Written evidence submitted by the Bar Council (IDD0022)
1. This is the response of the General Council of the Bar of England and Wales (the Bar Council) to the Home Affairs Committee’s call for evidence on immigration detention[1].
2. The Bar Council is the governing body and the Approved Regulator for all barristers in England and Wales. It represents over 16,000 barristers in self‐employed and employed practice.
Executive Summary
3. Detainees are not held in detention as punishment, but for administrative purposes.
4. Depriving individuals of their liberty – particularly for administrative convenience – should not be undertaken lightly or without adequate oversight or access to a properly functioning judicial process, through which they are supported with access to legal advice and representation. It is the Bar Council’s view – a view which is shared by other organisations and, according to research, is supported by professional lawyers and judges who work with immigration detainees – that too many people are held in detention and for too long. At the end of June 2017, 56% of people in detention centres had been held for more than 28 days[2]. This cost the Government £125m in the year ending 31 March 2016 which works out at around £34,000 per detainee per year. Additionally the Government paid nearly £14m in compensation claims between 2012-15 to individuals who had been unlawfully detained[3].
5. Immigrants can be detained for six months, a year, or longer, due to a lack of access to legal aid, poor quality decision-making, and Home Office processes that are not fit for purpose. Judicial processes in this area have significant shortcomings and are difficult to access and thus fail to uphold the rule of law for some of the most vulnerable and marginalised in society. This threatens the rights of individuals and the hard-won reputation of our justice system. The Bar Council welcomes this opportunity to contribute to this inquiry, and our written evidence focuses on:
6. The Bail for Immigration Detainees’ (BID) success rate at bail hearings is 65%[4]. This organisation only has resources to assist a small number of people and limits its support to those who are not eligible for legal aid under LASPO or who are awaiting recognition of their eligibility for Exceptional Case Funding (ECF), among other criteria[5]. Therefore, its high rate of success suggests that the lack of access to legal advice and representation is a barrier to release from detention for numerous people who may in fact be eligible.
7. The dramatic cuts to immigration legal aid following the implementation of LASPO in 2012 have made legal aid unavailable for the underlying immigration case of detainees, other than in asylum cases.
8. While cases with a strong human rights element are eligible for legal aid funding for bail and asylum, these are subject to stringent ‘means and merits’ tests. In practice, legal aid funding is very difficult to attain.
9. ECF exists for detainees whose cases fall beyond the scope of LASPO, but where human rights issues are at stake. However, it is widely recognised among legal practitioners that this funding is nearly impossible to attain[6].
10. The DDA scheme provides legal advice through solicitors’ firms that have immigration and asylum contracts with the Legal Aid Agency (LAA). Regular DDA surgeries are held in Immigration Removal Centres (IRCs)[7]. In the view of the Bar Council, legal aid is too limited in scope and too difficult for those in detention to access effectively. Detainees navigate a complex and unforgiving system alone: we consider the process through which they must apply for bail or resolve their underlying immigration case to be inherently unfair, and thus a significant barrier to release from detention.
11. Once financial eligibility has been confirmed, the legal representative must convince the LAA that the case has at least a 50% chance for success, which can be difficult.
12. Research commissioned by the Bar Council suggests that many solicitors who participate in the DDA scheme are understandably cautious of taking on challenging cases without guarantee of reimbursement, particularly as detainees are often separated from even basic documentation – notwithstanding the often-unattainable levels of documentation required. Therefore, many detainees who should be eligible for legal aid are not represented. As one solicitor noted, “If someone doesn’t come through with income evidence quickly, I am not doing any work on it. And before I might have started the work, whereas now my fingers have been burnt”[8].
13. While individuals entering detention should be informed about the DDA scheme as part of their formal induction, awareness of the scheme was around 67% in May 2017[9]. This seriously limits the efficacy of the scheme.
14. Detainees can sign up for a 30-minute appointment in a DDA. This is a wholly inadequate length of time, considering many of these cases are urgent and complex, and legal practitioners may face issues such as a language barrier or emotional distress.
15. Seventy five per cent of those in detention are made to wait for more than a week before accessing one of these appointments, and 39% wait for more than two weeks[10]. This may not initially appear to be excessive, but is unacceptable when an innocent individual’s liberty is at stake.
16. It should be noted that this legal advice is only available to detainees in IRCs. The picture of those detained in prison is even grimmer as there is no immigration advice scheme comparable to the DDA, thus exacerbating detainees’ inability to challenge their detention effectively[11].
17. This hugely undermines the justice system’s reputation for fairness, as many immigration cases have become too financially risky for lawyers to undertake. Many legal practitioners have the impression that the LAA actively seeks to exclude cases from legal aid. The view of one solicitor interviewed was that the LAA “will look for the tiniest thing so they can say the whole case would be ineligible”[12]. As a result, if a lawyer starts work on a case, and the LAA does not accept the evidence for financial eligibility, the work will not be reimbursed.
18. Legal practitioners do attempt to mitigate these financial risks, but these measures can compromise the service offered and make release from detention less likely. For example, the Immigration Law Practitioners' Association, and other legal practitioners, have noted that less qualified or more junior staff may undertake detention work who lack the necessary skills and experience for such challenging cases[13].
