The Home Office, immigration control and a ‘culture of impunity’

Why do we have double standards between those seeking status and security and those granting it? ‘Mishka’ writes about his own experience.

I had been in Harmondsworth for five months. I had already applied for bail once, without any legal assistance, and had been rejected. I applied again and was given a hearing.

According to Home Office policy, I was supposed to receive my bail summary by 2PM the day before my hearing to give me time to go through it with my solicitor. I was not surprised when it arrived at 7PM. It outlined the Home Office’s argument: that my detention was justified because they had applied for my judicial review to be expedited. I scanned and sent it to my solicitor. I was worried she would not have enough time to read it before the hearing.

• Mishka is a member of the Freed Voices group. They are a collective of experts-by-experience committed to speaking out about the realities of immigration detention in the UK. Between them, they have lost over 20 years to detention in this country.

• Mishka is a pseudonym

• You can read an earlier article by Mishka on the Justice Gap here in the latest  issue of Proof Life in the Justice Gap: Why legal aid matters.

The next morning in court, the Home Office presenting officer went over their arguments, adding defiantly that there were no barriers to my removal. My solicitor seemed calm. She requested the judge to consider two things: firstly, I had an injunction meant that I could not be removed because there was a legal barrier preventing my removal; secondly, that she had contacted the Upper Tribunal that morning and no application to expedite my judicial review had been made by the Home Office. I was released and my interest in tracking Home Office’s duplicity began.

A few years later, I happened to read a 2010 training document on detention, bail, and deportation intended for immigration lawyers. Even today, one paragraph in this document sticks in my mind. It reflects on how ‘it is unfortunate that bail summaries are often woefully inaccurate and/or highly misleading’; and then goes on to give a few examples: one person is falsely accused of failing to report when in fact they haven’t missed a signing, another is still being held because the Home Office have omitted the fact there is no prospect of them getting travel documents.

Honestly, this is nothing new to me because, both in and out of detention, I have heard of many cases where bail summaries have included misleading information, or where Home Office presenting officers have displayed unprincipled conduct during hearings.

What struck me was that this document was from 2010, highlighting instances of negligence around that time but also earlier. This suggests that the practice of Home Office caseworkers and Presenting Officers using misleading or inaccurate information to oppose people’s release from detention on bail has continued unchecked for years. And clearly continues to do so.

Only last year, a report produced by the Bar Council declared that both lawyers and immigration judges found misleading statements littered throughout a sample of bail summaries. As one judge put it, many of them contained statements that amounted to ‘elliptical nonsense’. I am sure not all Home Office caseworkers and presenting officers behave in this manner, but it it appears to be a behaviour that has become normalised to the point that it is rarely brought to the public’s attention. I have rarely, if ever, seen news articles about this. What feels important is determining how and why Home Office staff has been able to carry on with this unethical practice for many years without being held accountable.

What does it tell us about the culture of impunity protecting those in working in the business of ‘immigration control’? What are the motives or pressures that encourage Home Office staff to behave in this way? What happens when such malpractice becomes part of an institution’s DNA?

We are living in an era where anyone living under the authority of the Home Office (basically, anyone subjected to immigration control) can be penalised for either the most minuscule or the most genuine mistake. Any such errors immediately render them criminals, or re-cast them as bogus or frauds. Whether it be someone claiming asylum, or obtaining a spouse/marriage visa, or entering as a high skilled migrant, one of the central obligations of the claimant is that they should be absolutely credible, completely genuine and ‘compliant’ throughout. Why is this obligation not applicable to Home Office caseworkers and presenting officers as well? Why do we have double standards between those seeking status and security and those granting it?

Some bail applicants are lucky enough to have proper legal representation in order to counter these false contentions during bail hearings. Many do not. A survey carried out by Bail for Immigration Detainees last year found that almost one in three detainees surveyed did not have any legal representation at all while they were in detention. Many of this group do not read or speak good English. How could these people effectively counter inaccurate or misleading facts peddled by Presenting Officers without legal assistance, let alone without the language of the courtroom available to them? They don’t stand a chance.

In those cases where lawyers do successfully challenge false or misleading information in bail summaries, the best-case scenario – from my experience – is that the presenting officer might concede and leave the courtroom. Great. But then what? There is no punishment for their actions. They are not suspended for their inaccuracies. I am not sure they’d even get a verbal slap-on-the-wrist on their way out. More to the point, there is nothing stopping them doing the same thing again with another bail applicant. Of course, as I have written about before, this lack of accountability is replicated across the detention estate, and these Home Office staff members know it.

Every now and again, the Home Office tries to change how this message is relayed. It is usually whenever they have been put under pressure. More recently, the Windrush scandal has led to the home secretary, Sajid Javid promising everyone he plans to oversee a new and reformed Home Office. A quick look through some bail summaries should be enough to remind people not to take these kinds of statements at face value. Just as my solicitor was in regards to the lies presented at my own bail hearing, we must be vigilant, we must scrutinise, we must hold them to account.

Published June 28, 2018