Judges join lawyers in criticising Home Office for misleading information and ‘nonsense’ in court
Our international reputation is at risk, warns Bar Council
Judges have joined barristers, solicitors and a range of specialists in airing a catalogue of concerns over the Government’s treatment of immigration detainees in a report published today that condemns inflexible Home Office rules and target-obsessed officials.[i]
Speaking under the condition of strict anonymity for an independent study commissioned by the Bar Council, one judge claimed simply that ‘too many people are being banged up’.[ii]
The quality of Home Office bail summaries were universally lambasted by research participants and judges berated Home Office officials for giving misleading information to tribunals and for presenting them with ‘elliptical nonsense’ when challenging bail applications.[iii]
One barrister echoed the perspective of many research participants, saying of Home Office Presenting Officers:‘Some are quite good, professional… others are incompetent, and some seem to be on some sort of mission to imprison people…’ The Officers were additionally criticised for adhering rigidly to ‘stupid’ codes, overlooking key details[iv], and for being reluctant to disclose important information[v] at tribunal hearings. Insufficient training[vi] and supervision were also blamed for wasting time and tax payers’ money.[vii]
Reflecting widespread concerns over detainees’ access to legal help, one judge spoke of the ‘shocking’ rise in unrepresented litigants in person.[viii]
Responding to ‘Injustices in Immigration Detention’ written by Dr Anna Lindley of SOAS, the Chair of the Bar Andrew Langdon QC said:
“This is a very detailed and well-researched report drawing on interviews with judges, barristers, solicitors and a range of specialists.
“It shows that there is a growing sense of frustration with how the Home Office manages immigration detention. The Home Office is one of the great offices of state, but the quality of its decision-making is unacceptably poor. Dr Lindley’s research paints a picture of officials acting with little accountability, unable or unwilling to pursue obvious and viable alternatives to detention.
“It is right that Government should set immigration and removal targets according to the mandate for which it was elected, but given that the liberty of the individual is at stake, proper scrutiny is essential.
“If we cannot remove or detain people fairly and in accordance with the rule of law, we fail to live up to the standards we expect of others.
“The quality of decision-making by immigration officers is exacerbated by the difficulties faced by detainees in obtaining legal advice and representation. Dr Lindley found that in some areas, over 30% of detainees making a bail application before a tribunal judge do so without a lawyer to represent them.
“The complexity of immigration law is also at fault. It is a constantly shifting and highly politicised area of law, such that there is a dearth of settled case law to guide the judges. The law allows a wide degree of discretion, resulting inevitably in considerable inconsistency.
“Almost every informed commentator accepts that fundamental to the reforms required is the introduction of a statutory 28-day time-limit on detention. The UK is the only European country not to have a time limit.
“The UK has an otherwise well-deserved international reputation for upholding the rule of law. By not addressing problems with immigration detention, we put that reputation at risk. We expect other countries to follow the rule of law and so we must practice what we preach.”
Commenting on immigration detention, Chair of the Bar Andrew Langdon QC said:
“Many people are surprised to learn that individuals can be locked up indefinitely in prison conditions, not for committing a criminal offence but for administrative convenience whilst their immigration status is decided or arrangements are made for their removal.
“Presently, a decision to detain an immigrant can result in their detention for sixth months, a year, or even longer. Because these decisions are ‘administrative’ decisions delegated by the Home Office they do not require judicial oversight. Detainees have no opportunity to challenge the initial decision to detain them. Many of the decisions to detain, or to continue to detain are highly questionable. In fact, only half of those held in detention are actually returned to their country of origin and pilot studies show that 90-95% who are released pending a decision on their removal do not abscond.
“Apart from the human cost, the figures referenced by Dr Lindley suggest that this system of immigration detention is a questionable use of scarce public money.
“Around 30,000 migrants are held for some time each year at a cost of £125 million. That is £34,000 per detainee per year. That is on top of an average of over £4 million a year in the last three years that the Home Office has had to pay out in compensation for unlawful detention.
