Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  Following the Shaw Report, the Home Office introduced a new policy for detaining vulnerable adults. Although the total number of people being detained fell as a result, the new policy seems to have led to a higher rate of detention for those who are the most vulnerable. A record seventeen migrants died in immigration detention in 2017. One of them was Carlington Spencer, a 38-year-old man who suffered a stroke at Morton Hall but was denied potentially life-saving emergency care because detention staff wrongly presumed that he had taken illegal drugs. The coroner criticised the ‘confirmatory bias’ by staff.36 HM chief inspector of prisons also highlighted the case of a wheelchair user who had tried to set himself on fire after being held for fifteen months, and that of a blind detainee who was held for over a year.37

  ‘Detention too often appears to be the default position’, wrote Shaw in his 2018 follow-up report. While researching the new report, Shaw encountered a 77-year-old woman detained at Colnbrook who had complex health needs and a 71-year-old man who had been initially detained at Brook House, but then moved to Tinsley House for a proposed return on a charter fight. ‘Having made further enquiries,’ Shaw wrote, ‘I did not see how either of these detentions was possibly justified.’ He was ‘utterly bemused and appalled’ by the detention of the 77-year-old in particular, and enquiries revealed that a total of fifty migrants over the age of seventy had been detained between September 2016 and November 2017.38 A parliamentary committee found in 2019 that the new policy ‘has not only failed to mitigate the harmful impact of detention on vulnerable people but has failed to deliver a reduction in the number of vulnerable people in detention’.39

  To make this system work, the officials at the Home Office who are responsible for decisions to detain or release are kept separate from those whose lives they govern. They are, as Mary Bosworth writes, ‘sequestered from the potentially destabilising effects of facing up to those they wish to remove’. One official who had, unusually, visited a detention centre told Shaw, somewhat ruefully, that her ‘job had been easier before the visit as it had been possible to consider detainees just as case files rather than as people’. One has to wonder what sort of human being would have made a positive decision to keep Alois Dvorzak, Xiao Yun Xue or MD in detention if they had actually met them, for example. The separation of officials from detainees is not only ‘bureaucratically effective’, as Bosworth puts it, militating in favour of detention, but it also creates uncertainty and despair amongst detainees and, to a lesser extent, amongst detention centre staff. The distant decision-makers are made to seem remote, unknown and ineffable, with an almost God-like power over the lives of detainees. One of Shaw’s recommendations – arguably his most important – was that the caseworkers making detention decisions should actually meet those they decide to detain. The recommendation was rejected by the Home Office.

  THE PURPOSE OF DETENTION

  What is driving this large-scale and cruel system of human warehousing? No one seems to want it, and even by the Home Office’s own logic it all seems to make no sense given that ever fewer detainees are actually removed from the country as a result. The immigration detention system seems to have a life of its own, driven onward by its own momentum.

  The legally permissible purposes of immigration detention are supposed to be to interview migrants on arrival, to investigate their cases and, ultimately, to remove them. Where a migrant has committed a criminal offence, detention can also be used for the purpose of protecting the public, although even then detention cannot go on if there is no realistic prospect of removal. Some migrants are detained for a very short time, usually on their arrival to the UK. They may be refused entry and then held for a few hours or overnight before being sent back to their country of origin on another flight. Long-term detention is most often utilised in cases involving the attempted removal of foreign criminals who have already served a prison sentence but who, at the end of it, are taken straight into immigration detention rather than being released. This is not always so, as the case of MD from Guinea showed. In that case, she was detained on arrival and kept in detention for eleven months.

  Some detention decisions are driven by the fear of generating stories in the press. Foreign criminals reaching the end of their sentence will be detained under immigration powers come what may and no matter what the chances of their removal within a reasonable time period. In 2012, a joint report by HM inspector of prisons and the chief inspector of borders and immigration found that decisions to detain foreign criminals could be made at a junior level, while decisions to release had to be referred to very senior management, setting up a system in which it is both easier and simpler for an official to detain rather than release. The inspectors found this was ‘clearly inconsistent with the presumption in favour of release’.

