“Unaccountable, arbitrary, indefinite detention is a human rights abuse and a cruel anomaly in our system. I urge MPs on all sides to use their strength to end it”[i]
Harriet Harman MP
Immigration detention is not a legal term. It refers instead to policy and practice,[ii] and occurs when someone is deprived of their liberty or confined in a place where they cannot leave at will, such as a detention centre, holding facility or even prison[iii].
Within the UK, an asylum seeker or anyone found to be in breach of immigration rules may be detained at any time under the current immigration framework, with no maximum time-limit imposed upon immigration detention. The UK holds one of the largest detention estates in Europe, having held over 27,000 people during 2017, with an estimated 3,000 people potentially facing detention at any given time.[iv]
Unaccountable and arbitrary?
There is a clear lack of independent decision-making surrounding immigration detention, which is an administrative, Home Office procedure. As such, decisions to deprive individuals of their liberty are taken by Home Office representatives, with no need for judicial or other independent authorisation.[v] This has been highlighted across the political spectrum, with the Home Affairs Committee recently having reported a catalogue of failings across the system. It concluded that the Home Office has failed to manage a system of safe and humane detention, with policies sometimes not followed and even the wrongful detention of vulnerable individuals.[vi]
Likewise, a major overhaul of current practices was recently recommended by the Joint Select Committee on Human Rights.[vii] The Immigration Detention Inquiry Report describes the present system as “slow, unfair and expensive to run,[viii] and highlights the need for reform, putting forward a number of recommendations. These include ensuring a comparable level of safeguarding to the criminal justice system, with decisions taken independently and not by the Home Office. For unplanned detentions, the report recommends that independent judicial authorisation should be required for periods exceeding 72 hours, to allow time to obtain legal advice.[ix]
Detention features across our legal system, however, safeguarding mechanisms are usually present to ensure that decisions are taken fairly. In the criminal justice system, the decision to detain a suspect will not be taken arbitrarily but by the police and subsequently by an independent judge. A person may be held without charge for 24 hours, rising to 96 hours in limited circumstances, or for up to 14 days under counter-terrorism legislation[x]. The Mental Health Act 1983 provides for initial detention of up to 28 days if someone requires treatment and is posing a risk to themselves or to others.[xi] In each example, the decisions to deprive individuals of their freedom must be taken fairly and with due process, although they may often serve the wider public interest. In contrast, whilst an immigration detainee may pose no risk at all, the system is sorely lacking in independent decision-making processes and appropriate safeguarding mechanisms.
‘A human rights abuse’ – the practice of indefinite detention[xii]
Unlike other European countries, the UK imposes no maximum time-limit upon immigration detention. This means that when someone is detained by the Home Office, they have no idea when they may be released. Branded a ‘human rights abuse’ by Joint Select Committee Chair Harriet Harman MP,[xiii] the Report proposes introducing a maximum time-limit of 28-days. In practice, detention periods vary and usually last for days or weeks, although they may continue for months or even years. It is estimated that 20% of people are detained for two months or more,[xiv] and this indefinite deprivation of liberty can have a major impact on detainees’ mental health, causing additional, unimaginable trauma to already-vulnerable individuals.
The impact of immigration detention
“What would happen if an individual committed suicide while locked up in detention? What sort of impact is it going to have on their loved ones? A child could lose their parent, a person can lose their partner, a sibling can lose a sibling or a friend can lose a friend”
MISHKA, Freed Voices*
Detention is not the beginning of the migration journey for displaced people in the UK. In the UK, many are seeking safety as refugees, and it is within this context that the needs of this extremely vulnerable group should be assessed. Many have already experienced unthinkable trauma and loss, both in their homelands and during their escape. According to Freed Voices* however, Home Office caseworkers may be unqualified to make the relevant decisions and also face the potential conflict of having to decide upon a person’s fitness to be detained as well as authorising the detention itself. Staff have at times shown a ‘cavalier attitude’ in depriving people of their freedom,[xv] with those at risk not necessarily being released within a reasonable timeframe, leaving an unacceptably high number of vulnerable people trapped in detention.
Indefinite detention is often highly detrimental to health and wellbeing, with torture victims, disabled people, pregnant women and the elderly being held indefinitely. In many cases, overall healthcare provision within detention facilities is insufficient, especially for those living with medical conditions.[xvi] Many people are pushed to breaking point, with cases of self-harm having increased[xvii] to the extent that this is now a regular occurrence. Suicide attempts also appear to have become normalised in detention facilities, with over 20,000 people placed on suicide watch since 2017, and a total of 36 lives lost in detention centres since 2000.[xviii] Investigations and inquests carried out following the deaths of detainees have highlighted many shortcomings in treatment and care.[xix] The apparent acceptance of this unsustainable mental health crisis characterised by self-harm and attempted suicide is only present in the system of immigration detention; it is not a feature of any other form of state-care.
“During my time in detention, I have seen, met and spoken to a number of people whom I felt should have never been in detention in the first place (this does not mean that I think others should be in detention). I have come across torture survivors, people with special needs (people in wheelchairs), and people with severe depression and people whose mental and physical health deteriorated whilst in detention. I have come across a number of suicide attempts; I remember there were up to four people on suicide watch during my last week in detention”.
MISHKA, Freed Voices*
The present system of immigration detention is arbitrary and causes further, unnecessary harm to many already-vulnerable people, whose health and wellbeing is not being prioritised over immigration factors. It is clear that reform is urgently needed in order to safeguard the fundamental rights and freedoms of thousands of vulnerable individuals, to ensure that decisions that will ultimately deprive a person of their liberty are taken fairly and with due process. This is further indicated by the critically-evident physical and mental health crisis amongst immigration detainees, characterised by the apparent normalisation of self-harm and even attempted suicide.
The introduction of a system of independent decision-making and judicial authorisation would safeguard the rights of many people who pose no threat and whose detention would not serve the wider public interest. The practice of indefinite detention is inhumane and shown to cause serious harm;[xx] therefore a reasonable time-limit of 28 days should be introduced, when detention is necessary above all other alternatives, with individuals held for the shortest possible duration based on the circumstances and on a case by case basis.[xxi] Moreover, alternatives to detention ought to be further increased. Under the present system, most immigration detainees are eventually released back into the community, many with their immigration cases still unresolved and their detention having served little purpose other than to cause further and unnecessary trauma and harm. We can and must do so much better.
Please support Detention Action’s campaign to end indefinite detention here.
* With special thanks to Mishka from the Freed Voices group. Freed Voices is a group of experts-by-experience dedicated to speaking about the realities of detention and calling for detention reform
With thanks to Inquest and to Medical Justice for their support in producing this article
[ix] [ix] https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/1484/148403.htm