The Catch 22 trapping people in immigration detention

The Catch 22 trapping people in immigration detention

Barbed wire, Flickr under creative comms licence, Terry Freeman

A detention centre is no home, but for many detainees that is essentially what it has become. Changes last year to the rules governing post-release accommodation mean that many migrants are stuck in immigration removal centres after being granted bail solely because they have no home to be released to. Tara Brian reports

Prior to 2018, detainees without an address could apply for accommodation from the Home Office. But in January last year, this system was replaced with new rules that permit only a small number of people to qualify for accommodation under ‘exceptional circumstances’.

Other detainees are expected to apply for existing accommodation support designed for asylum seekers in the community, but several factors make this impossible to access from within detention. Coupled with a disconnect between this policy and that of the independent tribunal that grants immigration bail, many detainees are trapped in a Catch 22.

In order to be released, they first need an address. ‘It’s impossible to get the accommodation until you’re out, but you can’t get out without accommodation,’ explains Adam Spray, legal manager at the charity Bail for Immigration Detainees (BID). ‘Already a problematic area, post-detention accommodation is now a crisis situation,’ BID wrote in a briefing on the new system last July.

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Bail for Immigration Detainees is located on a quiet residential street in North London. Last year it assisted nearly 6,000 people with free legal advice, information and representation. Among the community of immigration lawyers grappling with the Home Office to clarify the new bail accommodation system, this small legal charity takes the lead—immigration bail is what it does.

Despite a year of hassling the Home Office to lay out a clear process for obtaining accommodation support, the charity is still resorting to trial-and-error methods to help their clients, piecing together the most effective way through a tangle of conflicting bureaucracies.

‘It’s just a total mess,’ comments Rudy Schulkind, the coordinator of policy and research at the charity. ‘It’s inefficient, it’s clumsy and it leads to people spending longer in detention, which is not in anyone’s interest.’

Schulkind submitted a Freedom of Information request that showed 2,824 detainees were granted accommodation support in 2017 under the old system of Section 4(1)(c) of the 1999 Immigration and Asylum Act. As of September 2018, just 51 people had been granted support under the new Schedule 10 of the 2016 Immigration Act since it came into effect in January of that year.And of those, only 16 had actually been released to the addresses.

So, what is happening to all these people?

Spray reckons many of BID’s clients spend three to six months longer in detention because of accommodation issues. One client has been waiting since August last year. Another has been in detention for more than 550 days waiting on an address.

Not only is this time taken from people’s lives, but it carries a hefty price tag for the UK taxpayer. The cost of detaining one person for one day is £87.71.

Meanwhile, the Home Office has been shelling out millions in damages payments for unlawful detention, due to delays in sourcing accommodation and for a range of other reasons. Between 2012 and 2017, the Secretary of State for the Home Department paid £21 million in damages to more than 850 claimants. And this does not include the likely millions spent each year on legal aid fees to bring the claims in the first place.

In the past two years alone, 1,272 claims of unlawful detention were brought before the High Court, a Freedom of Information request revealed.

According to Home Office policy, UK law and international law, immigration detention should be used only in exceptional circumstances and primarily when deportation is imminent.

Yet, the UK has one of the largest detention estates in Europe and is the only country in the EU with a policy of indefinite detention. Of the 25,487 people who left UK immigration removal centres in 2018, only 44 per cent were actually removed from the country. While most spend less than a month in detention, 1,048 had been held for over six months.

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The apparent aim of the new bail accommodation system is rather than have a targeted accommodation mechanism for detainees, to direct the majority through existing support available to asylum seekers and failed asylum seekers in the community at large – Sections 95 and 4(2) of the Immigration and Asylum Act 1999.

Like applicants in the community, detainees must submit an ASF1 application through the charity Migrant Help, that is then considered by the Home Office. However, no modifications were made to the process to make it compatible with bail and detention.

As such, it is virtually impossible to access this support from within detention.

Perhaps the most illogical barrier is the destitution test.

In order to qualify for support, applicants must prove they are destitute or will become so within 14 days. But detainees are not considered destitute, nor do they know when they’ll be released.

In a typical response to an application for accommodation, the Home Office stated in February: ‘I note that you are in an Immigration Removal Centre. I am therefore satisfied that your essential living needs, including accommodation, are being met in full. Your application is therefore refused.’

‘It’s quite remarkable really the things that they come up with,’ comments Schulkind who sees these decisions regularly. ‘Basically, they’re saying that detention is a form of accommodation and it’s not; detention is incarceration, it’s not accommodation.’

In fact, many detainees have described detention as worse than prison.

Another obstacle is the sheer complexity of the process.

What was previously a simple two-page form is now 35, requiring the applicant to make legal arguments and submit a ream of documentation.

‘The process is confusing and inaccessible,’ reckons Maddy Evans who coordinates SOAS Detainee Support. ‘It’s particularly difficult for the increasing number of people that we support who do not have adequate legal representation, and for those who face a language barrier.’

Migrant Help, the charity contracted by the Home Office to assist with asylum support applications said in an email: ‘We treat all our clients in the same way, whether they are in detention or not. Being in detention does not exclude asylum seekers from submitting an application for support.’