  Abdulrahman Mohammed was a career criminal with offences ranging from the petty to the serious: from disorderly behaviour and shoplifting to robbery, burglary, and possession of an offensive weapon. He was detained repeatedly by the Home Office, despite there being no realistic prospect of his being removed to Somalia, which was a war zone at the time. One of the official reasons stated for his detention was unusually candid: ‘If you are released from detention, our actions can lead to a negative view of the Home Office by the general public who may see the department as failing in its duty to protect them from criminals and therefore there is a high risk of harm to the public.’40

  Protecting the reputation of the Home Office is definitely not one of the lawful, permissible reasons for detaining someone. Mohammed was awarded £78,500 in damages as a result. The case highlighted a worrying trend in deportation and detention decision-making. Government officials are supposed to follow and obey the law and judges should be a last resort. Instead, foreign criminals are frequently issued with deportation orders and detained come what may. Judges are then blamed by the media and even the Home Office for upholding the law.

  The huge expansion in detention centres that we considered earlier was initiated by the 1997 to 2010 Labour government. In the four years between 1997 and 2001 alone, the number of detention places trebled from around 900 to 2,800. The rationale was never stated clearly, though a whole chapter was dedicated to detention in the first Labour White Paper on immigration: ‘Fairer, Faster, Firmer’.41 Here we are told that ‘effective enforcement of immigration control requires some immigration offenders to be detained’ and that ‘detention is necessary to ensure the integrity of our immigration control’. What we are not told is how detention will achieve this, other than that it would ‘support an increased number of removals’. But would all ‘immigration offenders’ be detained and removed? If not, what percentage might be? If a small percentage, which is inevitable without a programme of mass detention and removal being put in place, how does that really make immigration controls ‘effective’ and ensure their ‘integrity’?

  In the second Labour White Paper, ‘Secure Borders, Safe Haven’, a new pledge was introduced to remove as many as 30,000 failed asylum seekers per year, or 2,500 per month, by the spring of 2003.42 To help achieve this detention, capacity would be increased by a further 40 per cent to 4,000 places and detention centres were to be re-titled ‘removal’ centres, in order to signal their real purpose: to ‘facilitate an increased rate of removal’. Within months, David Blunkett, then Home Secretary, had to abandon the removals pledge as being completely impractical.43 Despite this, the detention centre building programme continued. In September 2004 Tony Blair introduced yet another commitment, this time to remove more failed asylum seekers than new applicants by the end of 2005, ‘and so restore faith in a system that we know has been abused’.44 The nature of the target seemed to imply that all, or at least most, failed asylum seekers could and would ultimately be removed. In 2006, the Public Accounts Committee also seemed to be entertaining this hypothetical possibility when it concluded, ‘It would take between ten and eighteen years to clear the existing backlog’ of removals even if no new applications were made.45 To
be fair, their comments can certainly also be read as ridiculing the possibility.

  Following Blair’s speech, removals did increase to over 21,000 per year, but only before falling back again year-on-year after that. (The Home Office statistical series does not extend back further than 2004, but press reports indicate that the totals were lower in previous years.) Today, the number of enforced removals per year stands lower than at any time since the turn of the millennium: fewer than 8,000 per year.46

  The reality is that detaining and removing all unauthorised migrants would have required huge resources and been hugely controversial. This was implicitly recognised by Labour, as the pool of people subject to detention and removal was reduced by means of a regularisation programme for families around 2003. This was in all but name an amnesty, involving granting legal status to a significant number of the failed asylum seekers that the government judged it would be hardest and perhaps cruellest to remove. The decision not to impose controls when the European Union expanded in 2004 had the effect of regularising a further tranche of migrants from Eastern Europe, who had until then been unlawfully resident. A ‘legacy backlog clearance exercise’, another amnesty in all but name, involving the grant of status to thousands more unauthorised migrants was also carried out between 2006 and 2010.

