As we wait with bated breath for the results of Stephen Shaw’s second review of immigration detention, it’s worth taking some time to revisit his first.
A former Prisons and Probation Ombudsman, Shaw was commissioned by Theresa May in her former incarnation as Home Secretary to conduct a review of the welfare of vulnerable people in immigration detention. Taking his original terms of reference with a generous pinch of salt, Shaw eventually published an astoundingly long report with 64 recommendations covering everything from the detention of transsexual people to access to Skype.
“I have seen nothing in my terms of reference to prevent me discussing the length of detention, the effectiveness of detention reviews, and the use of alternatives to detention, as aspects of welfare and vulnerability, and I have done so.”
Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons
Many of Shaw’s recommendations focused on helping the Government make sense of its unwieldy, ineffective detention estate, which is failing to achieve even the Home Office’s stated aims. In order to achieve this, he advised that the number of people detained be reduced “boldly and without delay”.
“A strategic decision therefore needs to be made about the size and location of the IRC estate over the next decade and longer … is the Home Office making the most efficient use of resources to achieve its objective of maximising voluntary and enforced removals?”
Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons
Rather than review all of Shaw’s recommendations in detail, let’s take a look at them as they relate to the changes we believe are the priority.
- Introducing a time limit on immigration detention
While he refrained from explicitly recommending a time limit, Shaw included it as one possible means of achieving a more streamlined, more effective and less inhumane detention estate.
“I observe that there are many ways (with or without a formal time limit) that the current system of detention reviews could be strengthened. For example, bail hearings could be automatic at the 28 day stage, or after three or four months.”
Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons
- Ending the detention of vulnerable people
Shaw added new categories to the list of ‘vulnerable’ people who should not be detained, including survivors of sexual violence, people with PTSD or learning difficulties, and transsexual people. However, he also recommended that the Home Office adopt a dynamic rather than category-based approach to assessing vulnerability, pointing out that “vulnerability is intrinsic to the very fact of detention, and an individual’s degree of vulnerability is not constant but changes as circumstances change”.
- Improving judicial oversight of detention
Shaw found many reasons to be critical of the Home Office’s internal detention review and Rule 35 processes. He recommended the introduction of an “independent element” to ensure effective oversight of decisions to detain, particularly where someone lacks the capacity or resources to apply for bail themselves.
“Immigration detention has increased, is increasing, and – whether by better screening, more effective reviews, or formal time limit – it ought to be reduced.”
Stephen Shaw, Review into the Welfare in Detention of Vulnerable Persons
- Implementing alternatives to detention
Alongside his efforts to encourage the Home Office to detain fewer people for less time, Shaw also argued that it should “demonstrate much greater energy in its consideration of alternatives to detention”, including community-based support.
In response to Shaw’s first review, James Brokenshire, Minister for Immigration at the time, promised to reduce the size of the detention estate and to start using detention centres as immigration removal centres once again. By only detaining people prior to removal, Brokenshire argued, we would see an improvement in their welfare without any need for “arbitrary time limits”.
And what has happened since then? The size of the detention estate has indeed been reduced. Since Shaw commenced his original review, Dover and The Verne IRCs have closed and the number of people in detention has decreased. 2,400 people were detained at the end of March 2018, down 18% from 12 months earlier. New guidance on Adults at Risk in Immigration Detention has been implemented. Automatic bail hearings have been introduced for people who meet certain narrow criteria.
However, each of these changes comes with a caveat. While the overall number of people detained has decreased, the numbers held under immigration powers in prisons has not. Without a time limit, many continue to be held for months and years at a time. As Mishka, a member of the Freed Voices writes, the indefinite nature of detention “frames every misery in detention; from the culture of abuse and disrespect for protective safeguards among detention centre staff to the crisis of harm”.
The Home Office’s Adults at Risk policy has been plagued by litigation and complaints, and has failed to address the issues identified by Shaw in his criticisms of the Rule 35 safeguards designed to prevent the detention of vulnerable people. And the new automatic bail hearings are limited to those with no previous criminal convictions and undermined by the restrictions on bail accommodation introduced at the same time.
Just as well Shaw is conducting a second review to pick up on these shortcomings, right? Yes and no. While it’s important that Shaw is able to assess the government’s progress towards a less callous and indiscriminate use of immigration detention, what’s even more important is that there are measures put in place to hold the Government to account in the long-term. As of now, for example, the Home Office is continuing to insist that it is not possible to measure its progress on detaining fewer vulnerable people because there is no way of assessing how many vulnerable people are detained. Decisions must also be made about whose responsibility it is – other than Shaw’s – to monitor any progress.
In the Kafkaesque world of detention policy, we need unambiguous, measurable commitments to ending indefinite detention and finding humane alternatives to detention more than we need an endless succession of Shaw reviews.
Susannah Willcox @susywillcox
