openJustice: Opinion

“We’re like sitting ducks”: how the Home Office is placing life and liberty at risk

New research reveals that the Home Office’s approach to immigration detention during the pandemic is unlawful and contrary to public health.

Rudy Schulkind
5 June 2020
Photo by Erik Mclean on Unsplash

Last month I wrote for openDemocracy about how, when the UK government announced strict lockdown measures applicable to everyone in the UK, it continued to detain people under immigration powers despite clear evidence that detention centres and prisons (where people are also detained under immigration powers) provide fertile conditions for the rapid spread of COVID-19. One of our clients said he and other people in detention were “like sitting ducks”. People are held in detention indefinitely. Those who contact us are understandably terrified.

At Bail for Immigration Detainees (BID) we provide legal advice and representation to secure immigration detainees’ release on bail. Since the lockdown was announced on 23rd March we have provided representation in 88 hearings, and 83 have been granted bail. This 94% success rate compares with BID’s success rate of 59% during 2018-19, and an overall success rate for all bail applications made to the First-tier Tribunal of around 30% outside of the current coronavirus crisis. In every single one of the cases, the Home Office has argued that detention should be maintained.

In research published by BID last week (Risky Business: detention decision-making during the COVID-19 pandemic), we analysed the Home Office’s approach to detention decision-making in 42 of our successful bail cases. We found their approach to be callous, unnecessary and contrary to public health advice and instructions.

The use of immigration detention is only permitted to enable the government to effect an individual’s removal from the UK and only when all other alternatives have been considered and rejected. During the pandemic, enforced removal is, in most cases, impossible and in all cases irresponsible at a time when the general public has been instructed to maintain social distance. As long as this remains the case, the lawful basis for detention falls away.

In our research there were only seven out of 42 cases where the Home Office made reference to the current travel restrictions and the fact that these could have an impact on the imminence of removal. In the vast majority of cases the Home Office simply ignored the impact of the pandemic on removal and operated a ‘business as usual’ approach.

Such a casual approach to the deprivation of liberty would not be acceptable in any other context

The government's justification for the continued use of immigration detention at this time has rested squarely on public protection arguments. In a statement made to the Independent earlier this week a Home Office spokesperson said:

"The public expects that we maintain law and order and keep them safe from high-harm individuals, which is why the vast majority of those currently in detention are foreign national offenders."

This familiar mantra reminds us that, when backed into a corner, the government invokes the highly racialized caricature of the ‘dangerous foreign criminal’ to justify detention and avoid scrutiny. Irrespective of the weakness of its arguments, the Home Office feels it is on safe ground here.

This vague and incendiary rhetoric from the Home Office does not substitute for clarity and transparency surrounding current detention policies in operation during the pandemic. Despite BID and other NGOs making repeated demands for disclosure of these policies, no such disclosure has been forthcoming. It was less than a month ago that Wendy Williams, author of the government’s Windrush: lessons learned review, found that the Home Office’s lack of openness to scrutiny played a causative role in the Windrush scandal.

In only nine out of the 42 cases we examined in our research did the Home Office allege that clients posed a high risk of harm. In another nine cases they alleged a medium risk. In the remaining 24 cases the level of risk was ambiguously defined or not expressly stated at all. In the majority of cases the Home Office’s own risk assessment did not include any evidence from the probation service.

All too often we have seen the Home Office characterise an entire group of individuals as 'high harm' on the basis of the serious convictions of a few individuals. This is both misleading and inflammatory, and has dire consequences for those deportees who are perceived as dangerous and violent individuals and stigmatised – sometimes killed – upon return.

Of the 42 applicants within the study, 32 had particular vulnerabilities. The Home Office had accepted that 23 of the applicants within the study were “adults at risk” in detention – the policy under which individuals are recognised as vulnerable to harm and have their detention reviewed as a result. There were nine individuals who had underlying health problems that under the government’s own guidelines make them vulnerable to severe illness if they contract COVID-19. Similarly, a report by Her Majesty’s Inspector of Prisons published yesterday found that almost half of those who remain in detention are accepted by the Home Office to be “adults at risk” and a number of individuals met the criteria for shielding. It is unforgiveable that the government would maintain the detention – putatively for the purpose of removal – of people who it would otherwise urge not to go outside for 12 weeks.

In two thirds of cases where a parent was being detained, the Home Office simply ignored the question of the best interests of the child – in breach of their own statutory duty to safeguard and promote the welfare of children in the UK.

Instead of improving decision-making, the Home Office has responded by writing to the President of the Tribunal to express ‘surprise’ at the high number of people being granted bail, in what was seen by many lawyers as an attempt to influence the independent judiciary. In his reply to the Home Office the President reminded the Home Office that the courts decide bail applications in accordance with the law, and criticised the Home Office’s approach to bail applications.

The Home Office’s approach to our clients’ detention has been callous, contrary to public health and unnecessary. Such a casual approach to the deprivation of liberty would not be acceptable in any other context. Following stringent criticism of the department’s practices from parliamentary committees and in the Windrush review, it is disappointing and frustrating that the Home Office appears to be unable or unwilling to change its behaviour.

Why has the government been so determined to ensure that immigration detention continues during the pandemic? Perhaps someone somewhere worries that to release everybody would be to demonstrate that their detention was never necessary, and that the abolition of immigration detention is in fact possible.

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