  Since 2010, governments have abandoned regularisation paired with detention and enforced removal as a means of reducing the size of the unauthorised population. Instead, governments have purported to rely, without any evidence that they are effective, on the ‘hostile environment’ policies discussed in Chapter 3. Following what seems to have been some genuine introspection about which migrants are detained and why, the Home Office stated in 2018 that detention is part of its broader immigration enforcement strategy in support of its vision ‘to reduce the size of the illegal population and the harm it causes’.47 But as Stephen Shaw observed in his review, it is unclear how immigration detention will be used as part of this plan, why the current high number of places available is needed for the strategy to succeed and why, if there is a broader strategy, the number of detainees appears in reality to be determined by the number of places available.

  There are two ways in which immigration detention can arguably be used to achieve ‘effective enforcement’. One is detention as literal enforcement, with all, or at least a very high proportion of, unauthorised migrants being detained and removed. We can see this strategy being attempted in the United States, where a wall is being built, border patrols have been massively expanded, there are over 50,000 detention places and half a million migrants are detained each year.48 Years earlier, Labour seemed at times to be pursuing this enforcement policy in tandem with occasional targeted amnesties. The other possibility is detention as deterrent. It is possible that unauthorised migrants might think twice about coming to the United Kingdom if they perceive a real risk of being detained and removed, and existing unauthorised residents might decide that the trauma of detention is too risky and therefore decide to leave. This may be the rationale behind current government policy, although if so, it has not been publicly stated. It would certainly match with the overall prevailing policy of immigration deterrence that has been pursued since around 2012, though.

  The current approach to immigration detention achieves neither of these potential strategies. In fact, it is quantifiably failing even at the basic justification of facilitating removal. Over half of detainees at so-called ‘removal’ centres are released back into the community rather than being removed, for instance. The proportion of detainees pointlessly held in this way and then released has actually been increasing in recent years. The problems with literal enforcement are that it is extremely expensive, the human cost to those removed and their families and communities is immense, and its effectiveness is unproven given that it has never really been attempted before. As previously mentioned, the UK’s unauthorised migrant population that these measures target is currently estimated to number between 600,000 and 1.2 million. Detecting and removing that many people would be impractical, even aside from any moral or legal objections we might have. Even if it was possible, there is no public or political appetite for such a radical programme in the United Kingdom. Similar problems arise with any genuine attempt at deterrence. With less than 8,000 enforced removals per year currently, the percentage of the unauthorised population being removed is somewhere between 1.3 and 0.7 per cent. That does not look like a real risk of detention and removal that would be sufficient to have a deterrent effect. Besides, as we saw in Chapter 6, all the available evidence suggests that country-specific policies and practices are irrelevant to migrant decision-making.

  The only purpose that the immigration detention system seems to be performing at present is to serve a sense of moral righteousness. Unlawful residence is, obviously, in breach of the law. Breaking the law should be penalised because otherwise the law is meaningless and public opinion is certainly not willing to countenance the idea that immigration laws are meaningless. Criminal law sanctions against those who breach immigration laws are available but would be highly expensive to enforce. It would also serve no useful purpose to detain a migrant in prison for weeks or months, only to remove him or her at its conclusion; why not simply remove them in the first place? And this is all before taking into account that criminal law enforcement is even more impractical and expensive than the enforcement of administrative removals.

  Seen like this, the purpose of immigration detention seems to be to punish. But not all unauthorised migrants can be punished in this way, so current immigration detention policy says that it is better to punish some rather than none at all. This might explain why all attempts to reform the system have failed; realising that it performs no useful direct policy function, those officials who operate the system intend it to be punitive in nature. Whatever the intention, this is certainly how detainees themselves experience the system, and their insights should not lightly be disregarded. Attempts to persuade the Home Office as an institution, and officials as humans, to exercise restraint and properly to care for the welfare of detainees miss the point. At least as far as those responsible are concerned, the reason detainees are in detention is because they deserve it.

