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Immigration Detention: Prison or Protection

By Katherine Worthington, Human Rights Policy Intern, JUSTICE


"I spent many years in prison being tortured. I was forced to flee here. Shouldn't a human being have a square foot of earth to live on in peace? I don't know what I have to do anymore for my situation to be resolved so I can live like a human being."
Abas Amini

The language of human rights is gradually reaching the darkest and most uncomfortable corners of the establishment. In 1995, the UK was criticised by the UN for the "high number of suicides among prisoners, especially among juveniles" . Long awaited result: the Joint Committee on Human Rights has recently instigated an inquiry into human rights and deaths in custody. Given the dramatic increases in numbers of deaths in custody in recent years , the inquiry is clearly to be welcomed. However, it is not just statistics suggestive of a worrying trend in custodial establishments which demand attention. Any such justification merely scratches the surface. It is becoming increasingly clear that ECHR jurisprudence and reports on detention conditions have driven the UK to re-evaluate treatment of those in custody more generally. Their influence represents a challenge to the status quo in this area. It is vital that the Joint Committee retain this two-pronged approach. And so, it seems, they will do. The call for evidence, issued 17 July 2003, expresses a commitment to assessing substantive and procedural human rights. The inquiry will look separately at preventative measures required in the management of prisons and detention centres, as well as recommendations for improvement to the investigations that follows suspicious deaths.

The Joint Committee must be congratulated in a second instance for the wide interpretation accorded to 'custody'. The inquiry will consider prisons, police detention, special hospitals, immigration detention, as well as other deaths in police custody. In this article, we draw attention to one of the bleakest and least charted of corners in the custodial establishment: immigration detention. Whilst all deaths in custody are equally deserving of thorough investigation, the problems experienced by immigrants in detention often represent the extreme end of more general prison concerns. Their particular experiences is all the more important in a system which allows extended detention for purely administrative reasons. It is hoped that the inquiry will succeed in pointing up the extent of the positive obligation on the State to ensure that the right to life of those in its care "shall be protected by law" .

The development of Human Rights relating to detention

The Human Rights Act encouraged a flurry of activity in the area of prison rights. Whitty, Murphy and Livingstone identify three main legal strategies that have been instrumental in securing these rights . First, the 'rule of law' strategy seeks the modest achievement of confining prison authority powers to those set out in the relevant statutes or bodies of rules. The second - 'prison as public body' strategy - relies more heavily on administrative law and the increased possibility of judicial review of relevant public bodies. Most recently, though, we have seen the growing importance of the ECHR and other international human rights instruments. This has led to the gradual development of a 'prisoners' human rights jurisdiction'. The positive duty to prevent suicides by persons in State custody and the parallel duty to properly investigate all suspicious deaths have been explicitly recognised in Strasbourg jurisprudence . These rights were subsequently applied in English courts in the case of R v Secretary of State for the Home Department, ex p Amin and Middleton . The Court of Appeal summarised the requirements of Article 2 ECHR as follows:

"Article 2 imposes two distinct but complementary obligations on the State. Putting the matter very shortly, the first is of others or suicide. The second is an adjectival, procedural obligation to investigate deaths where arguably there has been a breach of the substantive obligation."

The legal arguments for such rights are compelling. But a legalistic approach is not always the most appropriate, particularly where conditions of detention are concerned. It is important that these rights find full expression in the approach taken to management of such institutions, even before resort to the courts. Given that recent reports from the Chief Inspector of Prisons have rarely painted a favourable picture of prison conditions, the Inquiry will need to ensure recommendations are designed to nurture a healthier and more supportive custodial environment.

Human rights and immigration detention

The recognition of state obligations to respect the human rights of detained persons has particular relevance for those in immigration detention. At present there are approximately 2000 immigrant places in detention centres (now renamed 'removal centres'), with plans underfoot to increase that number to 4000 . Meanwhile the number of actual detainees is increasing rapidly, with figures currently at their highest ever in the UK. The majority of those detained have committed no crime, amongst them children, vulnerable adults with mental/physical health problems, and rape/torture victims. Not only are there severe obstacles to obtaining release from detention, but a lack of information and resources mean that procedural guarantees, which would otherwise ensure protection from arbitrary detention, are often absent. There is currently no statutory limit to the length of detention and delayed proceedings frequently entail prolonged custody. With no easy access to review by a court and the automatic entitlement to bail now repealed, most immigrant detainees are left feeling powerless and vulnerable. Insofar as detention is required by reason of administrative convenience, it is imperative that full consideration be given to the needs of those detained.


