Oral evidence: Immigration detention, HC 1484Wednesday 31 October

Oral evidence, 31 October 2018.

Chair

Thank you very much indeed for listening so patiently to the first panel of our evidence session.

Fiona Bruce

Good afternoon and thank you for coming today. You will have heard the evidence of our previous panel, with particular reference to access to legal advice and representation, which was a thread through that evidence. Do you think that detainees have adequate access to such advice?

Hindpal Singh Bhui

Good afternoon. I am the inspection team leader at the Inspectorate of Prisons. I spend most of my time in prisons, but I lead on all the immigration detention work. There is access to legal advice in immigration removal centres, which is in excess of what immigration detainees are able to obtain in prisons. I think Celia mentioned earlier on that it is really only a very short, sharp period of advice. It is half an hour. It could take a week or two weeks to get on to the advice surgery. The real issue is that, even though you can get a short period of advice, representation, which is very important for detainees, will probably not follow, because of the cuts in legal aid. The organisations that used to provide free legal advice and representation by and large no longer exist, because of the lack of funding, so it is more difficult. There are differences up and down the country, though. If you look at the centre at Dungavel in Scotland, for example, you can see that there are different rules in Scotland, so the amount of legal advice available is greater. That seems to have an effect on every other aspect of the detention experience. We often find that detainees in Dungavel are less distressed than detainees we see in other parts of the country. It is complex, but at least one of the reasons is because they have very good access to legal advice up there.

Fiona Bruce

Can I unpack this for a moment? They have a right to a 30-minute meeting, presumably with an immigration solicitor who is working on a legal aid basis. Perhaps I should declare my own background as a community lawyer. That is just the meeting with the solicitor, is it not?

Hindpal Singh Bhui

Yes.

Fiona Bruce

Are you saying, then, that many of them do not have an opportunity for further legal representation at a later stage?

Hindpal Singh Bhui

That is what I am saying, yes.

Fiona Bruce

Resources are not there, because there are not the solicitors who can come forward to help them.

Hindpal Singh Bhui

Yes.

Fiona Bruce

Secondly, you said that there was a difference between the rights and treatments of detainees in immigration removal centres and detainees held in prisons. I would be grateful if you could clarify that difference for us.

Hindpal Singh Bhui

The Home Office funds legal aid surgeries in immigration detention, but it does not fund those surgeries in prisons. About 400 detainees are held in prisons, and they do not have that free access to legal advice. A foreign national prison with a legal surgery was set up fairly recently, but they are not, by and large, detainees; they are serving foreign national prisoners. Generally, prisoners have less access.

Fiona Bruce

Perhaps I can open up comments to the panel. Has any survey been done on the adequacy and extent of legal advice for detainees across both centres?

Dame Anne Owers

I am not sure I can assist you on a survey, but it may be worth the Committee recognising that, in the immigration removal centres where this advice is available, it used to be provided by two or three solicitors firms. Our independent monitoring board at tells us that there are now 40 or 50 solicitors’ firms on the list, which may be there for only one week in a year because they change around. In another centre, there are now 25. There is some concern about the spreading around among so many different firms. That is a very new thing, I think with new contracts. In the short-term holding facilities, where people may be held when they first arrive, there is no access to legal advice, and legal advisers cannot get airside, so there is no possibility of getting advice at that point. There are some concerns about the way that legal advice is trending, even though, as you say, it is only 30 minutes’ advice. It is not representation.

Fiona Bruce

That barely gives one time to acquaint oneself with the circumstances of the individual. Are you saying that there being only 40 or 50 firms means that there is perhaps a lower level of specialist expertise?

Dame Anne Owers

We could not possibly comment on that, but it may be worth inquiring into further.

Lord Trimble

My question goes back to the detention of vulnerable people again, in this respect. There are horror stories of people who have died in custody. Policies have also been introduced recently. Have they been effective in preventing the detention of individuals who clearly have complex needs?

Dame Anne Owers

I think we would say that they have not been entirely. Jane, I think you have some examples of the complex needs we have come across.

Jane Leech

Yes. Thank you, Anne. I am on the independent monitoring board at Yarl’s Wood immigration removal centre. In the last year, we have seen some very vulnerable people there. About a year ago I saw a Zimbabwean woman who was in her room. She would not sleep on her bed. She was too scared. She had put her mattress on the floor. She would not put any clothes on, because she said they were poisoned. She was in a very, very distressed state. She imagined that she could see the men who took away her husband and who put her into a mental hospital in Zimbabwe. She was released, I believe, a few days after I visited her. We have also seen an example of a young man who was 22, I believe. He was there in the family unit at Yarl’s Wood, which is not for the detention of children; it is for the detention of family groups, so children over 18. This young man, who had severe learning difficulties and epilepsy, was brought into detention in April this year and stayed a week. He reacted very badly to his detention, as you might imagine, with serious panic attacks. After a week, he and his family were released. We are still seeing people with difficulties like that.

