“The risk of abuse is inherent to detention”
Last week, a woman detained in Yarl’s Wood immigration removal centre in the UK alleged that women who were being held there were victims of abuse by security guards and other officers. “A lot of officers were taking advantage of the girls that were detained. They would promise favours or offer to make life easier, saying they would have more chance of winning their case or staying in the country”, she said.
The ECRE Weekly Bulletin has talked to Jerome Phelps, Director of Detention Action, about abuse in detention, the Detained Fast Track procedure where asylum seekers are incarcerated throughout the entire asylum procedure, proposed cuts on legal aid, and alternatives to detention.
Detention Action challenges immigration detention in the UK and supports migrants who are held in detention. Around 3,800 migrants and asylum seekers are in detention in the UK on any given day.
Do you think the sexual abuse allegations from a detainee at Yarl’s Wood immigration removal centre are an isolated case?
It is in the nature of immigration detention to create risks of this sort of abuse. It is in the nature of incarcerating people outside the safeguards of the legal justice system to put people in this highly exposed and vulnerable situation and this creates the risk of abuse. Additionally, in the UK, many of the services running detention centres and escorting detained migrants are contracted by private security companies, which complicates the oversight.
This is not just a UK problem. The very fact of immigration detention as it has been developed over the last twenty years creates a risk of abuse. That is not to diminish the obligation on States that use detention to develop systems to oversee and minimise that risk as much as possible.
“The involvement of private security companies in the management of detention centres complicates the oversight”
What do you think is needed to avoid the risk of abuse in detention?
The risk is inherent to detention. I do not think there are easy solutions. In the UK, there are particular factors that exacerbate the vulnerability of migrants. Firstly, the procedures which are meant to ensure that people who are not suitable for detention are not being detained are completely dysfunctional. For example, there are significant numbers of migrants in detention with very serious mental health problems who should not be detained. Secondly, the UK, unlike most of the other European countries, does not have a time limit on detention, so migrants in detention in the UK have the additional vulnerability of not knowing when they will be released. That is a very different situation to the vast majority of people in criminal custody for example, where they have the safeguard of a date when they should be released. Furthermore, the UK routinely detains large numbers of asylum seekers in the Detained Fast Track procedure for asylum seekers. These may be people who have just arrived in the country following experiences in their country of origin which have caused them to flee. So, people who are potentially very disoriented and distressed find themselves in highly security prisons.
“In the UK, migrants in detention are detained indefinitely – unlike most people in criminal custody who have the safeguard of a date when they should be released”
Is the UK Government reconsidering its policy on detention of migrants and asylum seekers?
In the short-term, no. The trend at the moment is to increase migrant detention. The UK has just announced that a prison will be converted into an immigration detention centre. This is in a very isolated area where there are very few local services. There are concerns that the people detained there are going to be particularly isolated, vulnerable and at risk of being unable to pursue any allegations of ill-treatment. This is the second time the government has converted an isolated prison into an immigration removal centre, the first one being Morton Hall, two years ago. We have already seen many highly vulnerable people being transferred to Morton Hall.
However, the authorities are taking steps to try to speed up people’s progress through detention. A new approach has just been implemented that should lead to people spending shorted periods in detention. The hope is that over the longer term we will see a reduction in the number of detained people.
According to your experience, what are the repercussions of detention on asylum seekers and other migrants?
Detention is enormously traumatic for the majority of people who go through it, whether you are being locked up for the first time in your life or whether your previous experience of being locked up was in your country of origin where you were mistreated and perhaps tortured, or whether you finished the time of your sentence and expected to be released and find yourself detained indefinitely. Losing your liberty is a horrendous experience for anyone in any circumstance. People who have severe mental problems and survivors of torture find it particularly traumatic.
Also, the UK routinely detains migrants for periods of years with little prospect of being deported and we are very concerned about the long term impact on the mental health of these people who spend years detained without knowing how long they will be there. People often say to us that they tell themselves they are serving a life sentence because that is the only way that they can rationalise what is happening to them.
Detention Action is challenging the Detained Fast Track system. Why and how are you doing it?
In the Detained Fast Track process, asylum seekers are detained throughout the asylum procedure, from when they first make their asylum claim. They are put on the Detained Fast Track because the Home Office judges that their case is straightforward. The authorities make this judgement without meaningful information about the details of the claim. Often asylum seekers have just an hour or two with a lawyer in the morning of their asylum interview. The next day, 99% of people receive a letter saying that their asylum claim has been refused and they are given two days to appeal the negative decision. Many asylum seekers are dropped before the appeal by their lawyer, because their lawyers say that they do not have at least a 50% chance of success. So, many people have to make appeals in this very, very short deadline without access to legal advice and without the opportunity to leave detention to gather the evidence that they need to prove their case.
“Many asylum seekers in the ‘detained fast track’ process have to make appeals within a very short deadline, without access to legal advice and without the opportunity to leave detention to gather the evidence that they need to prove their case”.
The UK Government is discussing new cuts on legal aid. How would this affect people in detention?
The initial proposal was to exclude from legal aid everyone currently not legally resident in the UK, through the ‘residence test’. Anyone in migration detention is almost by definition not legally resident and would not meet the residence test criteria. It is enormously positive that the Government has stepped back from removing legal aid from everyone in detention and has decided that persons challenging their detention, fresh asylum claims and asylum seekers whose applications have been rejected will continue to receive legal aid.
Currently, victims of abuse in detention have access to legal aid. However, if these proposals go ahead they will lose the right to legal aid for assault allegations, as the residence test will apply to them. This is enormously problematic, particularly in the light of allegations such as the ones at Yarl’s Wood. Likewise, destitute asylum seekers will not be able to access legal aid.
It is also particularly problematic that these changes are secondary legislation which means that there is very little parliamentary scrutiny. We are campaigning against these proposed changes. It is very encouraging that the Liberal Democrats yesterday voted against the proposal. The hope is that the proposal can be defeated altogether. However, there is no guarantee of a parliament vote, so there is a risk of these enormously problematic changes being passed without any approval of the parliament.
“If proposed new cuts on legal aid go ahead, victims of abuse in detention will lose the right to legal aid for assault allegations”
Is detention necessary? What are the alternatives?
There are alternatives to detention which the Government could use and avoid the massive damage that detention causes to migrants. For example, the Swedish case management model ensures that there is communication and dialogue with migrants, that they have access to legal advice and accommodation, and that they can actively engage with the process and their case. These projects have shown that there are very low rates of absconding and very high rates of compliance with government decisions. In the UK, there is a very confrontational system between government and migrants, where both sides are fighting to win the case and migrants in the vast majority of the cases are very reluctant to consider voluntary return because they do not trust the system or the Home Office.
There is a need to change the structure of the system in the UK and work proactively with migrants in the community as a way for States to avoid the need to rely on detention while meeting their immigration control objectives without having to spend vast amounts of money incarcerating migrants.
“75 million pounds a year could be saved by identifying earlier which migrants are not removable and thus not keeping them in detention for long periods”
What is the impact of immigration detention in the UK public purse?
Recent research we have commissioned on the issue shows how much is wasted on the long-term detention of migrants who will be released anyway. 75 million pounds a year could be saved, simply by identifying earlier which migrants are not removable and thus not keeping them in detention for long periods.
This article originally appeared in the ECRE Weekly Bulletin of 20 September 2013.
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