The UK Government has drawn criticism from regional and international bodies for its immigration detention policy and practice. Many of these bodies highlight the same concerns as the Detention Forum: the indefinite nature of immigration detention in the UK; the detention of vulnerable individuals and groups; the lack of robust, automatic judicial oversight; and insufficient attention to alternatives to detention.European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is a non-judicial preventive mechanism established under the Council of Europe’s European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Committee members visit places of detention in each member state (including prisons, police stations, psychiatric hospitals and immigration detention centres) to assess the treatment of people deprived of their liberty. Afterwards, they send a detailed report with recommendations to the state government, and request a response. Visits usually take place every 4 years.
The Council of Europe is an international organisation whose aim is to uphold human rights, democracy and the rule of law in Europe. The UK is one of 47 member states, which include most of the 28 members of the European Union in addition to other states around the world. The Council cannot make binding laws, but it does have the power to enforce select international agreements reached by European states on various topics, including via the European Court of Human Rights.
The Committee visited Yarl’s Wood and Colnbrook Immigration Removal Centres (IRCs) and raised several concerns in its latest report:
- The negative impact of the indefinite nature of detention was again noticeable during this visit, despite the fact that a number of inquiries have recently also challenged the lack of time limit and other aspects of immigration detention (para.179).
- The decision to detain is a purely administrative one taken by Immigration Officers or Home Office caseworkers, and is not automatically reviewed by a court or an independent review body (para.178).
- Foreign nationals continue to be held in prisons at the end of their sentence, rather than being transferred to an IRC (para.180).
In its response to the CPT’s 2017 report, the UK Government states that:
- Although there is no fixed time limit on immigration detention in the UK, published Home Office detention policy is clear that there is always a presumption of liberty and that detention should only ever be used sparingly, and domestic case law is clear that detention powers can be exercised only if there is a reasonable prospect of an individual’s removal from the UK within a reasonable timeframe (para.266).
- Once an individual has been detained their detention remains under review at least at monthly intervals to ensure that it remains lawful and in line with Home Office policy (para.267).
- The UK Government accepted the broad thrust of the recommendations made by Stephen Shaw in his review of immigration detention, and has made a number of changes (see paras.269-275).
- There is now a duty on the Secretary of State to arrange consideration of bail before the First-tier Tribunal at four months from the point of initial detention, or the date of the last Tribunal consideration of bail, and every four months thereafter (para.268).
- All foreign national prisoners are risk assessed at the end of their sentence to determine their suitability for a transfer into the immigration detention estate, ensuring that the security and safety of the estate is maintained (para.275).
In this factsheet, the Committee is strongly critical of indefinite detention. The UK is the only country in Europe not to have a time limit on immigration detention.
The prolonged detention of persons under aliens legislation, without a time limit and with unclear prospects for release, could easily be considered as amounting to inhuman treatment.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2017), p.2
United Nations Human Rights Council
The Human Rights Council is a United Nations intergovernmental body responsible for strengthening the protection of human rights and addressing human rights violations around the world. It is comprised of 47 UN member states elected by the UN General Assembly.
Its Universal Periodic Review (UPR) mechanism allows the Council to assess the human rights situation in each UN member state on a rolling basis. Each UPR is conducted by the Human Right’s Council’s UPR Working Group which is made up of all 47 members of the Human Rights Council, though any of the UN Member States may participate in the UPR.
The reviews are based on information provided by the State under review; information from the reports of independent human rights experts and groups, human rights treaty bodies, and other UN entities; and ‘shadow reports‘ from other stakeholders including national human rights institutions and non-governmental organisations.
This report voiced concern about the lack of a statutory time limit on immigration detention in the UK. Several states recommended the introduction of a time limit, ending the detention of vulnerable individuals, and the implementation of alternatives to detention.
In its response, the UK Government observed that:
- Although there is no statutory time limit on immigration detention in the UK, it is not lawfully possible to detain persons indefinitely. UK detention policy operates with a presumption of liberty: detention must be a last resort and alternatives to detention (temporary admission or temporary release) must be considered before a decision to detain is made (p.18).
- Once detained, an individual’s continued detention remains under regular review by the UK Government to ensure that it remains lawful and in line with government’s policy. Where this no longer applies, detainees are released. Individuals may also apply for release from detention on immigration bail and challenge the lawfulness of their detention in the courts (p.18).
A Working Group on Arbitrary Detention was established in 1991 to investigate cases of arbitrary deprivation of liberty, communicate with governments and civil society organisations, publish deliberations, and report annually to the Human Rights Council.