19. Research has also highlighted concerns with the physical limitations of detention that may threaten good practice. For example, to meet in person, the lawyer must book well in advance with the detention centre and allow time for travel, as centres are often in remote or rural areas[14]. This means that witness statements are often over the phone, which has obvious drawbacks, and may itself not always be possible[15].
20. Although detainees in Immigration Removal Centres (IRCs) are allowed basic mobile phones and credit, some detention centres have poor reception, there may be language issues that hinder communication, and phones can be taken from detainees in segregation.
21. It is a widely held view among legal immigration practitioners that the process for achieving bail at tribunals is a lottery. In the research commissioned by the Bar Council, one barrister commented that “It’s totally arbitrary which judge you get and there’s a huge discrepancy in their attitudes”[16]. This assertion was repeated multiple times by interviewees.
22. This rate of failure to get bail is likely underpinned by the lack of legal advice and representation, as daily court listings for bail hearings, monitored between 3 Aug-3 Oct 2017, demonstrated that 21% of the applicants were listed as being without legal representation[17]. Even fewer applicants had legal representation in certain regional IRCs.
23. Applicants for bail often access the tribunal through a video link, with which lawyers complained that “[t]here are consistently technical issues”[18]. Furthermore, they noted that “the quality of voice of the person who doesn’t speak English as a first language means it’s not easy”. One barrister noted that there were bail hearings where the detainee was not even connected by video link.
24. Where the detainee does attend court, there may still be technical issues. In 2013 one third of the hearings monitored by Bail Observation Project (BOP) involved an interpreter, and of these over one third experienced difficulties, ranging from the wrong language or dialect to failure of the interpreters to turn up[19].
25. Furthermore, detainees are expected to provide documentary evidence, which is difficult to attain when they are separated from their property, and detention medical records are often sparse[20].
26. Bail summaries received scathing reviews from legal professionals, with one barrister noting that they were “appalling documents. Prepared not as a neutral summary but as justification, reasons or excuses as to why someone should be detained. I’ve seen examples of cut-and-paste paragraphs to cover [two scenarios]… [Not] any kind of genuine review of detention, just a civil servant… coming up with any reason they can for maintaining detention”[21]. Additionally, no bail summary is produced at all for some cases; one judge estimated that there was no bail summary produced for approximately 5 to 10% of hearings over which he presided[22].
27. Despite these significant concerns, bail decisions are subject to very limited oversight, and are only reviewed if they contain an error of law. Only very brief reasons for refusal are provided.
30. This undermines the fairness of the oversight system as marginalised individuals are unable to access the justice that they may need. Furthermore, it undermines liberty as a fundamental principle of the justice system.
31. JR is the only opportunity to challenge the lawfulness of immigration detention[24]. However, its effectiveness as an oversight mechanism is limited.[25]
32. The merits test for a legal aid funding for JR is even more stringent than for bail hearings, making it even more difficult for detainees to attain. Public funding is only provided if permission to proceed with the JR is granted, which occurs far along the JR process. According to the Public Law Project, legal aid lawyers taking on a JR claim are initially working at their own financial risk[26].
33. In research commissioned by the Bar Council, one barrister described preparing briefs for unlawful detention claims to be reviewed pro bono and noted how solicitors on the DDA scheme were reluctant to take these cases: “[i]t is nonsensical to say there is legal aid for detention, because the hurdles you have to go through to actually have the lawyer go on record and represent you and make the claim are so tedious and cumbersome that it rarely ever happens... Loads of instances of unlawful detention are going by without any applications being made.”
34. JR is a staged and complex process, and at each stage court fees must be paid or a waiver secured if legal aid is not available. It is challenging for anyone other than a legal practitioner, let alone an individual who is in detention and may have communication difficulties. Therefore, the lack of funding for legal advice and representation has severely limited the effectiveness of JR as an oversight tool.
Interaction with the Home Office and processing of casework
35. The research commissioned by the Bar Council indicated that the Home Office (HO) has processes in place to make access to legal advice and representation more difficult. This acts as a barrier to release from detention, as legal advice and representation cannot be administered effectively.
Documentation
36. In 2014, the HO introduced a system of 72 hours’ notice of a removal window of three months. This makes it harder for detainees bring a legal challenge or to challenge removal. Legal practitioners have noted that clients’ computer records show such phrases as “’Should not serve blah [sic] until a certain date, so they can’t do anything about it’ or ‘Should issue removal window so they don’t plan to subvert this’”[27]. This practice purposely limits possible access to legal advice and representation, and fails to uphold the fairness of our justice system.
37. Furthermore, the HO appears to be unwilling to disclose readily its internal casework documentation, which seriously limits the scope of legal challenges to detention. Lawyers are forced to make Subject Access Requests. Access to such information is vital to the fairness of the legal process. While the target time is 40 days to respond, lawyers have reported both shorter and longer waiting times, and one reported a request that took 11 months[28]. Lawyers may be forced bring a challenge to detention without full internal documentation, due to the urgency of the case, this puts clients at a disadvantage and acts as a barrier to their release.
