Written evidence from Duncan Lewis Solicitors (IMD0047)

A deficiency in the legal framework for detention pending administrative removal

1. The most important legal limit on the Secretary of State for the Home Department’s (‘SSHD’) power to detain is the group of principles derived from R v Governor of Durham Prison ex p Hardial Singh [1984] WLR 704, which applies to all instances of detention under the Immigration Acts. The Hardial Singh principles do not adequately constrain the power to detain illegal entrants and overstayers because they were developed in the context of long-term detention of serious criminals with durable legal and practical barriers to removal. The unreflective and inappropriate application of the Hardial Singh principles to both detention pending deportation (under the power in Schedule 3 to the Immigration Act 1971 – ‘Schedule 3 detention’) and detention pending administrative removal (under the power in Schedule 2 to the Immigration Act 1971 – ‘Schedule 2 detention’) has led to migrants, including asylum seekers, being lawfully detained for months and years even though the likelihood of removal is low. Detention is the only area of immigration law where there is no differentiation between deportation and administrative removal.

2. The Hardial Singh principles were designed to restrain the SSHD from indefinitely detaining serious offenders while officials sought to obtain travel documents from their country of origin and resolved legal claims preventing removal. Hardial Singh himself was a persistent burglar and the other leading cases in the appellate courts concern a sex offender convicted of indecent assault[1], a violent paedophile[2] and a man convicted of unlawful wounding[3]. In these cases the main issue for the court was how to balance the SSHD’s legitimate desire to protect the public by detaining a serious criminal while also trying to resolve complicated barriers to removal against the criminal’s right to liberty. The factual circumstances are very different to Schedule 2 detention because in those cases the public interest in removal, as defined by the Immigration Acts, is much lower and there is usually no risk of the detainee committing offences if granted immigration bail.

3. The effect of the law developing in the context of Schedule 3 detention is that the courts do not consider the lawfulness of Schedule 2 detention by reference to the two main issues for assessing whether that type of detention is reasonable, namely: 1) the likelihood of removal actually taking place; and 2) whether contact with the individual could be managed using bail conditions. If it is unlikely that the SSHD will remove the individual and they could be managed through immigration bail or community- based alternatives, then it is irrational to keep them in a detention centre, even if there is a small chance of them being removed at some point in the future. However, at present, it would not be unlawful to detain that individual for a lengthy period of time.

4. This deficiency in the common law can be illustrated by analysing the Hardial Singh principles. The 3rd Hardial Singh principle, which is the most important safeguard against prolonged detention because it requires the SSHD to look forward, states:

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.

5. This means that detention is only unlawful if it is obvious that removal will not take place within a reasonable period of time. Consideration of whether an alternative to detention would suffice to maintain contact with the detainee only takes place through the assessment of what is a ‘reasonable period’ of detention. That is inadequate because the length of detention which is ‘reasonable’ should depend on both the likelihood of removal and the likelihood of compliance with immigration bail conditions. By separating these issues the law allows detention to be lawful where there is a persistent but low possibility of removal taking place. This has created a lawful ‘revolving door’ in the UK immigration detention system.

6. For example, Schedule 2 detainees often raise asylum or human rights claims. Establishing these claims will almost always involve an appeal or a judicial review. As these legal claims proceed it often looks like the detainee can be removed soon, i.e., after the refusal of the asylum claim by the SSHD, but both sides know that removal will not take place because the detainee will submit an appeal or apply for judicial review. However, simply because there is a low possibility of removal taking place throughout the process, an individual can be lawfully detained.

7. There is not space here for a full historical account of how the courts came to apply the Hardial Singh principles to both Schedule 2 and Schedule 3 detention, but no English court has provided an explanation for doing this and it appears to have happened somewhat unintentionally. The Hardial Singh principles, if the SSHD complied with them, would provide a sufficient safeguard against the extended detention.

8. However, in the real world, we have seen countless cases where the Hardial Singh principles are not complied with and we strongly believe that as a result, there are insufficient safeguards against irrationally extended detention. As far as common law goes, the courts have, within their constitutional remit, given the clearest possible guidance as to detention limits. However, in considering whether to deprive someone of their liberty, it is evident, from our experience, that only a strict legislative framework that accurately reflects and clarifies Hardial Singh principles will provide greater protection to all detainees. Moreover, it is abundantly clear that the Home Office is incapable or unwilling to properly apply Hardial Singh and therefore automatic judicial oversight throughout the period of every detention is required. With that in place, it seems more likely that the Home Office would apply Hardial Singh more faithfully and with greater diligence. 

Policy a weaker safeguard than law

9. A related issue is the weak legal basis for the safeguards designed to protect vulnerable people and detention review. These safeguards are set out in published policies which the SSHD is obliged to follow unless he has a good reason not do so. The use of policy rather than primary legislation causes two problems.

10. First, the SSHD has discretion to decide the scope of the legal safeguards and can amend them at any time to reduce the burden. An example of this problem is the Adults at Risk policy which was put in place in order to fulfil s. 59 of the Immigration Act 2016. The text of the primary legislation did not require the policy to take any particular form and the SSHD used his discretion to issue a policy which led to high levels of detention amongst vulnerable groups.

11. Second, the consequences of a breach of policy are not sufficiently serious. Even if a detainee successfully challenges the lawfulness of detention, they will only obtain substantive damages if they can show that they would not have been detained anyway. The effect of this is that immigration officers skip detention reviews with impunity because the SSHD will only be required to pay substantive damages if the detention could not have been otherwise justified.

The arduous journey to the High Court

12. Everyone who works in this field knows that most instances of unlawful detention go unchallenged. There are some inherent difficulties in bringing a claim on behalf of someone who is locked up, but most of the problems are caused by the Lord Chancellor. Those detained under immigration powers in prison face separate issues which will be discussed below.

