By Francisca Stewart. Francisca works for Article 1, a member organisation of the Detention Forum.

Published at OpenDemocracy, as part of a series of articles on unlocking detention.

Too often for foreign national prisoners in Britain, the completion of a prison sentence is followed by a period of limbo behind a new set of bars while the state works out what to do next. Labelled ‘undeserving’, they are largely invisible.

Many people agree that those who commit serious crimes should be imprisoned. But what if you committed a crime and served your sentence, yet instead of being released you were held indefinitely without any idea when you would be freed? On top of this, imagine you were held in a foreign country, discriminated against because of your ethnicity, and treated like a criminal even after you had completed your prison term? It seems appropriate to ask why this nightmare continues to be a reality for many foreign nationals in the UK.

Mr Mohammed, a young torture survivor who has spent extended periods of time in both Immigration Removal Centres (IRCs) and UK prisons, knows such treatment all too well. Although he has finally been released, winning a court case regarding his unlawful detention, the effects of discrimination and isolation from the outside world linger. He speaks candidly of his time behind bars, saying, ‘You feel forgotten and this is scarring for life.’ When interviewed about his experience, he spoke about the violence in prison and how he got used to dealing with bullying on a daily basis, from both other inmates and prison guards: ‘In prison, if you’re a foreigner, you’re automatically subjected to discrimination.’

Limited access to legal aid for the ‘undeserving’

It is especially hard for foreign nationals in UK prisons to access justice. A 2013 survey by BiD (Bail for Immigration Detainees) and ICAR (Information Centre about Asylum and Refugees) across the UK immigration detention system found that just 26% of foreign detainees who had been in prison were provided with any form of independent immigration advice during their time there, including guidance on their possible deportation. BiD also found through its legal casework that foreign prisoners face greater disadvantages than the average prisoner because they are considered of lower priority by the prison authorities. Quite simply, the penal system was not created with them in mind. Article 1, (named after Article 1 of the Universal Declaration of Human Rights – all human beings are born free and equal in dignity and rights), is a charity working with Sudanese asylum seekers in the UK. It their experience lawyers can be reluctant to take on difficult cases in which defendants do not ‘evoke sympathy’ or are labelled ‘undeserving’.

Yet we know that every individual has the right to have rights.

Legal counsel is especially essential where an individual’s freedom has been deprived due to bureaucratic process. Too often for foreign national prisoners, the completion of their prison sentence is followed by a period of limbo behind a new set of bars while the state works out what to do next. Efficient and active legal representation can save the state money by handling cases more quickly and reducing the amount of time in detention. The end result costs the tax-payers dearly, resulting as it does in lengthy appeals to higher authorities.

Invisible behind bars

The population of foreign nationals incarcerated in the UK is largely invisible. According to the Ministry of Justice, in 2012 there were 10,861 foreign nationals in UK prisons: 13% of the total prison population. The number of foreign nationals held in prison under immigration powers following the end of their prison sentence is not made public by the Home Office. However, in answer to a freedom of information request, the UK Border Agency confirmed that the number of detainees housed in prisons under Immigration Act powers was between 450 and 600 during 2011 and the first month of 2012. This makes up between 15 and 20% of the total prison population of foreign nationals.

Access to justice for these forgotten individuals remains serendipitous. It was only through the efforts of Article 1 that Mr Mohammed obtained legal representation. This followed two years without legal representation, for which he was in legal limbo. He was allowed out of his cell for an hour a day, and in that time he had to complete everything from showering to waiting in long queues to make phone calls (with little or no money). Consequently getting the legal aid to which he was entitled was a challenge. With Article 1’s help, he subsequently won his case for unlawful detention. Isobel Crowther, Head of Asylum and Research at Article 1, says ‘too many foreign nationals find themselves in this vulnerable position and we worry we are not able to reach all that we need to. It shouldn’t be by chance that they are able to access legal services, but a guaranteed part of the prison system.’

Lack of understanding

The penal system has little understanding of immigration detainees because they are organised to handle citizen criminal offenders. Mr Ibrahim, a young man who fled the genocide in Darfur, Sudan, spent two and a half years in prison after his sentence had finished, before being moved to an immigration detention centre. Before Article 1 saw him he had not had a visitor for four years. During his time in prison he claimed he was constantly subjected to racism and bullying by inmates and officers. He saved his cell mate from hanging himself three times. He had no legal representation for nearly three years. Now, although he has been transferred to an IRC, the pain in his voice is unmistakable. He explains that although he is happy to be out of prison, ‘I came to the United Kingdom only to feel like a slave.’

Immigration is a controversial topic in the United Kingdom, especially in the run up to the general election, and because of this it is often under scrutiny. In such an atmosphere, public sympathy for foreign national prisoners is scarce. In a climate in which hostility is frequently expressed towards law-abiding refugees and asylum seekers – those who are trying to escape from the forms of persecution one might expect to be deplored by traditional British values – foreign national offenders have little chance of securing popular support for their rights.

Yet many of the foreign nationals Article 1 works with are in the UK because of their dissident activity as democracy activists, challenging their own governments to abide by the rights most British people take for granted and of which they are proud. There are many, complex reasons for which they may fall foul of the law, including the challenges posed by the asylum system itself, in while they may find themselves trapped for years on end with no right to work and limited access to state support. These individuals have faced fear and abuse at home, and yet, ironically the very system they admired from afar, the British system, is now marginalising them in their hour of greatest need. Their shabby treatment reveals the ugly side of politics in the UK, where those hungry for votes distort the truth to manipulate an ignorant public.

It is thought the Prime Minister, David Cameron, will use his annual Conservative Party conference speech later this month to distance his government even further from the European institutions (the Bill of Rights and the European Court of Human Rights) that are the last resort for foreign national prisoners.

Making change: ‘You can never, ever forget’

Where there are organisations fighting to make change it is not happening fast enough, especially for those incarcerated beyond their lawful sentences, or for their spouses, children, parents, and friends, waiting on the outside. The Detention Forum and its members have done good work around ending indefinite detention, but there is little activity on the protection of foreign nationals in prisons.

So what conclusion from Mr Mohammed? ‘Detention, perhaps, is mentally harder than the physical torture. Maybe people will disagree with me, but I suffered both and I prefer physical torture than mental torture. With the detention, you don’t know when you’re going to get out, you don’t know anything, and you only receive every now again a paper from the Home Office just telling you that you will be continued to be detained. I think this itself is like torture. I think it’s worse than physical torture because it will mentally scar you for life. You can never, ever forget it.’