WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 01 2023
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Access to justice in immigration detention

Access to justice in immigration detention

Life in the justice gap: illustration from Proof magazine, issue 3. Simon Pemberton

“anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”. ICCPR [1966] (Article 9(4))

Governments cannot simply lock people up and throw away the key – people who are being deprived of their liberty must be able to access the courts and to do that they must have access to legal advice and representation. If it is the government depriving people of their liberty then it is the government that must make provision for accessing justice. In immigration detention, that provision is desperately failing. New research published today brings together the outcomes of 42 interviews with people in immigration detention. Those people were in different situations – some had made asylum claims and were awaiting a decision or an appeal, some were people who grew up in the UK and were facing deportation, some were parents separated from their children by immigration detention. All were being deprived of their liberty in different immigration removal centres and in desperate need of legal advice.

Just 43% of people have legal representation in their immigration case. This is the same figure as for May 2013, and across 19 Legal Advice Surveys the figure has never been lower. It is also significantly lower than in previous years – in 2019 the figures were at 64% (Spring) and 59% (Autumn).

In fact, Immigration advice for people in detention has never recovered from the deep cuts to immigration legal aid in 2013. Before the Legal Aid cuts came into force, 79% of people had legal representation, but since then there has only been one BID legal advice survey where the number of people with a legal representative was above 60%.

It is a bleak time for people to be facing the immigration system unrepresented. Immigration law has never been as harsh or punitive than it already is (although recent announcements by Rishi Sunak suggest more draconian legislation could be around the corner). The Nationality and Borders Act 2022 criminalised asylum-seekers; introduced additional complexity and onerous procedural requirements; and made it harder for people in detention to be granted bail and easier for the Home Office to refuse, detain and remove.

Out of 24 people who had previously been in prison, only 2 people received legal advice from an immigration solicitor while held there. This reflects the results of our recent prison legal advice survey which found that people detained in prisons under immigration powers face immense and sometimes insurmountable barriers to accessing legal advice – with 70% of participants without a legal representative for their immigration case.

Prisons are already entirely unsuitable for administrative immigration detention, a fact that has been recognised by international human rights bodies. People in prisons are even more isolated and vulnerable to denial of basic rights than those in Immigration Removal Centres, without no mobile phones and significantly stricter lock-up regimes equivalent to time-serving prisoners. Their status as a forgotten group is most powerfully symbolised by the fact that even the Home Office rarely bothers to visit or engage with those people it detains scattered across the prison estate, for which they have been chastised by several key stakeholders including the Independent Monitoring Boards and Her Majesty’s Inspector of Prisons.

More than a third of interviewees told us that they were not aware of how to access free legal advice in the removal centre, and a fifth told us that they had never had a lawyer while in immigration

detention. Those figures are unacceptably high. Meanwhile, although several interviewees told us that money was part of the reason they didn’t have a lawyer, not a single person we spoke to had been told about the Exceptional Case Funding scheme (for accessing legal aid in cases that are out of scope).

For those who were able to speak to a lawyer, several people said the advice they received was unhelpful, or generic. Others were unable to get a lawyer to take on their case – one man we spoke to had spoken with 8 different solicitors and not a single one had taken on their case. This is a reflection of the variable quality of advice delivered under the detention surgery scheme, and the lack of capacity in a sector that has been on its knees since the 2013 legal aid cuts.

People who used the internet to research their case said that websites had been blocked, including websites that would potentially have been helpful in preparing their immigration case. Crucially, social media continues to be banned across the immigration detention estate. This exacerbates the isolation that is intrinsic to immigration detention, by making it more difficult for people to remain part of their networks outside of the detention centre, while also interfering with people’s ability to prepare evidence for their case. As our social lives increasingly move online, this restriction is becoming ever more regressive and draconian. The government has never bothered to justify its necessity.

We are fundamentally opposed to the practice of locking people up for immigration reasons. There is no good ethical, practical or financial justification. But even those who do not share our position would agree that if the state locks you up, it must at the very least provide access to legal advice and representation. That is a fundamental pillar of the rule of law, and particularly vital in the immigration context, where the law is so complex and the stakes are so high when detention, normally used for punitive reasons, is used for purely administrative purposes. Sadly, our research shows that even on this basic measure the system is badly failing people in immigration detention.

To support BID’s campaigning work, use their simple tool to write to your MP, to ask them to oppose the building of two new detention centres.