38. Finally, it is reported that the HO makes misleading statements in their documentation. For example, one barrister received a bail summary that said that, “’[t]he JR is in the process of being expedited’”, when in fact the HO had merely written a letter to the tribunal asking them to expedite it[29].
39. Legal practitioners observe that, through a combination of poor training and a lack of supervision, Home Office Presenting Officers (HOPOs) waste time and resources, and prevent release from detention unnecessarily. They are given a series of ‘lines to take’ by the HO to ensure consistency, so lack key pieces of information about individual cases. One judge commented that “[s]ome HOPOS don't see what their role is. They have targets to keep people in detention. But their role should be to assist the tribunal to reach the correct decision in accordance with the law”[30].
40. In the context of a broad lack of legal representation for detainees, individuals are left to fend for themselves against officers who are under pressure to meet refusal and efficiency targets. According to lawyers interviewed, these officers have targets of a 60% rate of refusal[31]. The Bar Council believes that this threatens the fairness and reputation of our justice system.
41. According to HO statistics, by the end of June 2017, 271 people had been held more than six months, and 80 more than one year. [32] Government statistics do not capture multiple detentions[33]. The legal framework is vague on what constitutes a reasonable length of detention, so the lack of a time limit for detention is administratively convenient for the HO. It is the Bar Council’s view that this is not a good enough reason to deprive someone of their liberty. Furthermore, it undermines the rule of law when mechanisms to challenge the lawfulness of detention are so limited, and access to opportunities to resolve underlying immigration cases – or even get bail – are so restricted.
42. This is compounded by the lack of access to legal advice and representation, as detainees are unable to challenge their excessive detention times effectively.
43. The Bar Council would ask the Home Affairs Committee to consider making the following recommendations:
a) A time limit for administrative detention: Administrative detention must be proportionate to the purpose it serves, so should be limited to 28 days, to encourage efficient processing of casework by the HO and accountability of oversight mechanisms.
b) Legal advice and representation: Adequate legal aid for advice and representation must be made available to all those held in immigration detention, to tackle barriers to release from detention.
c) Judicial oversight: The Immigration Act 2016 introduced for the first time a limited provision for automatic bail hearings after four months of detention. However, automatic judicial oversight of the initial decision to detain would help to prevent unnecessary detention and could reduce public expenditure from the large compensation costs. This would also hold the HO accountable for its decisions and uphold the rule of law more effectively.
[1] In 2017, the Bar Council commissioned a research paper by Dr Anna Lindley of SOAS (University of London), entitled ‘Injustice in Immigration Detention: Perspectives from legal professionals’. This research included a review of existing information and an analysis of key statistical sources. Finally, it included 21 semi-structured qualitative interviews with a range of legal professionals.
[2] Anna Lindley, ‘Injustices in Immigration Detention: Perspectives from legal professionals’, p. 13.
[3] Terry McGuinness and Melanie Gower, ‘Immigration Detention in the UK: An Overview’ House of Commons Briefing Paper No. 7294 (2017), pp. 13-14.
[4] Lindley, ‘Injustices in Immigration Detention’, p. 41.
[5] http://www.biduk.org/pages/59-bid-s-deportation-advice-project, accessed 19 April 2018.
[6] Lindley, ‘Injustices in Immigration Detention’, p. 42.
[7] Ibid., p. 38.
[8] Ibid., p. 40.
[9] Bail for Immigration Detainees (BID) ‘Legal Advice Survey’ (London: BID, various dates 2010-17).
[10] Lindley, ‘Injustices in Immigration Detention’, p. 39.
[11] BID conducted a survey of its casework files, and found only 6% of those who had been held in prison received any immigration advice during that period.
[12] Lindley, ‘Injustices in Immigration Detention’, p. 40
[13] Ibid., p. 50.
[14] Ibid., p. 32.
[15] Ibid., p. 51.
[16] Ibid., p. 29.
[17] Ibid., pp. 21-22.
[18] Ibid., p. 21.
[19] BOP ‘Still a Travesty: Justice in Immigration Bail Hearings’, (London: BOP, 2013).
[20] Ibid., p. 33.
[21] Ibid., p. 21.
[22] Ibid., p. 21.
[23] Immigration Act 2016, Schedule 10, Paragraph 11.
[24] Robert Thomas, 'Immigration Judicial Reviews: Resources, Caseload, and 'System-manageability efficiency' Judicial Review, 21, no.3 (2016), 209-220.
[25] Lindley, ‘Injustices in Immigration Detention’, p. 36.
[26] Lindley, ‘Injustices in Immigration Detention’, p. 41.
[27] Ibid., p. 34.
[28] Ibid., p. 33.
[29] Ibid., p. 24.
[30] Ibid., p. 22.
[31] https://www.theguardian.com/uk-news/2013/oct/26/asylum-cases-home-office-fix, accessed 19 April 2018.
[32] Home Office Immigration Statistics – April to June 2017, Detention Tables dt11q.
[33] Lindley, ‘Injustice in Immigration Detention’, p. 13.