Hindpal Singh Bhui

I would agree. A number of people are still slipping through the net. The horror stories you referred to probably include the case of the 84 year-old man who was detained in Harmondsworth some years ago. It was a disgraceful case, and he died in handcuffs eventually. We have conducted a couple of recent inspections where we have seen people we consider to be very vulnerable. At one recent inspection there was an elderly disabled couple. One of them was in a wheelchair. The other one had other concerns. Immediately on arrival in the centre they were assessed by healthcare to be unfit for detention and they were put at level 3 of the at-risk policy. They remained in detention for five days before being released. They should never have been there in the first place. We found other cases. There is one case of a man in a wheelchair who set fire to himself. He was very disturbed and should clearly not have been in detention for any length of time. In the same centre, we also came across a blind detainee who was on an ACDT because of risk of self-harm. These men both spent more than a year in detention. There are very definitely some very vulnerable people who are still in detention, and the process does not always work effectively at the front end. The gatekeepers who were mentioned earlier do not always manage to catch the right people. The mechanisms that are meant to safeguard people in detention are not always as effective as they should be. I imagine we will talk about rule 35 later, but that is something on which we have some evidence, too.

Dame Anne Owers

Very often, these very vulnerable people, particularly those who are mentally ill, end up in the equivalent of the segregation unit. One of our boards found that 20% of those in the segregation unit were people with mental illness. It is not just the fact that they are in detention but that they are in the deepest form of detention.

Baroness Lawrence of Clarendon

I wanted to ask about the monitoring of these individuals, especially the one you talked about who set fire to himself. Who monitors these individuals once they are in the detention centre? Clearly, they are vulnerable, so where is the monitoring of that?

Hindpal Singh Bhui

If you mean who has responsibility for looking after their welfare, that falls very squarely to the management of the centre. There are healthcare services in the centre. There is a manager who has a duty of care. The staff all have a duty of care. If such vulnerabilities arise and people know about them, they should be reported very quickly to the Home Office. The Home Office also has an on-site presence, so there should be staff who become aware of those people very quickly and they should be assessed for their suitability for detention. If they are found to be unfit for detention, they should be released.

Baroness Lawrence of Clarendon

If an individual had been there for a year and more, you would have thought that by then there would have been some assessment of their vulnerability, rather than them being left.

Hindpal Singh Bhui

My inference was that the system had failed in those cases.

Dame Anne Owers

Either they have been assessed and no one has taken appropriate action, or they have not been properly assessed. Either or both of those things can happen.

Baroness Lawrence of Clarendon

That does not help those individuals.

Ms Karen Buck

What steps should be taken in the procedure to make sure that those assessments take place?

Dame Anne Owers

It would help to have people actually in the centres. The gatekeeping facility, which is in Croydon, never sees the people involved. Bringing that decision-making as close as possible to the people who are vulnerable would help. You cannot do it on paper. It is much more difficult to do that. It is also about what healthcare says. For the 22 year-old who Jane mentioned, healthcare knew immediately that this young man and his family should not be in detention. Immediate action should have followed. Of course, he should never have been detained in the first place.

Hindpal Singh Bhui

Part of the problem is that the safeguards that are in place consistently do not work as effectively as they should do. We mentioned the article 3 cases earlier on. In one case, someone was subject to monthly progress reports. Mental health issues were not taken sufficiently into account. Doctors’ views were not taken sufficiently into account. The rule 35 reports that were put in were not good enough and were not responded to effectively enough. That led to an escalation of a whole range of issues. Someone was presenting with mental health problems. The mental deterioration became acute and was more rapid. That person started to self-harm and ended up being restrained to prevent self-harm. Use of force came into play and that person ended up, as Anne mentioned, in separation. If those sorts of things are not nipped in the bud early, they can lead to an escalating problem. I mentioned earlier the responsibility of all the players in immigration detention. It is very important to make sure that managers, healthcare staff and the Home Office all work together to identify the most vulnerable people, to do quick assessments and then to go over the details very thoroughly so as not to miss out important things such as mental health issues and the opinions of doctors.

Baroness Lawrence of Clarendon

On the question of accountability, if all the staff are supposed to have responsibility for the detainee, who holds those staff to account where vulnerable adults are concerned and where things have gone wrong? Where is the accountability in the detention centre? Is there any?

Jane Leech

The Home Office has contract monitors in place who are supposed to monitor the execution of the contract. They will have a degree of accountability over the staff and the officers. Ultimately, there is, of course, the legal one. If the detainee has people supporting them, which is often the problem, these cases can be brought before the courts, but the ones that are brought before the courts are very few.