“Meanwhile, legal aid cuts have left many vulnerable people, including those detained in immigration detention, without access to the help they need.”
Indefinite detention in numbers
- At the end of June 2017, 56% of people living in detention centres had been held for more than 28 days. There were 271 people who had been held more than six months, and 80 more than one year.
- Immigration detention cost the Government £125m in the year ending 31 March 2016 at a cost of around £34,000 per detainee per year.
- The Government paid nearly £14 m in compensation claims in the three years from 2012 to individuals who had been unlawfully detained.
In light of the independently produced report, the Bar Council is making the following recommendations to Government:
- A 28-day time limit for administrative detention
- Automatic judicial oversight of the arrangements for holding people in administrative detention
- Adequate legal aid for advice and representation for those held in immigration detention to challenge the loss of their liberty
- A ban on the use of prisons for the purposes of administrative detention
- Special care for vulnerable people and victims of torture held in administrative detention, and
- Review and clarification of the criteria for administrative detention. The relevant policy and rules need to be accessible and intelligible so that all those who are affected by the exercise of powers to detain understand the reasons for the exercise of those powers and can challenge decisions where appropriate
Further information on ‘Injustices in Immigration Detention’ by Dr Anna Lindley
‘Injustices in Immigration Detention’ is an independent report commissioned by the Bar Council, written by Dr Anna Lindley of SOAS.
The report uses the concepts of the rule of law and access to justice to investigate the situation of people in immigration detention. It examines:
- The legal and policy framework and how the government practices immigration detention
- How legal processes work as mechanisms for people to challenge their detention, and
- Detainees’ access to legal services and their capacity to engage with the legal system.
The research, carried out over three months, draws on a review of official documents, research and statistical data, as well as 21 interviews with barristers, solicitors, immigration judges and other specialists.
End Notes and References to the Report
 Home Office Immigration Statistics – April to June 2017, Detention Tables dt11q
 Terry McGuinness and Melanie Gower, ‘Immigration Detention in the UK: An Overview’ House of Commons Briefing Paper No. 7294 (2017)
[i] ‘Some HOPOS don’t see what their role is. They have targets to keep people in detention. But their role should be to assist the tribunal to reach the correct decision in accordance with the law.’ They nearly always officially oppose bail.
– Interview with judge (3), page 22
[ii] ‘Too many people are banged up. The EIG bangs on about presumption of liberty in Chapter 55, and connection to removal, but look what happens.’
– Interview with judge (1), page 18
[iii] Lawyers and judges observed both basic inaccuracies in name and nationality as well as misleading statements: as one judge put it, ‘elliptical nonsense’.
– Interview with judge (2, also 3), and speech by Judge Nicholas Easterman at Citizen and State event organised by Bar Council, 7 November 2017, page 21
[iv] The judges lament the thinness of the bundles often provided with bail applications, and the extent to which key details are often overlooked.
– Interview with judges (2 & 3) and barrister (7), page 28
[v] As with the HOPOs, GLD lawyers have developed a series of ‘lines to take’ for immigration cases, and have recently come under criticism from judges on various grounds, particularly regarding reluctance to disclose important information.
– Interview with judge (2) see also Ben Amunwa, ‘How not to do disclosure’: a government lawyer’s guide’ Law Mostly blog, 9 February 2016, Colin Yeo, ‘Tribunal criticises government lawyers for “trench warfare” mentality and “inappropriate” conduct’ Free Movement Blog, 9 October 2017, page 32
[vi] Judges also voiced concern that the poor training and supervision of HOPOs wastes legal time and money.
– Interview with judge (3), page 22
[vii] ‘There is this stupid code that the HOPO just says ‘I have little to say.’
– Interview with judge (2 & 3), page 22
[viii] One judge noted that since LASPO: ‘We see far more litigants in person. It is shocking when you consider that this is about liberty, a key human right.’
– Interview with judge (2), page 48