  NOTES

  1 ‘Report on an unannounced inspection of Harmondsworth Immigration Removal Centre’, HM Chief Inspector of Prisons, January 2014.

  2 ‘Harmondsworth death: who was Alois Dvorzac?’, Channel 4 News, 16 January 2014.

  3 See Phil Miller’s articles at: https://www.opendemocracy.net/search/?query=Alois+Dvorzak

  4 Amrit Wilson writing in The Guardian and quoted in Mary Bosworth, Inside Immigration Detention (Oxford: Oxford University Press, 2014), p. 39.

  5 Bosworth, Inside Immigration Detention, p. 10.

  6 Xue v Secretary of State for the Home Department [2015] EWHC 825 (Admin).

  7 R (on the Application of MD) v Secretary of State for the Home Department [2014] EWHC 2249 (Admin).

  8 ‘Deaths of immigration detainees’, Inquest, available at: https://www.inquest.org.uk/deaths-of-immigration-detainees

  9 P. Sen, J. Arugnanaseelan, E. Connell, C. Katona, A. A. Khan, P. Moran et al., ‘Mental health morbidity among people subject to immigration detention in the UK: A feasibility study’, Epidemiology and Psychiatric Sciences (2018), vol. 27, no. 6, pp. 628–37.

  10 Mary Bosworth, ‘Affect and Authority in Immigration Detention’, available at: https://ora.ox.ac.uk/objects/uuid:497bf576-d284-4869-a29f-9b70eb1f7197/download_file?file_format=pdf&safe_filename=Mary%2BBosworth%252C%2BAuthority%2Band%2Baffect%2Bin%2Bimmigration%2Bdetention.pdf&type_of_work=Journal+article. The names used by Bosworth are pseudonyms.

  11 ‘G4S: “What I saw when I went undercover”’, BBC News, 4 September 2017.

  12 ‘Detained forever? Foreign prisoners and indefinite detention’, Free Movement, 7 March 2011.

  13 R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB).

  14 Asylum Information Database, available
at: https://www.asylumineurope.org/reports

  15 Directive 2008/115/EC.

  16 Detention tables, ‘Table dt_14_q: Top 20 longest lengths of detention of people in detention by sex’, Home Office Immigration Statistics.

  17 Bosworth, Inside Immigration Detention, pp. 43–4.

  18 Ibid., p. 3.

  19 Ibid., pp. 13–14.

  20 Oakington closed in 2010 and The Cedars, Dover, Haslar, Campsfield and The Verne have all closed in recent years.

  21 ‘Profile: Yarl’s Wood Detention Centre’, The Guardian, 15 February 2002.

  22 ‘Immigration detention: Fourteenth Report of Session 2017–19’, cited in Home Affairs Committee, 12 March 2019, p. 7.

  23 ‘Annual Report and Accounts 2018–19’, Home Office, 6 June 2019.

  24 R (Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin).

  25 ‘The effectiveness and impact of immigration detention casework: A joint thematic review by HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration’, 2012, available at: https://www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2014/04/immigration-detention-casework-2012.pdf

  26 M. von Werthern, K. Robjant, Z. Chui et al., ‘The impact of immigration detention on mental health: a systematic review’, BMC Psychiatry, vol. 18, no. 382 (2018).

  27 Freedom of Information request, available at: https://www.whatdotheyknow.com/request/489809/response/1182364/attach/3/FOI%2048932%20Scott.pdf

  28 ‘Europe’s Unauthorized Immigrant Population Peaks in 2016, Then Levels Off’, Pew Research, and Jolly, Thomas and Stanyer, ‘London’s children and young people who are not British citizens: A profile’.

  29 Hiroshi Motomura, Immigration Outside the Law (Oxford: Oxford University Press, 2014), p. 26.