Baroness Lawrence of Clarendon

They are quite vulnerable, so they have no idea of the process and the things they need to do. For the ones who have died, there is no way in which any legal remedy can be brought for them, which seems quite a distressing thing to hear.

Hindpal Singh Bhui

An obvious answer is that part of our role is also to hold them accountable.

Baroness Lawrence of Clarendon

We should hold you accountable.

Hindpal Singh Bhui

You should also certainly point the finger at us. I totally accept that. As for the Inspectorate of Prisons, we do in‑depth inspections every two to three years. Inevitably, they are snapshots, but they go into some detail and find the kinds of cases I mentioned earlier. It is important that when we make recommendations they implement them. Part of the problem has been that we have found some concerns, we have highlighted them, and we expect centres then to implement our recommendations. In our last annual report, we reported that only 35% or 36% of recommendations we made were fully implemented. There is a problem there.

Baroness Lawrence of Clarendon

Would you say that there is probably overcrowding or shortage of staff in these centres? Does any of that have anything to do with it?

Hindpal Singh Bhui

There is certainly no overcrowding. The number of people in detention has gone down quite markedly recently. In fact, the last centre I went to had only 80 or 90 people in it, with a capacity of well over 200.

Dame Anne Owers

Could I make a slightly broader point? You asked your last witnesses quite a lot about judicial oversight. It will perhaps not be surprising to hear from someone who has been doing oversight for rather a long time that I think that oversight, and judicial oversight in this case, makes for better decision-making. The fact that you have to be accountable to someone for the decisions you make makes for better decisions. The backdrop to what we are talking about is the fact that, of those who have been detained, in the most recent year only 45% have been removed from the UK from detention. Only 36% of women in Yarl’s Wood were removed from detention. People are being detained who are then not removed, which indicates that the decision-making, as your previous witnesses said, is not as focused on the purpose of detention as it ought to be, and it allows for detaining and re-detaining people who in the end are not removed from those centres. There is a point there. It is also interesting to reflect upon the fact, as Hindpal said, that the numbers in detention over the last year have dropped quite dramatically. There were 36% fewer people in detention in June this year than there were in June last year. Of course, that has coincided with a great focus on detention because of the Windrush issue. The number of people in the Windrush generation who were detained is thankfully very, very few, but it focused on decision-making about detention, and the number of people in detention dropped. It is now rising again, but it dropped significantly. There is an awful lot of administrative discretion in the system, which would benefit from more oversight.

Chair

Are you saying that in a more or less arbitrary system that gives a bit of a sense that people are looking at it, so it profoundly affects the figures, but for a short period of time, and then it wears off?

Dame Anne Owers

It can do. I am just making the general point that there is an awful lot of discretion in those decisions. I would not go so far as to say that it is arbitrary, but there is an awful lot of discretion.

Chair

You think the Windrush focus is not a coincidence.

Dame Anne Owers

I would suggest that might be a reason. I do not know. I can only speculate, but it is noticeable.

Chair

It is a bit of a coincidence otherwise.

Dame Anne Owers

Yes, exactly.

Chair

Who should make the decision? If you think there are people in there who should not be in there, should the Home Office decision-making be improved? Should they lose the right to decide, perhaps after 48 hours, so they get to choose to detain for the first 48 hours and thereafter the decision belongs to somebody else?

Dame Anne Owers

We do not have a concluded position on that, other than to say that there is a need for more judicial oversight. I would point out to the Committee that legislation was passed in Parliament in 1999, which I remember because I was doing work on it at that stage, to say that within eight days a detainee had to be brought before a court, and at that point there was a general right to bail, unless the court had substantial evidence that the person might abscond, commit an offence or whatever. It was a very, very powerful piece of legislation. Unfortunately, it was enacted, never implemented, and since then it has been abolished. We have had parliamentary attempts to make sure there was really quite strong judicial scrutiny and not just a presumption but a right to be released, a right to liberty, unless there were substantial reasons for someone not being at liberty. I recall that as something that shows that at one point Parliament thought this was the right thing to do.

Chair

There is the difference, is there not, between judicial oversight and actual judicial decision-making?

Dame Anne Owers

There is.

Chair

I think we are talking about judicial decision-making, are we not, in individual cases?

Dame Anne Owers

The initial decision to detain would have been taken by the Home Office, but then the court would have to decide on not just a presumption but a right to be released.

Chair

The onus was different. The burden of proof was different.

Dame Anne Owers

Yes. We would make the point that some of these decisions about whether to detain, for example whether someone has been tortured, are very complex, legally and factually, and deserve to be pulled out in front of a judicial authority. They are very complex decisions to make.

Chair

Should there be a finite time? Do you think the question of the indefinite nature of the detention affects the human rights of people in the system? If so, should there be a finite period beyond which the Home Office is not allowed to detain somebody? If so, how long should it be?

