Immigration detention is once more in the news and was debated in Parliament this week, this time because of a hunger strike by women held at Yarls' Wood, the detention centre where abuse by guards was filmed undercover for Channel 4 in 2015.
That documentary was one trigger for the government to commission Stephen Shaw to report on immigration detention. Annexed to his report was Jeremy Johnson QC's review of the cases in which the treatment of persons in immigration detention has been found to breach Article 3 of the European Convention on Human Rights, the prohibition on torture, inhuman and degrading treatment or punishment.
Those were just the cases that the Government fought. Cases that settle are settled subject to strict confidentiality clauses, with the only glimpse into what is happening provided by the details of sums paid out in damages contained in Home Office annual report and accounts.
The report for the year 2016-2017 tells us:
Payments totalling £40.3 million were made by the Home Office in relation to 6,011 legal claims. These include 4,173 adverse legal cost payments totalling £33.4 million; 195 ex-gratia cases totalling £1.1 million; 1,598 compensation payments totalling £3.3 million; 32 cases of unlawful detention totalling £1.8 million and 13 cases of tribunal costs totalling £700,000.
Stephen Shaw concluded:
"Immigration detention has increased, is increasing, and- whether by better screening, more effective reviews, or formal time limit - it ought to be reduced."
The hunger strikers, like the Bar Council, call for an end to indefinite detention. The Minister, Caroline Nokes MP, was pressed on this during the debate. Immigration detention is by administrative fiat and without limit of time. Until last month no one detained under Immigration Act powers was brought before a court to review their detention unless they instigated this by making a bail application. That is still the position for all those facing deportation. Others have, since February this year, at least one bail hearing every four months, unless they waive the right. Some have received letters on entry into detention inviting them to exercise that waiver.
There is no guarantee of legal representation at the bail hearing. Legal aid is available but legal representation is difficult to find especially for those held in prison service establishments. Because there is no legal aid for the underlying immigration (as opposed to asylum) case it is difficult to contest the imminence of removal, often the main plank of the Home Office case for maintaining detention. The sterling work of barristers who represent pro bono for the charity Bail for Immigration Detainees serves to highlight the types of meritorious case that all too often go without representation.
The Minister told the House of Commons that 92% of those held are released within four months; 63% within a month. At the time of the Shaw review 30,000 persons were detained a year, falling to just over 27,000 in the year to June 2017. Thus over 12,000 people spend longer than a month in detention, over 2,000 for longer than four months,
The Minister pointed to monthly internal Home Office reviews of detention, at increasing levels of seniority the longer the person is detained, as a safeguard. In practice, they are not. In a recent case, despite a report from a detention centre doctor confirming that a man was a survivor of torture, which according to the post-Shaw "adults at risk" policy creates a 'clear presumption' that he should not be detained, no mention of this was made in five successive monthly reviews. After the fifth review his lawyers obtained a decision from the Home Office's own 'competent authority' on slavery and trafficking that there were reasonable grounds for believing that he had been enslaved. The next monthly review contained one line, referring to the policy: "Adult at risk level 2." No more; no indication of where the concern was torture, slavery, or both. No release. That came as a result of his very first bail hearing, but only after he had been detained for some seven months.
The Minister confirmed in the debate that she anticipates receiving Stephen Shaw's follow up report, reviewing progress made "very shortly indeed". The successful legal challenges of recent months lead immigration lawyers to anticipate that the report will be critical and many hope that it will again raise indefinite detention, providing a further opportunity to contest its compatibility with the rule of law.
Alison Harvey is a barrister at No5 chambers