But it seems the needs of those detained are far from being met. These worries have been highlighted by the recent HM Inspectorate for Prisons report ('the Report') into conditions in five immigration detention centres. The report is the first of its kind and offers a valuable insight into the often appalling situation many asylum-seekers find themselves in. Its conclusions are not comforting. Perceptions of safety, couched in terms of protection from physical and psychological harm, were found to be low in most centres, with a worrying trend towards heightened feelings of insecurity over time.

Whilst complaints about custodial care were limited, the report found that "staff in most centres were not sufficiently alert to, or trained in, the specific needs of immigration detainees" . In all centres there was insufficient constructive activity for detainees. Procedures for removal or transfer of detainees often involved withholding information until the last minute, apparently in an attempt to minimise security and self-harm risks. In some cases, the movement of detainees was not even communicated to family or legal representatives.


The need for an immigration detention deaths inquiry

In fact, it is possible to take the argument one step further. Immigrant detainees are not merely another section of the custodial population at risk of suicide, self-harm, death or injury. In many ways, they are the most vulnerable and least protected amongst those detained. If anything, the State is under a much higher obligation to protect these individuals than many others. Three factors at least weigh in the balance:

First, immigrants often come from situations of detention and torture in their countries of origin. The argument that further detention of those who have suffered to such an extent is "morally inadmissible" has been repeatedly raised . In-depth studies conducted by psychiatrists have found that, "Detention reactivates and exacerbates trauma which has been previously endured. The physical environment including the cells, uniformed security personnel, physical restrictions, searches and so on rekindle memories of previous detention and torture." Unfortunately avoiding custody in these circumstances often proves near impossible. In cases of torture, the burden is on the asylum-seeker to obtain a medical report, with research by the Medical Foundation suggesting that even this evidence will not necessarily signal the end of detention . Their conclusions are particularly worrying in institutions where healthcare, and in particular mental health care, is a recurring issue and treatment is described as poor . More worrying still is the finding that the three dedicated removal centres under inspection were said to lack "some of the necessary procedural safeguards that the Prison Service is accustomed to providing and that were more evident in prison establishments: clear suicide, self-harm and anti-bullying strategies and processes, clear management and monitoring structures for race relations" .

Second, INQUEST has often highlighted the link between suicide and the stress caused by being imprisoned. This connection seems to be particularly strong in the cases of lifers and remand prisoners: two groups imprisoned with little idea of when they will be released. If this is so, the analogy can only apply more strongly to immigrants awaiting consideration of their asylum application. The Report was especially critical of the lack of reliable information available to detainees about the reasons for detention, the progress of their cases, or the availability of independent legal advice. Without these reassurances, it is inevitable that feelings of insecurity and desperation will be amplified. Availability or lack of reliable information is only one side of the coin though; this information must also be relayed and understood. A lack of interpreters and translated information was a recurring problem raised by the Report. More often than not other detainees were used in this role. This is clearly not an ideal situation where important and sensitive information is being exchanged in interview (eg with medical professionals and legal advisors).

Third, the isolation experienced by most immigrant detainees is recognised in other circumstances to have severe repercussions. It is only for this reason that prisoners on remand have the right to daily visits rather than the twice-monthly visits allowed those who have been convicted. Immigrants would seem to suffer most on this account since language barriers, the absence of family or contacts in-country, and even segregation from other immigrant detainees (particularly those temporarily detained in prisons) are all acknowledged to contribute to feelings of isolation. The report outlines wide divergences in detainees' ability to telephone relatives or legal advisors. In Lindholme Removal Centre, for example, only one outgoing phone was operational at the time of inspection and no provision was made for free phone cards after reception. It is perplexing that by far the cheapest method of contacting overseas relatives - email - is not made better use of (and in fact is rarely available at all) in places of detention.

Under consideration: Should there be a separate review?

"The rights to life and dignity are the most important of all human rights, and the source of all personal rights […] By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the state in everything that it does…"

Whilst there is not the space here to give more than a cursory overview of the situation of immigrant detainees, the above plainly illustrates the need to review immigrant deaths in custody. Where detention is completely at the will and liberty of the State, there is no doubt that responsibility falls with the State to ensure that all reasonable steps are taken to secure the protection of life. Nowhere does this hold greater resonance than in the plight of the asylum seeker detained for administrative convenience.

Whilst the forthcoming inquiry has much to commend it, there are clearly issues of particular importance to immigrants that will not find full expression in the context of such a generalised review. Given the significant increase in numbers of immigrant detainees and the growing recognition of their predicament, it is perhaps time now to consider a separate review. Liberty has said as much with regard to the procedural rights in its report assessing the investigation, inquest and remedies following deaths in custody . This article attempts to show the same reflection is due their substantive rights.

Katherine Worthington JUSTICE

   
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