12 May 2016
The Immigration Act, scheduled to receive Royal Assent in the coming days, will introduce automatic judicial oversight on the UK’s use of immigration detention for the first time and a 72-hour time limit on the detention of pregnant women.
During the passage of the Immigration Bill which began in October last year, the Government listened to growing disquiet over immigration detention, raised by Parliamentarians and the general public.
Two detention-related amendments (judicial oversight and the detention of pregnant women) became the focus of the ping-pong in the very final stage of the Bill, which concluded on 10th May 2016 at the House of Lords. In the end, the Government’s amendments were passed. You can read the transcript here.
These two detention policy changes are designed to offer increased safeguards against the impact of indefinite detention, although their mechanisms and effectiveness are unknown at the moment.
The judicial oversight amendment (Motion 84C of this document) creates a new legal obligation for the Home Office to initiate bail hearings for individuals who have been detained longer than four months and who have not applied for bail during that period.
In tabling this amendment, the Government made it clear that they recognise the need for increased judicial oversight. In the face of strong support for Lord Ramsbotham’s Amendment 84, the Government also offered a limited concession by reducing the length of period before automatic bail hearings take place from six months of detention to four months of detention.
While the Act will introduce automatic judicial oversight of immigration detention for the first time in the UK, it does not sufficiently address the growing cross-party concern at the overuse of detention. The Parliamentary Inquiry of the APPGs on Refugees and Migration and the Shaw Review both called for a strengthening of legal safeguards against excessive lengths of detention. Yet the safeguards offered are limited: migrants will still be detained for up to four months without any judicial oversight, and some groups are excluded altogether from automatic judicial oversight. Particularly disturbing is an exclusion of ex-offenders who, after having finished their criminal sentences, find themselves incarcerated, with no time limit, under immigration detention powers.
The detention of pregnant women amendment will set a time limit of 72 hours over the length of the time pregnant women can be detained, extendable up to a week. The Government recognises the detrimental impact detention has on pregnant women and appears to send a signal that indefinite detention is not a necessary part of immigration control.
On the surface, this new policy for pregnant women is an extension of a safeguarding time limit currently available for families with children who are facing return to their country of origin. However, it is unclear how this is going to be achieved without a mechanism equivalent to the Independent Family Returns Panel which has been playing a vital part in restricting the number of families with children who are detained at Cedar Pre Departure Accommodation.
Eiri Ohtani of the Detention Forum cautiously welcomed these policy shifts;
“We appreciate the Government’s willingness to engage with the detention reform agenda we and others have been advocating for many years. They have given careful considerations to our proposals, agreed to take small steps towards change and promised to have their progress reviewed by Stephen Shaw at the end of 2017. We are particularly humbled by the commitment and passion shown by sympathetic MPs and peers, who fought tooth and nail to secure as much protection as possible for people in detention in this otherwise devastatingly hostile Bill. We now need to examine the possible impact of these changes and offer our analysis to the Government. Without a clear time limit on detention, however, a radical reform of immigration detention remains elusive. These changes are just the beginning and certainly not the end.”
Ali McGinley of the Association of Visitors to Immigration Detainees (AVID) said;
“That detention became so central to the immigration bill, and that we now have these two detention amendments, is no small feat. We are grateful to the MPs and Peers who supported our calls for detention reform, and in particular acknowledge the importance of the first automatic judicial oversight mechanism in providing scrutiny that did not exist before. However there is still a long way to go if we are to see the substantive overhaul that is so desperately needed, and which was recommended by the parliamentary inquiry last year. While these policy changes give us a glimmer of hope, there is still much to do. What has become clear during the debates on this bill, however, is that the energy and commitment towards further reform is not waning.”
Abdal, Freed Voices said;
“It’s great that the Government has recognised that the indefinite detention of pregnant women is both damaging and unecessary. But this same logic applies to everyone in detention. I was detained for over five years. Was it damaging? I lost my career, my kids, my mental health, everything. Was it necessary? I’m here, in the community, giving this quote, so no, I can’t see how you could argue that it was. It doesn’t matter who you are – man, woman; mother, father; black, white; young, old – indefinite detention is always damaging and always unecessary.”
John, Freed Voices said;
“Automatic bail hearings after four months are like admitting you have a serious problem but saying you’re not really going to tackle it. We need judicial oversight from Day One, not Day 120.”