19 April 2013
The first UK study of its kind, published by BID today, examines the cases of 111 parents who were separated from 200 children by immigration detention. The UK Border Agency repeatedly failed to safeguard children when detaining their parents, with appalling consequences for the children concerned. (Click here to download the report : ‘Fractured Childhoods: the separation of families by immigration detention’)
15 April 2013
The Legal Aid Authority (LAA), has just released the rotas for legal aid providers attending legal advice surgeries in immigration removal centres for the period April 2013 to March 2014.
One of the two lists covers the Detained Fast Track, while the other covers the standard legal surgeries.
The two lists can be downloaded as Excel files from the very bottom of the right hand column of this page.
ECtHR judgment in Abdi, BID intervened. Finding of Art 5 breach, real though limited compensation for unlawful detention
9 April 2013 Press Statement
ECtHR Abdi v. the United Kingdom (no. 27770/08)
The judgment can be accessed via the European Court of Human rights website
BID welcomes the Court’s finding that there has been a violation of Article 5 (1) of the Convention in this immigration detention case. In its judgment the Court notes that in relation to the length of detention, the UK Supreme Court in Lumba & Mighty v SSHD found that “where return was not possible for reasons extraneous to the person detained, the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect”. The Court states that it finds this approach consistent with the one it took in Mikolenko v Estonia, no. 10664/056 8 October 2009, noting here at 74 that:
“In that case, the Court did not suggest that the applicant’s refusal to co-operate with his detention was irrelevant; however, in view of the extraordinary length of his detention and the fact that his removal had for all practical purposes become virtually impossible, it accepted that his continued detention was no longer being effected with a view to his deportation”.
BID’s submissions in this case indicated that the effect of the Court of Appeal’s decision of July 2007 in this case was to limit the power of domestic courts to review detention pending deportation.
“While the case of Mikolenko v Estonia identified the relevant test as whether there was a “realistic prospect” of expulsion, the Court of appeal in the present case had asked whether there was “some prospect” of removal. Moreover, in Mikolenko the Court had held that it was not relevant that the detained person refused to cooperate with the process of deportation, while the Court of Appeal in the present case had focused on the activity of the applicant” (para 63).
The applicant, Mustafa Abdi, is a Somali national who was born in 1975 and is currently detained in London. Having arrived in the United Kingdom in 1995, his asylum claim was refused, but he was granted exceptional leave to remain until 2000. In July 1998, he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. His release was foreseen for September 2003, but he remained in detention pending deportation. He complains that his detention, until being released for a short time in April 2007, violated his rights under Article 5 § 1 (right to liberty and security), in particular because of its duration. Relying further on Article 13 (right to an effective remedy), he complains that he did not have an effective remedy in respect of that complaint. Finally, he complains that his removal to Mogadishu would put him at risk of ill-treatment, in breach of Article 3 (prohibition of torture and of inhuman or degrading treatment).
The Court posed three linked questions to the parties in its statement of facts of 09 June 2009:
- Was the applicant lawfully detained throughout the period between 3 September 2003 and April 2007 as “a person against whom action is being taken with a view to deportation” within the meaning of Article 5 § 1(f)?
- What weight should be attributed to the fact that at any time the applicant could have put an end to the period of immigration detention by agreeing to return voluntarily to Mogadishu?
- Did the length of the detention exceed that reasonably required for the purpose pursued under Article 5 § 1(f)?
Shortcomings in the procedural safeguards afforded in the UK against arbitrary detention
BID’s interest was to comment on those issues not in relation to the individual case but to the extent that they have a wider impact on the thousands of people detained under immigration powers in the UK each year, a number of whom at any time have been detained for over one year (and up to seven years in a very few cases). BID’s intervention in this case came at the point where, it was submitted to the Court, there had been a sharp increase in the number of foreign national prisoners being deported from the UK.
BID emphasised to the Court that in considering whether detention became unlawful by reason of its length in this case that there are and were numerous shortcomings in the procedural safeguards afforded in the UK against arbitrary detention, namely:
- There is considerable evidence that the executive system of review of administrative detention is (a) inadequate, since monthly reviews of detention are frequently not completed, or at least are not completed by persons of the appropriate seniority; and (b) a sham in that caseworkers were throughout the period April 2006-July 2008 (during the currency of the secret policy) instructed to give whatever reasons seemed most justifiable.
