The Immigration Bill 2015 and Immigration Detention
Experts Give Evidence to MPs in Public Bill Committee on 22 October 2015 
Peter Grady, legal officer at UNHCR, commenced the Public Bill Committee’s discussion of immigration detention provisions of the Immigration Bill on the 22nd October, by saying, “If I had my one wish…it would be for the introduction of a time limit on detention… to [help] ensure compliance with what UNHCR views as being international standards relating to detention”. It is a measure of international concern at the UK’s immigration detention system that Peter Grady should choose this of all Immigration Bill issues to wish for change. However, as subsequent expert evidence to the Committee demonstrated, far from improving the UK system of Immigration Detention, the Immigration Bill threatens to make a deplorable situation more grievous still.
Peter Grady’s opening statement provided a platform for Jerome Phelps of Detention Action to give detailed evidence to the Public Bill Committee. Asked by Labour Shadow Home Office Minister, Sarah Champion, if provisions of the Immigration Bill would fuel more unlawful detention litigation, Jerome Phelps was unequivocal: “Absolutely”. Many of his concerns centre around the Immigration Bill’s proposals to make, “exceptional”, the current Home Office practice of provisionally offering accommodation to people in detention so they can apply for Bail before the independent First Tier Tribunal. As Jerome Phelps explained to the Committee:
“The ability of the courts to scrutinise decisions by the Home Office to deprive someone of their liberty is entirely dependent on that person’s ability to apply for bail. That ability is dependent on having an address. It is important to note that that is not out of any concern by the tribunal to reduce homelessness; the primary reason why people in detention have to provide an address to apply for bail are solid immigration control priorities of the Home Office, in that if somebody cannot provide an address, it is very difficult for them to reassure the courts or the Home Office that they will keep in touch and be detainable and removable if it becomes possible.”
Home Office Ministers, including Theresa May, have said they want less detention rather than more detention, and closure of Dover IRC has been presented in that light. On another day of Committee hearings, Home Office Minister, James Brokenshire maintained: “Depriving someone of their liberty is a serious thing…there should be the presumption of liberty…Our approach to immigration enforcement seeks to promote and encourage more facilitated or encouraged removals, rather than simply to use detention as a means of achieving the outcome”.
And yet as Jerome Phelps cogently argued to the Committee on the 22nd October, not offering accommodation to facilitate bail applications will increase frustration, alienation and probably non-compliance within the detention estate; it will result in more detention at greater cost to the tax-payer, as well as more cases in the High Court for unlawful detention, at a time when the High Court is reeling under pressure and the Home Office is paying out around £3m a year already in unlawful detention claims. In addition, if people are released without an address, the Home Office faces extra spending on trying to find people who can no longer be traced.
In evidence to the Committee Jerome Phelps highlighted that in the case of detention policy – the Government’s stated aim of effective immigration control goes hand in hand with respect for the rights of people in detention and trust in the system – where detention is time-limited and genuinely used as a last resort with proper safeguards, people are more likely to engage with the system of return.
Other expert witnesses before the Committee on the 22nd October addressed the provisions in the Immigration Bill which would allow the Home Office to re-detain someone after they have been granted bail by a Judge of the independent First Tier Tribunal, or to vary or impose conditions on Bail after the Judge has considered the need for conditions.
Adrian Berry, Chair of ILPA (Immigration Law Practitioners’’ Association), characterised these provisions to the Committee as, “a power grab, if you like, on the part of the Home Office against independent judicial scrutiny”. He continued: “Without independent regular judicial oversight, you are going to have more unlawful detention cases and more compensation being paid out. As people have said, nobody wants that. It is not a good situation.” He also wondered how upending independent judicial decisions will affect confidence in the system.
Colin Yeo, a highly respected barrister at top-ranked chambers Garden Court and a frequent blog contributor to Freemovement website, was equally critical in front of the Committee: “The Bill will have the effect of reducing scrutiny rather than increasing it. It turns independent hearings into, virtually, a charade.”
As was pointed out on another day in Committee, Lord Justice Neuberger has stated, “A statutory provision which entitles a member of the executive to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom, it would cut across two constitutional principles which are also fundamental components of the rule of law.”