Hindpal Singh Bhui

I absolutely believe that, and that is the position of the Inspectorate of Prisons. The question of a time limit has come up many times over past years. We do not have a particular position on how long that time should be, but whatever limit is decided on should take account of the evidence of the impact on detainees of prolonged detention, such as: how quickly does mental health deteriorate, how much time has to elapse before there is no reasonable prospect of someone being removed from the country? All those sorts of considerations need to be taken into account before a time limit is decided. Clearly, having no time limit is very punishing and very distressing for detainees. One of the most common things we hear from people we interview in detention is that the very fact that they do not know when they are going to be released is very stressful. That has a link to mental health problems. The longer that continues, the worse it becomes. There definitely should be a time limit, but we have no position on how long.

Chair

What about you, Jane? What is your observation on the impact or otherwise of the nature of the detention being indefinite?

Jane Leech

It has a very profound impact. I know that all my colleagues at other removal centres certainly agree with that. Speaking about the women I have met at Yarl’s Wood, it includes low-level degrees of distress and anxiety, and this is not only a mental health thing. Of course, these stresses affect their physical health. They are not able to cook for themselves, other than in the cultural kitchen. They might choose what they want to eat perhaps once a week, but otherwise they have to have the meals they are given by the centre. All those factors combine with the uncertainty of their immigration case—do not forget, they might be uncertain about what the outcome will be if they have appeals or judicial reviews pending, so they do not know where they might end up—and the fact that they do not know how long they are going to be there. Yes, it is very damaging.

Chair

Do you have an idea about how long the Home Office should be allowed to keep people, after which its time should be up and it should release them?

Jane Leech

We do not have a definite idea of the finite time, because there is also a concern about the possibility of very rapid removals and deportations in that time if you had too short a period. We have talked about the problems with legal representation. There is a danger that people could be removed before they have had time to sort out any representation or challenges.

Dame Anne Owers

As IMBs, we have not taken a position on a length of time, but we very strongly believe there should be a finite length of time. The indefinite nature of it makes for a huge problem.

Chair

You think that a time limit without the underpinning legal rights and challenge could mean that people were deported before the Home Office had properly considered their case.

Jane Leech

There is a risk that that might be the case.

Dame Anne Owers

There is also a risk of re-detention. Your previous witnesses talked about a cumulative time limit, but in certain European countries people were released at the time limit and re-detained afterwards. That kind of cat and mouse approach is clearly not something you would want to happen.

Chair

There could be a provision whereby the clock would start running again, but only if there was new evidence, or some such provision.

Dame Anne Owers

Exactly, such as it went to a court.

Jane Leech

It might be a flight date.

Baroness Lawrence of Clarendon

In part of our notes it says that the UK is the only European country that does not have a time limit, and that the EU returns directive has set a time of six months. I do not know if you all agree. Obviously you cannot agree with the fact that the UK does not have a time limit, but the EU directive has talked about a time of up to six months.

Dame Anne Owers

That is correct. I would be quite worried about something that, as your previous witnesses said, assumed that you could carry on to six months, given that most people, as you said, are released a lot earlier than that. At all points, there would need to be justification for detention and continued detention.

Hindpal Singh Bhui

It is probably worth bearing in mind that the EU returns directive has come in for a lot of criticism in those countries where it is applied. It is not just six months. It can be extended to 18 months, and that is a very, very long time to hold someone in detention.

Baroness Lawrence of Clarendon

Would you give a maximum time of what you think a detention should be? Are there any views on that?

Hindpal Singh Bhui

The Inspectorate of Prisons has no position on that. As I said before, we think that the impact on detainees of being held for extended periods should be taken into account. When a time limit is decided on, it was mentioned earlier that the family returns process is one from which we could learn, and I agree. Children and families are only held for a maximum of 72 hours, extendable to a week. It is an absolute maximum, so they cannot be detained for any longer than that, and it seems to work. Lots of people are removed without using detention, and very few families are taken into detention now through the family returns process. It is preceded by a very long process of support, assistance to families, persuasion. It seems to be very different from the process that precedes detaining adults from the community. When we went to the family detention place, which was earlier this year, not many families were detained. Those who were there said, surprisingly, that they would rather be detained in the conditions they were in, which were very open, very decent, welfare orientated—a children’s charity was involved in helping them—and have that level of support, if they had to be removed from the country, than not have it. It was very unusual to hear that. If that kind of process preceded the decision to remove someone from the country, we would be looking at a period of detention that would not need to be very long at all. Maybe it would not be as short as seven days, but it would still not be very long.

Chair

Thank you very much indeed, not only for the clarity of your evidence to us but for the good work you do in this very important area of human rights and accountability. Thank you very much. Oral evidence: Immigration detention 2