13. For detainees held in an immigration removal centre (‘IRC’) the main route to a lawyer is through the IRC ‘surgery’ system, which involves the Legal Aid Agency (‘LAA’) paying a legal practitioner to go to the IRC and spent 30 minutes with around ten separate detainees over the course of a day. In theory the practitioner should be able to identity when someone might be unlawfully detained and take them on as a client. One major problem is that any work conducted before the judicial review claim has been filed is done at risk because the LAA only guarantees payment if a claim is filed and permission to proceed is granted by a judge.

14. I also have real concerns as to how the new advice surgery contracts have been distributed across a number of law firms. Many of these firms will have limited resources; small staff numbers and no experience in complex detention cases. The ability to run test cases to challenge structural illegality resulting from Home Office policies and practices. The ability to run such cases is vital not only to those affected by the unlawful policy or practice, but it enables the courts to look at a complex issue in one coordinated challenge, rather than being inundated with high numbers of individual challenges.

15. The situation is significantly worse for people detained in prison under immigration powers. There are no legal aid surgeries for detainees in prison and the Prison Rules limit the contact detainees have the outside world. Access to lawyers for these individuals depends on referrals by charities or other detainees passing information to their own lawyers. For example, MM, a failed asylum seeker detained at HMP Belmarsh under Schedule 2 powers, obtained a lawyer by tearing out a page from his Koran, writing his name and prison reference number around the text, and then handing this to a friend who implored his own lawyer to take on MM as a client. For detainees without basic English there is little possibility of obtaining a lawyer. Being detained in prison is akin to being thrown in the Bastille.

The unlawful Lock-in regime

16. Conditions in detention are meant to comply with the Detention Centre Rules, which imposes the following stipulations about detention conditions:

Rule 3(1) The purpose of detention centres shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment.

Rule 39(1): Security shall be maintained, but no more restriction than is required for safe custody and well ordered community life.

17. We have seen regular and serious complaints from detained clients about the extended time periods during which they are locked in their cells at Brook House IRC, in overcrowded and insanitary cell conditions including unscreened toilets, with no lid for the toilet-bowl, and a lack of ventilation in the cell. In particular, we heard complaints from Muslim detainees that they had no choice but to perform daily prayers in their cells in these conditions due to lock-in regime. The Panorama documentary on Brook House revealed prison-like conditions, and under-resourced detention staff who abused detainees and seemed to be out of control. Following judicial review proceedings issues by our client and a client of law firm Deighton Pierce Glynn (DPG), what was exposed in that documentary is now subject to a special inquiry to comply with the state’s positive investigatory obligations under Article 3 of the European Convention on Human Rights (‘ECHR’). Moreover, these issues are exacerbated by the lack of published policy or procedure for determining who is allocated to the differing regimes of each IRC.

18. The lock-in regime varies from centre to centre, but in Brook House detainees are locked in their cells between 9pm-8am each day, with two 30 minute roll counts during the day in a period within the hours of 12-1pm and 5-6pm, and so detainees are locked in their cells for up to 12 hours a day in total. This regime has been in operation since the opening of Brook House in 2009 as a condition of tending/contractual arrangements between SSHD and G4S.  We argue that the conditions in the cells make the lock-in regime unlawful under Arts 3, 5 & 8 ECHR, in particular because of unscreened/unsanitary toilets, detaining 3 men in 2 man cells, lack of ventilation and cell-mates needing to smoke.

19. In on-going litigation we argued that the SSHD’s authorisation and operation of ‘lock-ins’ at Brook House is unlawful and in breach of the Detention Centre Rules 2001, a number of Detention Service Orders (‘DSOs’) and Arts. 3/5/8 ECHR; Detention and/or its conditions in the IRC breached Article 9 ECHR; Detention and/or its conditions in the IRC were indirectly discriminatory contrary to Art 14 ECHR read together with Art 9 and/or s19 Equality Act 2010. The High Court has already found that the lock-in regime has been implemented and imposed without due regard to the public sector equality duty under s149 Equality Act 2010. The High Court also ruled that the SSHD’s policy under DSO 2/2014 of allowing detainees to smoke in their room was unlawful and in breach of the Health Act 2006 and the Smoke-free Regulations 2007.

(Almost) unpaid work in detention

20. Many of our clients work whilst in detention. When they informed us that they were being paid £1 per hour for their work we started to research the legal position. Immigration detainees are exempt from the national minimum wage by Section 153A of the Immigration and Asylum Act 1999. Through our research, we discovered the DSO/01/2013 on Paid Work which sets out that detainees cannot be paid more than £1 per hour (or £1.25 for specified projects) for their work in detention. We knew that it would be hard to challenge the primary legislation. However, the DSO seemed to be the way to approach this challenge – a maximum wage rate of £1 per hour seemed to be exploitative and inflexible.

21. The more we spoke to our clients, the more we realised that they were doing fundamental work necessary to the maintenance of the detention centres, such as cleaning, catering and even welfare support. It became increasingly clear that these occupations were not ‘activities’, they were jobs which would have to be done by external workers if not done by the detainees. The detainees we spoke to emphasised that they needed the money they made from this work to buy essentials such as food and phone credit to speak to their legal representatives.

22. Our work triggered a review of the rate of pay which was finally completed in April 2018. One option provided to increase pay rates (and/or weekly allowance) with inflation to £1.15 per hour. The SSHD decided against this option and therefore the rate of pay has remained at £1 an hour. Many suppliers indicated in the review that they were willing to pay more for the work done by detainees and nearly all detainees surveyed requested more money. We submit that this failure to increase the pay rate is irrational and unlawful.

31 October 2018