Jerome Phelps, stressed to the Committee on the 22nd October, that having a system of safeguards – bail being a primary safeguard – is essential in trying to reduce the potential for abuse within the UK detention system, which is already confronted with a series of findings by UK courts of breaches of Article 3 ECHR (an absolute right prohibiting torture, and inhuman or degrading treatment or punishment and a very high threshold in practice). Article 3 breaches have been found in six cases in the last four years in relation to desperately vulnerable mentally ill people who had complete psychiatric collapse as a result of immigration detention here in the UK.
Set against a back-drop of wider evidence to the Public Bill Committee on the Immigration Bill, from experts concerned with poor decision making by the Home Office (around 40% of immigration cases are won on appeal, and around 60% of asylum support decisions), one is left wondering what further suffering will result from the proposals in the Immigration Bill to subvert independent scrutiny of the decision to detain and undermine a detained person’s capacity to apply for Bail.
Colin Yeo expressed matters well: “what I do see, as a lawyer dealing with the migrants and their families who are affected by the laws passed by Parliament, is that those laws have human consequences. We meet broken families: children who have lost their parents, parents who have lost their children, spouses who have been separated. They are people whose lives have been ruined or significantly impaired by bad Home Office decisions”. He also pointed out that many of those family members are themselves British Citizens, something often overlooked.
Examples of poor decision making by Home Office officials were abundant in evidence to the Committee, for instance where couples are interviewed for hours at a time, sometimes 300 questions each, and not knowing the answer to questions such as the colour of the wife’s toenails or the skin cream she uses leads to a decision that it is a sham marriage and there is no genuine relationship and detention and removal follows. Evidence of the way in which innocent people can inadvertently fall foul of immigration enforcement was also plentiful – plenty of examples of Home Office evidential requirements not obvious on the face of an application and so complicated as to be almost impossible to fulfil at times. Manjit Gill QC giving evidence to the Committee said the “quality of initial decision-making is unspeakable” and drew particular attention to decisions involving children, saying: “You may have come across decisions of the upper tribunal, and particularly of the president, Mr Justice McCloskey. In a case called “J.O.” – I can send you copies if need be – he severely criticised how the interests of children are dealt with in decision letters. They seem simply to pay lip service to the best interest duty. He basically tore the decision-making process to pieces in his decision”.
Every such instance of poor Home Office decision making or inadvertent error will very possibly lead on to detention and untold misery for the person concerned, family and friends. All the more need for a time limit of 28 days, automatic independent judicial oversight of detention and proper protection for vulnerable people.
If Mr Brokenshire and the Government are sincere about their stated direction of travel, of wanting to use immigration detention less, with better effect and greater cost-efficiency. Let’s hope they will be open to amendments aimed at furthering the Detention Inquiry recommendations. Let’s hope they will steer away from the darker scenario contemplated by many in evidence and epitomised in the change of terminology effected by the Immigration Bill, summarised by Gavin Newlands (SNP), MP for Paisley and Renfrewshire North:
“The Bill removes the concept of temporary admission and creates a situation whereby anyone without leave who is waiting for a decision on their application will be on immigration bail. The Immigration Law Practitioners’ Association and others make the important point that the terminology of ‘immigration bail’ suggests that detention is the norm and liberty an aberration and also suggest that persons seeking asylum are a form of criminal. Liberty also makes the point that a large number of asylum seekers, previously granted temporary admission will now be seen exclusively through a prism of detention and bail, casting aspersions of illegitimacy and criminality”.
We will bring you news of developments as the Immigration Bill enters Report Stage and Third Reading in the House of Commons and then passes to the House of Lords. Please keep up the pressure for our key asks.
 October 22nd was a chance for an impressive array of experts in migration and asylum law to give evidence to MPs on the implications of the Immigration Bill for immigration detention. The occasion was a public evidence session of the Immigration Bill Public Bill Committee in the House of Commons which has been scrutinising the Immigration Bill following second reading in the Commons. Public Bill Committee stage allows more detailed line by line consideration of a Bill. In providing testimony on October 22nd the experts made an invaluable contribution to the attempt to change the course of the Immigration Bill as it moves on to Report Stage and Third Reading in the Commons before passing on to the House of Lords.
By the Detention Forum team