This briefing finds that:
- Indefinite detention of individuals in the course of migration proceedings cannot be justified and is arbitrary, and a maximum detention period in the course of migration proceedings must be set by legislation, and such detention shall be permissible only for the shortest period of time (paras.25-26).
- The right of anyone deprived of his or her liberty to bring proceedings before a court in order that it may decide without delay on the lawfulness of his or her detention and obtain appropriate remedies upon a successful challenge, is a self-standing human right, the absence of which constitutes a human rights violation (para.29).
- Alternatives to detention must be sought to ensure that the detention is resorted to as an exceptional measure (paras.16-18).
- Detention of migrants in other situations of vulnerability or at risk, such as pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, lesbian, gay, bisexual, transgender and intersex persons, or survivors of trafficking, torture and/or other serious violent crimes, must not take place (para.41).
United Nations Committee Against Torture (CAT)
The UN Committee Against Torture is a body of ten independent experts that monitors the implementation of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by states parties. It was established by the UN General Assembly under Article 17 of the Convention, and first met in 1988.
States parties are required to submit regular reports which the Committee examines, setting out its concerns and recommendations in the form of ‘concluding observations’. Evidence can also be submitted by civil society organisations for consideration by the Committee in the form of an alternative ‘shadow report’. In some circumstances, the Committee is also able to undertake inquiries and consider individual and inter-state complaints.
In its latest response to the UK, the Committee urges the government to:
- Refrain from detaining irregular migrants and asylum seekers for prolonged periods, use detention as a measure of last resort only for as short a period as possible, and continue the application of non-custodial measures (para.55(b)).
- Consider setting in law a reasonable time limit on the duration of administrative immigration detention (para.55(c)).
The Committee is very concerned by reports that victims of torture are routinely detained for immigration purposes in the State party and that the State party’s ‘Adults at Risk in Immigration Detention’ policy and Rule 35 (3) of the Detention Centre Rules 2001 are largely ineffective at identifying victims of torture and have not resulted in the release from detention of the vast majority of those people who are at risk of suffering serious harm as a consequence of detention. The Committee expresses concern that the time limit for immigration detention is still not defined by law, and that the State party has no current plans to change this policy (para.54).
The 2019 civil society alternative report and the Committee’s previous Concluding Observations (2013) also raise concerns about indefinite detention and the detention of people vulnerable to harm.
National Preventive Mechanism (NPM)
States that ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) are required to designate a ‘national preventive mechanism’ (NPM). This is a body or group of bodies that regularly examine conditions of detention and the treatment of people in detention, make recommendations, and comment on existing or draft legislation with the aim of improving treatment and conditions in detention.
The UK’s NPM has been operating since 2009 and is comprised of over 20 existing bodies responsible for monitoring places of detention across the UK, including prisons, immigration removal centres and short term holding facilities.
In his introduction to the NPM’s most recent annual report, NPM Chair John Wadham decried the lack of a time limit on immigration detention.
Unfortunately, there is still much more to do and those that visit and inspect are often swimming against the tide – a large and growing prison population, no limit on the period that people can be kept in immigration detention, and too many people in segregation or isolation (in prisons within prisons).
United Nations High Commissioner for Refugees (UNHCR)
UNHCR, the UN Refugee Agency, is a global organization dedicated to saving lives, protecting rights and building a better future for refugees, forcibly displaced communities and stateless people.
UNHCR Detention Guidelines (2012)
In 2012, the UNHCR published comprehensive guidelines for governments, legal institutions and civil society organisations working on immigration detention. Among other recommendations, the guidelines stipulate that:
- Maximum time limits on detention should be established in law
- Decisions to detain or extend detention must be subject to minimum procedural safeguards
- Detention is an exceptional measure and can only be justified for a legitimate purpose
- Alternatives to detention need to be considered
As part of its Global Strategy – Beyond Detention 2014-2019, UNHCR is working with governments, international and national non-governmental organizations and other relevant stakeholders to address some of the main challenges and concerns around governmental detention policies and practices around the world. Its main areas of focus include vulnerability and alternatives to detention, and it has published a number of briefing papers on these issues.
With respect to the UK, UNHCR is focusing on the introduction of a time limit on immigration detention, and the implementation of alternatives to detention.
The UK is one of UNHCR’s 12 focus countries. In its initial action plan, UNHCR observed that:
- The UK relies on and utilises detention in asylum procedures more frequently than in other countries in the EU. In 2014, over 30,000 individuals entered immigration detention, almost 14,000 of whom were asylum-seekers. The UK is also one of a handful of countries without a maximum time limit on immigration detention.
