint thematic review and, if this was the case, prosecution for non-compliance should have been considered under section 35 of the 2004 Asylum and Immigration (Treatment of Claimants) Act.
- We found a number of cases where asylum claims were not dealt with efficiently, leading to periods of detention that were not the fault of detainees. In a quarter of the file sample (20 cases), inefficiencies in casework were the main explanation for ongoing detention, and in a further 10 cases there were delays in removing people. Files were in poor condition, making cases hard to understand, and missing information could have included documents to establish the validity or otherwise of unlawful detention claims.
- Ex-prisoners could be detained under immigration powers for long periods even after serving lengthy prison sentences. The high level of authorisation needed to release ex-prisoners was inconsistent with the presumption in favour of release. None of the ex-prisoners dealt with by the Criminal Casework Directorate (CCD) were released, but a quarter of the non-CCD cases were released. Detention of ex-prisoners appeared to have become the norm rather than as a rigorously governed last resort.
- The UK Border Agency should conduct detention reviews on time and with the appropriate level of authority. All factors for and against detention should be recorded in detail and carefully considered. Progress on previous actions should be monitored by the authorising officer by way of a continuous action plan.
- The UK Border Agency should only detain torture survivors in exceptional circumstances, which should be clearly documented on file and explained to the detainee.
- An independent panel should be established to examine all cases of detainees held for lengthy periods (the exact period to be defined by the panel after consultation) to establish if prolonged detention is justified for exceptional and clearly evidenced circumstances only. It should publish its findings annually. UKBA should expeditiously review all cases in which the panel recommends release and publish its response.
- The UK Border Agency should resolve the cases of foreign national prisoners before the end of their sentences unless there are very exceptional and clearly evidenced circumstances to prevent this. Case owners should obtain from NOMS all relevant risk information and take account of in their assessments, noting when it is not available.
- The detention of ex-prisoners should be reviewed by officials who have the authority to release, and adhere to the presumption in favour of release.
Decision to detain
- The UK Border Agency and Border Force should tell detainees the reasons for their detention in a language they understand, and give them this in writing. The information should be repeated at the UKBA induction at immigration removal centres.
- The effectiveness and impact of immigration detention casework: a joint thematic review.
- The UK Border Agency and Border Force should not detain or maintain the detention of anyone without full consideration of all relevant factors, and this should be documented on file.
- The UK Border Agency should ensure that all detainees are informed of their legal right to apply for bail, and how to do so, with each monthly progress report.
UK Border Agency progress reports should provide an update on the last report rather than repeating information from previous reports. They should be written clearly and in a language that detainees can understand.
- The UK Border Agency should decide detainees’ asylum claims in a timely manner.
- The UK Border Agency should keep files in an orderly manner and implement a file review regime.