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Pic by Darren Johnson, www.idjphotography.com of August 15 2015 demo

Today Theresa May has proposed, in response to the Lords vote in favour of a ban on the detention of pregnant women last week, a 72 hour time limit on the detention of pregnant women. Whilst the move is a step in the right direction, campaigners remain concerned that the Government proposals would mean pregnant women would still be detained without justification at Yarl’s Wood and would face harmful changes to their maternity care.

The public demand for the end of the detention of pregnant women follows a series of exposés and investigations into Yarl’s Wood (where most women in immigration detention are held), which unequivocally proved that the detention of pregnant women is ineffective, unjustified and harmful. None of the investigations have concluded that a time limit is sufficient to mitigate the risk of harm to pregnant women.

In 2013, the charity Medical Justice published a report, Expecting Change, which was the first in depth analysis of the detention of pregnant women under immigration powers in the UK. This highlighted maternity care problems at Yarl’s Wood and revealed for the first time that most pregnant women were not removed or deported, but were released back into the community. The report concluded that pregnant women should not be detained. In 2014 the Independent Monitoring Board for Yard’s Wood reported that for a time midwives had not been allowed to visit Yarl’s Wood. It recommended that pregnant women should not be detained. In August 2015, Her Majesty Chief Inspector of Prisons reported on Yarl’s Wood and found that:

‘Nearly a hundred pregnant women were detained during 2014 and 90% of them were then released. We examined the cases of 12 pregnant women, and the recorded evidence suggested that eight of them should either not have been detained or should have been released earlier.’

In March 2015 the Parliamentary Inquiry into the Use of Immigration Detention made a number of critical recommendations to the Government, including that pregnant women should never be detained for immigration purposes.

In October 2015, in a test case PA v SSHD (here) the Home Office accepted that a pregnant woman had been unlawfully detained, had received substandard medical care and agreed to review the policy on detaining pregnant women.

In January 2016 the Lampard review commissioned by SERCO, the contracted provider for Yarl’s Wood, to investigate the allegations of sexual abuse and mistreatment by it’s own staff reported that the internal policy on management of pregnant women was ‘unsympathetic and over restrictive‘. It reported that ‘many people we interviewed said the detention of pregnant women… was unacceptable’.

In January 2016 the Shaw Report, recommended an absolute ban on the detention of pregnant women. The Shaw report found that although there must be exceptional reasons to justify the detention of pregnant women in reality there was little evidence that this was the case:

‘The vast majority of pregnant detainees in Yarl’s Wood were subsequently released. This raised questions about whether they had been correctly detained in the first place.’

The written statement today is strikingly similar to the current policy; that detention should only be a last resort and only in ‘exceptional circumstances’ (albeit the current policy provides for ‘very exceptional’ circumstances). The time limit proposed does not address that there is often little reason to justify detention in the first place. It is evident that decisions left in the hands of the Home Office are often wrong (see HMCIP finding that the detention of many pregnant women was unjustified).

My colleague, solicitor Janet Farrell, who has acted for a number of pregnant women in unlawful detention challenges states:

‘We have seen time and time again that despite the supposed policy protections in place that should prevent the detention of pregnant women save for in exceptional circumstances, the reality is that they are often detained without notice and on the same footing as other individuals, and without any proper consideration of their particular vulnerability and needs.’

Second, no notice arrests mean that pregnant women are detained without maternity clothing, without midwives’ notes and without the information to provide continuity of maternity care. The Royal College of Midwives has said, in evidence for the PA case that ‘the vast majority of pregnant women who are vulnerable to immigration detention fall within the category of individuals with ‘complex social needs’… and will be therefore in need of higher levels of support.’ Prescribing anti-malarial prophylaxis is complex for pregnant women, and may be contra-indicated. Without notice detention interrupts maternity care and places women in potentially harmful situations.

It seems incongruous that pregnant women are not afforded the same protection as women with children. As part of the family returns process families with children are provided 28 days’ notice for removals with a view to allowing appropriate planning and safeguards. There seems to be a hint of this in the announcement today but further details will need to be provided.

May’s proposal also provides that the detention of pregnant women could be extended beyond the 72 hour limit and refers to the new ‘adults at risk’ (yet to be published) policy. At the moment it is unclear what would warrant an extension of detention but it seems probable this would include the usual reasons that are advanced to justify detention in the first place i.e alleged abscond risk. The “adults at risk” policy should be a move towards stronger protection of vulnerable groups akin to the Shaw recommendations.

Troublingly, from the limited information available at the moment, it appears that ‘compelling immigration reasons’ could overrule ‘vulnerabilities’ and this could water down the current requirement that vulnerable groups, should be detained only in ‘very exceptional circumstances’. It must also be remembered that the policy safeguards for vulnerable groups in detention do not work properly (see the suspension of the Detained Fast track following the Detention Action litigation in 2015 and the Parliamentary Inquiry’s findings that Rule 35 did not work as it should) leading to damaging and unjustified detention. Against this background, there remain deep concerns about detaining pregnant women at all.

Theresa Schleicher, acting director, from Medical Justice said:

‘We are disappointed that the Secretary of State has not accepted the recommendation of the Shaw report and House of Lords’ vote to end the detention of pregnant women, although we are pleased that she recognises that the current policy on detaining pregnant women is inadequate. Allowing detention to continue for longer periods of time with ministerial approval undermines the time limit entirely. Even short periods of detention are distressing for pregnant women and disruptive to maternity. As detention occurs without notice women are not able to prepare and make plans for their maternity care. We call on the Home Office to end the detention of pregnant women.’

Women for Refugee Women which leads the Set Her Free campaign against the detention of women, is calling for people to write to their MPs in support of the Lords’ amendment in favour of an absolute ban. Natasha Walters, Director, Women for Refugee Women said:

‘Women for Refugee Women’s position is that pregnant women should not be held in immigration detention and we are sorry that the Home Secretary is not able to see the importance of protecting pregnant women – and their unborn children – from the trauma of any detention. However, we hope that this announcement of a time limit on the detention of pregnant women may be a first step in moving away from indefinite detention not just for pregnant women but for all. Too many vulnerable people are currently locked up and it is time to find alternatives to this inhumane system.’

The Government appears to have bowed to the overwhelming evidence that detaining pregnant women does not work and is wrong; however the strongest safeguard remains an absolute ban.