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Earlier this month, the Joint Committee on Human Rights (JCHR) published its long-awaited report on immigration detention. This report marks the culmination of an inquiry that began in July 2018 and received 64 written submissions, as well as oral evidence from experts-by-experience, detention sector organisations, independent monitoring bodies, legal practitioners, and the Immigration Minister.

This followed an earlier inquiry into the unlawful detention of members of the Windrush generation, in which the Committee found that administrative decisions to detain ‘were not justified and proportionate and did not protect against unnecessary and unlawful detention’. Home Office caseworkers ‘had ignored evidence and pieces of information in the case files and there was an inadequate oversight of decisions’.

In an initial response to the Committee’s report, Detention Forum Project Director Eiri Ohtani called on the Government to heed the Committee’s calls for a time limit ‘to end the trauma of indefinite detention’.

“While the Committee’s input is welcome and we certainly hope that this Immigration Bill will be an opportunity for a necessary legislative change to happen, we are frustrated that similar recommendations have been made time and time again by many over the years … We invite the Home Office to engage seriously and openly with all the five proposals made by the Committee. Just like the Hostile Environment and the Windrush scandal, mass, routine, indefinite immigration detention is tearing our society apart. We can’t afford to delay changing this deeply flawed system.”

Other organisations including JRS UK, René Cassin, Mind and Freedom from Torture have also responded to the report.

The Committee’s starting point is that ‘Deprivation of liberty is a serious interference with an individual’s human rights’. For this reason, if it is to exist at all, it should come with equally serious safeguards. While recognising that the Home Office has made tweaks to the system over the past few years, including reducing the number of people entering detention, the report goes on to identify several areas in which the current system is falling well short of this expectation.

  1. Independent decision-making. The Committee points out that, despite the recent introduction of Home Office gatekeepers and case-progression panels, decisions to detain are still ‘made within the Home Office, the Department which progresses removals and deportation’. It recommends, instead, that planned decisions to detain should be made by an independent authority, and all decisions to prolong detention beyond 72 hours should be made by a judge.

“Not only is there a principled case for independent authorisation to detain in cases of planned detentions; such independent decisions may well be more robust than those taken entirely within the Department. The current lack of rigour in detention decisions is evidenced by the amounts spent on compensation for wrongful detentions and the series of mistakes accepted by the Home Office in detention cases.”

  1. A time limit on detention.The Committee calls for a 28 day time limit on immigration detention, with a possible extension of 28 days in ‘exceptional circumstances’, to be decided by a judge.

“The UK is the only country in Europe that does not impose time limits on immigration detention. Without such a time limit, there is a reduced incentive for officials to progress cases as quickly as possible, so that individuals can have their status resolved swiftly, for example by being removed or having their status regularised.”

  1. Access to legal advice. Recognising the complexity of current immigration law, the Committee calls for timely and effective legal aid representation to cover allaspects of a person’s immigration case, alongside decisions to detain. They also highlight the importance of providing access to legal advice for people detained in prisons, both during and after their custodial sentence.

“There is legal aid for immigration detainees to challenge detention, but we found that there are problems with the availability and timeliness of legal advice in detention. Immigration detainees should have better and more consistent access to legal advice to challenge their detention. Moreover, the substantive immigration cases themselves are often not within scope of legal aid. This may cause problems because an individual’s detention is inherently linked to their underlying immigration issue. It is also inefficient and may well be costly, as matters repeatedly return to court (creating unnecessary costs for the taxpayer), and decisions about an individual’s immigration status are delayed.”

  1. Vulnerable individuals.The Committee highlights the lack of adequate safeguards to protect people vulnerable to harm in detention, including people who have obvious indicators of trafficking or who lack mental capacity.

“The Adults at Risk policy does not give adequate protection to individuals at risk of harm in detention either by way of policy or of practice.”

  1. Detention conditions. The Committee calls for more relaxed conditions and more effective safeguards against ill-treatment in detention.

“The Home Office should give serious consideration to improving the oversight and assurance mechanisms in Immigration Removal Centres and the wider immigration detention estate to ensure that any ill-treatment or abuse is found out immediately; action is taken to correct it; and steps taken against those responsible to ensure lessons are learned and effective prevention mechanisms are put in place. More needs to be done to make the detention estate less prison-like and to create as open a regime as feasible.”

On the basis of these recommendations, the Committee has set out a new roadmap for detention decision-making, with independent checks built in at the initial point of detention, at 72 hours after being detained, and again at 28 days.

The Committee measures Home Office decision-making practice against its own published standards, and finds that it falls far short. In the case of decisions to detain, for example, Chapter 55 of the Enforcement Instructions and Guidance recognise that ‘a person who has an appeal pending or representations outstanding might have relatively more incentive to comply with any restrictions imposed, if released, than one who does not and is imminently removable’ – and yet, according to immigration practitioners, people continue to be detained ‘where appeals are ongoing, judicial reviews are live, travel documents have not been obtained and travel arrangements have not been made’.

Similarly, the Home Office has committed itself to pursuing alternatives to detention – and yet there is scarce evidence of this when ‘tick-box’ decisions to detain are made. According to evidence from Detention Action’s Bella Sankey, ‘People are detained to make it easier for the Home Office to keep track of them and know where they are, but very little realistic thought is given to alternatives in those cases.’

Crucially, the Committee considers the Home Office’s claim that it does not detain people indefinitely – that it only detains people for a finite but unspecified time during which there is a reasonable prospect of their removal – and politely disagrees. Instead, it prefaces its section on a time limit with the experience of people who know first-hand the ‘mental torture’ of being detained indefinitely.

“Detention should be used only where it is necessary and proportionate. Indefinite detention causes distress and anxiety and can trigger mental illness and exacerbate mental health conditions where they already exist. Moreover, the lack of a time limit on immigration detention reduces the incentive for the Home Office to progress cases promptly which would reduce both the impact on detainees, and detention costs. We recommend that where all other alternatives have been explored and considered unsuitable and detention is considered necessary, the maximum cumulative period for detention should be 28 days.”

Many of the Committee’s recommendations overlap with the Detention Forum’s key asks, including automatic judicial oversight, an end to the detention of people vulnerable to harm, and a 28 day time limit on detention. While the Committee missed an opportunity to make a standalone recommendation regarding community-based alternatives to detention, it did recognise the importance of alternatives in ensuring that detention is only used as a last resort.

“We consider that alternatives to detention should be considered in all cases and a record kept. Detention should only be used where necessary and proportionate and where alternatives are not available or would not meet the legitimate aims pursued. We welcome the Home Secretary’s commitment to do more to explore alternatives to detention and the launch of the pilot to manage vulnerable women in the community who would otherwise be detained at Yarl’s Wood. We look forward to the development of alternatives to detention programmes for other categories of detainees.”

Like countless others before them (for a sample, visit our reports page), the Committee recommends overhauling existing detention policy and practice in the direction of a system that is ‘fair, humane, decent and quick’. However, many of these recommendations, while admirable, have been made time and time again. The time has come now for action.