Immigration detention is a curious place. Not quite prison, but certainly not freedom; those detained there exist in limbo, denied access to lawyers, deprived from contact with the outside world, with most resigned to their seemingly inevitable departure from the UK. The detention of such detainees is done with little judicial oversight, their treatment explained away on the grounds that they have no right to be here, having entered illegally, claimed asylum falsely, or broken the law, so losing their right to remain.
Given this narrative, it is all too easy for the Home Office to present their deportations as the implementation of natural justice. Why should those who have entered the UK unlawfully, or who have failed to abide by our laws once here, be entitled to more rights than those who slog through the system, dutifully filling in the forms, biding their time, finally earning their reward of British residency? Such rhetoric makes it easy for the government to stoke hostility towards immigrants, fostering a sense of ‘them versus us’.
What this portrayal intentionally conceals is the nuts and bolts of the immigration system. This is not a system underpinned by notions of fairness or equality of arms, but by hostility, designed to overwhelm immigrants suspected of being here unlawfully into conceding defeat and leaving voluntarily, and for those who prove resistant, to deport them by the most efficient means possible. It was this latter course that the government embarked upon yesterday, as it attempted to deport the ‘Jamaica 50’, a group of offenders who had served their sentences, but whom the government now seeks to remove.
According to Downing Street, this was a flight chartered ‘specifically for deporting foreign national offenders’, and only for those convicted of serious offences. This, at first glance, seems perfectly legitimate- why should we give people who choose to come here, and then choose to break the law, the right to remain?
What such banal language conceals, though, is that according to the Home Office, ‘foreign’ includes those who have lived nearly their entire lives in the UK, having been brought here as children. Removing individuals who entered the UK as adults, or even teenagers, is a justifiable course of action – they knew the rules, and the risks that breaking them entailed. For those who arrived as children, however, we are punishing doubly. They have served their sentence, but then face exile, forced to make their way in a country that they have no knowledge of, where their only connection is a flag on their passport.
Even the Home Office recognises, however, that anyone targeted for deportation must have the opportunity to take legal advice, which was the focus of Detention Action’s successful appeal on behalf of the Jamaica 50 yesterday. Home Office policy requires an individual to be given ‘a minimum of five working days notice of removal so that he or she may seek legal advice’, a derisory hurdle that the Home Office still failed to surmount.
According to the judgment of Lady Justice Simler, some individuals, ‘at best’ had been given working Sim cards, others had ‘still not received a functioning Sim card’, and the Home Office had failed to provide any other means by which the individuals could receive legal advice.
While the Court of Appeal’s ruling has been praised as a victory for the rule of law, the actual decision for the appellants was extremely narrow. Had these individuals merely been provided with working phones for five working days, that would have been sufficient for the Home Office to lawfully deport them. There is no obligation on the government to provide those placed in immigration detention with a lawyer- other than a cursory 30 minute consultation- while the evisceration of legal aid means that funding for immigration cases is almost impossible to obtain, with the Ministry of Justice’s budget reduced by nearly 40% since the beginning of austerity government in 2010.
This judgment cannot come as a surprise to the government, with the Supreme Court having given clear warnings on the fundamental nature of access to justice in decisions like Unison, while it equally cannot plead ignorance as to the failings in the immigration detention system. In 2018, the Windrush scandal revealed the devastating consequences that a brutal system, operated with limited judicial oversight, had on those lawfully resident here. People were ripped away from their families and communities despite having every right to be in the country, while others were forced to live for years with uncertainty, some left destitute because they were unable to work and ineligible for benefits, entirely thanks to their uncertain status.
The government promised to learn from this, and if they needed any further impetus, the report by the Parliamentary Home Affairs Committee in March last year should have provided it. This report, on the state of our immigration detention system, condemned the Home Office for taking a ‘shockingly cavalier’ approach, with Yvette Cooper MP, its chair, noting the ‘lack of … proper judicial safeguards’ and emphasising that ‘reform is needed urgently’.
A ‘Lessons Learned’ review on Windrush was supposed to have followed this. It was first listed for publication in March last year, delayed until September, and now has been delayed indefinitely. From the leaks that have emerged, we know that it takes a similar line to the Home Affairs Committee, as well as the suggestion that the policy of deporting criminals brought here as children should be reversed- something that should have been taken on board before the Home Office continued with the departure of the Jamaica 50 flight this morning, albeit with fewer than the original fifty on board.
If the government has learnt anything from this, it is that it can behave with impunity. Yesterday, rather than engaging with the substance of the Court of Appeal’s decision, a Downing Street press secretary said that those challenging the removal were living in a ‘Westminster bubble’ and ‘hadn’t learnt the lessons of the 2019 election’. This is not the language of an executive that believes in dialogue between co-equal branches of government, but one that believes that can it declaim diktats from on high. Those rejoicing in this populist credo should remember that the law protects us all, and then pause for the thought that one day they might want it to protect them.