As Brexit Looms, the UK Consolidates Indefinite Detention of Migrants
Ryan Service 8 July 2020

Last Tuesday June 30th UK members of parliament failed to back an amendment to the Immigration and Social Security Co-ordination Bill seeking a 28-day detention limit for immigration purposes. The vote resulted in a split broadly along party lines (252 against 332) with members of the Labour Party, Liberal Democrats, Scottish National Party, Green Party, and Plaid Cymru supporting David Davis’ proposed new clause. Even with four Conservative ministers opposing their own party in government, the amendment did not gain enough backing.

As a result, the UK remains the only European nation without a time limit for immigration detention. An immigrant or refugee will continue to be held in detention while their status is decided and their case is reviewed. Sometimes this is a process upon immediate arrival or through subsequent discovery. Families are kept together where possible in detention. Controversy surrounds the fact that individuals are held without a time limit, which raises questions about the purpose of detention in practice.

Internally, the UK parliament has recently scrutinised detention practice. For instance, the House of Commons and House of Lords’ Joint Committee report Immigration detention released in February 2019 made the startling criticism that while “there are strict safeguards to ensure independent decision making and fair processes for detention in the criminal justice system, there are far fewer protections for people caught up in the immigration system”[i]. Simply put, once sentenced an individual within the criminal justice system knows the length of their sentence whereas a detainee under immigration law never knows the length of their detainment. Such uncertainty impacts upon the health and well-being of detainees, denied the surety and management of time.

One month later the House of Commons Home Affairs Committee published its report using the same title to expose “a weak administrative process and a serious lack of judicial oversight of the decision to detain” before evidencing that “more than half of the people being detained…were simply released again”, indicating that detention is not always “being used appropriately”[ii].

Evidently, immigration is a source of contention in the UK and it reveals an already fraught partnership with the EU. Not only is the UK the only EU member state (until withdrawal is complete) without a legal time limit, but even as a full member of the EU the nation opted out of the Return Directive (2008) that stipulates a maximum detention of 18 months. The same Return Directive posits that the “use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued”[iii]. Denying such protection in 2008 and now without a legally fixed time limit leaving the EU, the incertitude is prolonged.

 

Escaping the European framework

How is detention treated in the EU and in the the European Convention on Human Rights (ECHR) in particular? A point of clarity is offered by the Council of Europe in their guide to ECHR Article 5 in which provision is made for “States to control the liberty of aliens in an immigration context”. The guidance reminds member states that while:

“the first limb of that provision permits the detention of an asylum seeker or other immigrant prior to the State’s grant of authorisation to enter, such detention must be compatible with the overall purpose of Article 5, which is to safeguard the right to liberty and ensure that no-one should be dispossessed of his or her liberty in an arbitrary fashion”[iv].

Given the ambiguity of the term “arbitrary” there is vast difference on the ground. Practice varies “in terms of who is detained, for how long, at what point, with what legal safeguards, and for which official purposes”[v]. For example, Mainwaring and Silverman find that “the French detention time limit is 32 days, the German limit is six months with a potential extension to 18 months in ‘exceptional’ circumstances”[vi]. Behind the variation are people with their hopes and aspirations clouded by an indecision that is structurally permitted.

As a legal safeguard, Article 5 of the ECHR was taken into the UK’s Human Rights Act (1998), building upon the Immigration Act (1971) that gives the government power to detain in order to “examine a person’s immigration status”[vii]. Noticeably, time limits were not introduced in either law. Protections were sought extraneously through the Hardial Singh principles (1983) allowing the deportee to “be detained for a period that is reasonable in all the circumstances”[viii]. As with ill-defined “good faith”, the discernment of what is “reasonable” is haphazard and leaves vulnerable people legally unprotected.

While debates around legal directives continue, the impact upon the mental health of detainees exacerbates and the UK government has been found several times to have “breached Article 3 of ECHR, the prohibition on torture and inhuman and degrading treatment”[ix]. Another worrying trend is that even as the number of people in detention has fallen since 2015, the length of detention is still high. In 2019 there were 24,443 people detained and among that population 28% were held for longer than 29 days and 3% of that figure were “detained for more than 6 months”[x].

 

Why detain?

Behind indefinite detention is poor administration where decisions to detain are made by Home Office staff members rather than a court of law. Detention, in this context, has become a place of holding while information is gathered. Individuals are left in a state of limbo: not knowing their status, their legal rights, the length of their detention, the purpose of their detention, and not necessarily knowing the spoken language.

Detention becomes normative where there is no substantial “pre-detention screening” and “no face to face contact between immigration decision-makers and the detainee”[xi]. These gaps increase indefinite, and arguably unnecessary, detention. Without initial substantive information gathering alternatives to detention are rarely considered and the arbitrary nature of a decision is not immediately assessed. A judicial review is only required after a period of four months. Furthermore, detainees find themselves without immediate legal advice that is publicly funded and their detention is not reviewed with the urgency of the criminal justice system where there is a 36-hour limit.

 

A grotesque spectacle

While the debate should focus on the human stories of those caught up in poor administrative procedures and weakly worded laws, it is important to notice an emerging narrative of detention as spectacle. Detention is presented as necessary in a crisis situation where immigration flow creates an administrative backlog. Within this narrative there is a cruel interplay between visibility and hiddenness where “[i]mmigrants and asylum seekers are ‘hidden in plain sight’”, in that detention centres “may become momentarily visible, in the media for example, during moments of protest or other disruption”[xii].

Detention is effective as a deterrent as far as it operates and is mediated as a spectacle “directed towards a domestic as well as international audience”, projecting “an image of the state’s monopoly of power over its frontiers and non-citizen populations”[xiii]. Perhaps the continued absence of a time limit is another way in which detention is used as a deterrent.

Reviewing laws in preparation for the UK’s withdrawal from the EU offered the ideal opportunity, along with the legal necessity, to consider time limitation in immigration detention. Now that this window has passed and given that there are no EU directives to which the UK might opt in or out of in the immediate future, the plea for change must be broader than a mere add on to Brexit legislation.

 

References

[i] Joint Committee on Human Rights, Immigration Detention, 2017-19, HC 1484, HL Paper 278, 7 February 2019, p. 3.

[ii] Immigration Detention, 2017-19, HC 913, 21 March 2019, 29.

[iii] Directive 2008/115/EC of the European Parliament and of the Council, 16 December 2008, clause 16.

[iv] Council of Europe/European Court of Human Rights, Guide on Article 5 of the Convention: Right to Liberty and Security, 2018, paragraph 124.

[v] C. Mainwaring and S. J. Silverman, “Detention-as-Spectacle”, in International Political Sociology, 11(1), 2017, p. 25.

[vi] Ibid, 25.

[vii] Joint Committee HR, 2019, 6.

[viii] Joint Committee HR, 2019, 7.

[ix] A. Lindley, Injustice in Immigration Detention, 2017, School of Oriental and African Studies, University of London: Bar Council of England and Wales, 15.

[x] Home Office National Statistics, “How many people are detained or returned?”, 27 February 2020, (https://www.gov.uk/government/publications/immigration-statistics-year-ending-december-2019/how-many-people-are-detained-or-returned#:~:text=As%20at%2031%20December%202019,as%20at%2030%20September%202017.)

[xi] Home Affairs Committee, 2019, 3.

[xii] Mainwaring and Silverman, 35.

[xiii] Ibid, 22.

 

Ryan Service is a Postgraduate research student at the Pontifical Gregorian University, Rome, in the Faculty of Social Sciences. He is also a priest of the Archdiocese of Birmingham, UK.

 

Photo: DANIEL LEAL-OLIVAS / AFP


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