Communications manager Jitka Minxova tells me they do not record if someone contacting them for assistance is in detention or not because it ‘really makes no difference to us’.

Meanwhile, Schedule 10 accommodation for detainees who have never claimed asylum is restricted to those who meet exceptional circumstances – mainly high-risk offenders – and has no application process at all. The High Court recently found the system unworkable.

Miranda Butler, a barrister at Garden Court Chambers, likens the new bail accommodation system to a creating a healthcare policy without building any hospitals. ‘If you have a policy that people need to implement in the real world, it needs to be accessible, you need to have mechanisms whereby it works… . Here, we have a policy about the availability of bail but no meaningful mechanism for people to access it.’

In response to a request for explanation, the Home Office states:

‘We are aware of a small number of individuals who have been granted bail in principle and are waiting for accommodation to be allocated. These are all complex cases where the person has specific accommodation needs and restrictions that must be met before they can be released safely from detention. We are working closely with the providers, police and HM Prison and Probation Service to find suitable accommodation for these people. 

We will always provide accommodation to those released on bail if they would otherwise be destitute and there is a legal or practical barrier that prevents them from leaving the UK.’

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Franck Magennis, also a barrister at Garden Court Chambers, is incredulous at the treatment of one client he had represented recently. The person had been in detention for 19 months despite being a victim of torture.

‘The Home Office had the gall in the hearing to argue that my client’s interests were best served by continued detention… . And this was someone who had attempted to kill themselves whilst in detention.’

Magennis prevailed and got his client bail in principle—meaning his release was judicially approved on the condition he found a residence address. While a victory, there is likely little cause for celebration.

‘This exact rigmarole happened six months previously,’ reckons Magennis. ‘He was granted bail in principle, the Home Office failed to get him an address, and he remained in detention.’

Although Home Office policy no longer requires a residence condition for a detainee to be released, in practice immigration judges virtually never grant bail to someone without a stable address.

‘It never happens,’ says Spray. ‘That’s the reality.’

The approach BID has arrived at is a drawn-out one, involving repeated applications for bail in principle – which lapse after 14 days, followed by applications for accommodation that invariably fail.

Often, Spray reports, their only resort is to refer cases for judicial review on the basis that continued detention is unlawful. In the first two months of 2019 alone, they have already referred 34 cases. This process will eventually result in accommodation being provided, it is not only inefficient, but essentially inaccessible to detainees without representation.

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A 2018 guide for First-tier Tribunal judges on changes to the bail system opens with a reminder of the primary right to liberty: ‘Liberty is a fundamental right of all people and can only be restricted if there is no reasonable alternative. This principle applies to all people in the UK, including foreign nationals.’

The reality is that repeated administrative roadblocks often get in the way.

‘It’s pretty absurd because the presumption is supposed to be in favour of liberty but what happens in practice is that judges and the Home Office quibble over minor details and use that as an excuse for not granting bail,’ reckons Magennis. ‘It’s all completely hectic, it’s a bureaucratic nightmare.’

One of the ramifications of the new bail accommodation system has been to weaken judicial oversight of detention.

Even if a judge grants bail in principle, Schulkind from BID explains that the tribunal can’t compel the Home Office to provide an address. ‘As such they can’t actually be the final arbiter of release. Under the new regime, that falls at the feet of the Home Office solely, for people without an address.’

‘You’ll potentially have a judge say: “I can’t decide on this person’s liberty because one of the parties is refusing to give them accommodation.” And that’s obviously mad. It basically makes the Secretary of State a judge in their own case,’ echoes Butler.

On top of this, there are limited appeal rights over the bail decisions of First-tier Tribunal judges. A new application must simply be made in 28 days.

Magennis says this reflects a key difference between immigration bail and criminal bail, which is a highly robust and regulated jurisdiction. If there is a problem with a probation address, he said, it must be dealt with rapidly or a judge will grant bail anyway.

‘Compare that with the immigration bail jurisdiction where it’s like “Oh there’s a problem with your address? Yeah sorry, come back in 28 days.” That’s a month of someone’s life.’

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One consequence of the new bail accommodation policy is an increasing number of detainees released by the Home Office to unstable addresses or on to the streets.

Detainees can get bail from either the First-tier Tribunal or directly from the Secretary of State. While the tribunal is very cautious to release people on to the streets—despite the lack of a mandatory residence condition, the Home Office appears much less so, often releasing detainees unpredictably to addresses that may or may not be a place they can actually live such as a former friend’s flat of even a correspondence address.

Measures introduced in 2016 – recently ruled discriminatory by the High Court – making it a criminal offence for landlords to rent property to immigrants without the “right to rent”, make the situation of irregular migrants and failed asylum seekers close to impossible.

As Miranda Butler puts it: ‘If you are someone in immigration detention what are your options? If you don’t have family you can go stay with, you can’t rent, you can’t have a bank account with which you could pay for anything, you can’t get Home Office accommodation unless you’re in these exceptional circumstances. So, what do you do? You stay in detention. Or if you are let out somehow…where do you think you’re going to go?’