- UNHCR will work with the Government and with other partners to explore the possibility of developing a policy on alternatives to detention, including introducing alternatives to detention for asylum detainees on a pilot basis in the UK.
- UNHCR is also focused on supporting the introduction of a maximum time limit on immigration detention in the UK.
Progress Report for the UK (2016)
In its following up progress report, UNHCR recognised progress made:
- Detained Fast Track (DFT) successfully challenged in court by Detention Action and individual claimants and subsequently suspended.
- Launch by the NGO Detention Action in April 2014 of a new pilot alternative to detention (ATD) project for ex-offender men aged 18-30 at risk of long-term immigration detention, a project whichpromotes compliance with conditions of release and minimises risk of re-offending through assisting reintegration through one-to-one case managementand community participation.
- Parliamentary inquiry into the use of immigration detention generated Parliamentary debates in both the House of Commons and the House of Lords, calling on the UK Government to implement a time limit for detention and to explore the use of alternatives.
- Publication of the Shaw Review commissioned by the Home Office to review the welfare of detainees,which reveals the damage of immigration detention on mental health and calls for a reduction in its use.
However, it also drew attention to factors that still need to be addressed:
- The UK still does not have a time limit on detention and only minimal progress was achieved through the Immigration Act 2016, which introduced automatic judicial reviewafter 4 months of detention and a time limit of not more than 72 hours for pregnant women
Council of Europe's Group of Experts on Action against Trafficking in Human Beings (GRETA)
GRETA is responsible for monitoring the implementation of the Council of Europe’s Convention on Action against Trafficking in Human Beings by states parties. It conducts visits and publishes country reports evaluating steps taken to give effect to the Convention.
GRETA observed that many potential survivors of trafficking continue to be held in immigration detention in the UK. It recommends that the UK government:
- improve the identification of victims of trafficking in detention centres and ensure that following a positive reasonable grounds decision, possible victims of trafficking are speedily removed from detention and offered assistance and protection as provided in the Convention (para.167).
Equality and Human Rights Commission
On a national level, the Equality and Human Rights Commission is an independent statutory body with the responsibility to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote the human rights of everyone in Britain.
Torture in the UK (2019)
In its 2019 submission to the UN Committee Against Torture, the Commission called for an end to indefinite detention.
- The EHRC is concerned that, for individuals at heightened risk of being harmed by the experience of detention, the lack of a time limit on immigration detention may contribute to violations of the prohibition on torture, inhuman and degrading treatment (pp.40-41).
The Commission’s recommendations to the UK government include:
- Introduce a 28-day time limit on immigration detention in line with the recommendations of the UNHCR and ensure that detention is used only as an administrative measure of last resort.
- Ensure effective oversight, monitoring and complaints policies and procedures in the immigration detention estate to ensure that any ill-treatment is immediately identified, that steps are taken against the people who are responsible, and that lessons are learned to prevent any further ill-treatment occurring.
- Introduce independent processes, both when a decision to detain is made and during detention, for the identification of those people who may face a particular risk of harm in detention, and review detention policies and rules to ensure such individuals are detained only in exceptional circumstances.
These recommendations echo earlier recommendations in a 2017 letter to the Home Secretary about the concerns over Brook House Immigration Removal Centre raised by a BBC Panorama programme and the Commission’s 2016 submission to the UN Committee Against Torture.
In a 2017 response to a Ministry of Justice consultation on proposals for an expedited appeals process for detained immigration and asylum appellants, the Commission advocated the use of community-based alternatives to detention:
- We agree with the views of the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration that there needs to be a presumption towards community-based resolutions rather than detention, and that the UK Government should learn from international best practice where alternatives to detention have been found to be an effective and more holistic solution (para.38).
In its formal submission to the UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Commission recommended that the Government:
- ensure that revisions to rule 35 arising from the forthcoming Detention Centre Rules review result in sufficient safeguards for women who are victims of serious physical, psychological or sexual violence to ensure they are not detained
- ensure that immigration detention is used as a last resort, commit to setting a maximum limit of 28 days on the length of time an individual can be held and increase efforts to work towards community-based resolutions for women as an alternative to detention, and
- introduce independent processes for the identification of women with protected characteristics, or who otherwise face a particular risk of harm in detention, both when the decision to detain is made and once individuals have entered the detention estate.