- The UK government has admitted to the High Court that between April 2006 and June 2008 it misled the Courts as to the true policy it was applying in respect of foreign national prisoners. Its published policy in chapter 38 of the Operations Enforcement Manual had in reality been displaced by a secret, unpublished and undisclosed policy of blanket, alternatively presumptive detention of all foreign nationals at the expiry of their prison sentences.
- The jurisdiction of the Asylum and Immigration Tribunal [now the Immigration & Asylum Chamber] to grant bail is predicated on an assumption that detention is lawful, and the practical realities of the bail system are unsatisfactory.
BID noted that a unique feature of the statutory regime of immigration detention, without parallel in other fields of administrative detention in the UK, is that there is neither a statutory time limit on the duration of detention, nor any mechanism of automatic court hearings to review its legality.
BID submitted that it was important that the ECtHR be aware that the three primary procedural safeguards which would have been available in Mr Abdi’s case: Home Office review of detention; judicial oversight and bail are malfunctioning and inept for a combination of reasons described in detail in submissions.
The Court unanimously
- Decides to strike the complaint in respect of Article 3 of the Convention out of its list of cases
- Declares the complaint concerning Article 5 § 1 admissible and the remainder of the application inadmissible
- Holds that there has been a violation of Article 5 § 1 of the Convention in relation to the applicant’s detention from 3 December 2004 until his release in mid-April 2007
- Holds that it is not necessary to examine the complaint under Article 5 § 1 of the Convention regarding the length of the applicant’s detention during the said period
- Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 1,500 (one thousand five hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable; (ii) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s claim for just satisfaction.
Foreign national offenders - government response to consultation on draft CPS code of practice on adult conditional cautions
2 April 2013
In 2012 the Ministry of Justice published a consultation paper inviting comments on the new adult Code of Practice for Conditional Cautions drafted to support changes to the provisions on conditional cautions in the Criminal Justice Act 2003 prompted by the Legal Aid, Sentencing & Punishment of Offenders Act 2012. The consultation period ran from 4th October to 1st November 2012. The government's response has now been published.
BID's submission to the consultation, and the government response pulished by the Ministry of Justice, can be downloaded from the very bottom of the right hand side column on this page. UKBA has now released new guidance 'Conditional cautions with foreign offender conditions', version 1.0, and dated 8th April 2013, available by clicking here .
BID submitted a response (one of 37 received by the Ministry of Justice), restricting our comments to the provisions for the new foreign offender conditions contained in the ‘Code of practice for Adult Conditional Cautions’. Under this new type of caution, foreign nationals will be asked to agree with their enforced removal from the UK as a condition of accepting an adult conditional caution.
BID’s client group includes foreign national ex-offenders facing deportation action who are held in removal centres, and a smaller number of time-served foreign national prisoners who for various reasons are held in prison under immigration powers at the end of their sentence.
In BID’s view the new foreign national conditional caution provision seeks to harness a means of disposal of offences via the criminal justice system for the purpose of immigration control, in the context of inadequate immigration legal advice within the criminal justice system. The Prison Reform Trust noted separately in their response to the Green Paper that
“A system that used conditional cautions for people already living and working in the UK, on the condition that they left the country would be racially discriminatory and open to challenge under the Equalities Act”.
BID’s view at the time was that the overall effect of the use of foreign offender conditions with adult conditional cautions would be to shift responsibility for foreign nationals facing removal to the Home Office at the point they are transferred to immigration removal centres, but without in any way addressing or resolving the underlying immigration issues in individual cases. Writing this note post-April 1st 2013 brings into even sharper focus the potential impact of this provision, now that legal aid is no longer available for general immigration matters, including deportation.
BID’S KEY CONCERNS ABOUT FOREIGN NATIONAL ADULT CONDITIONAL CAUTIONS
- The inadequate provision of immigration legal advice in police stations, currently delivered as a 30 minute conversation via telephone with no sight of papers, carries a serious risk of bypass of due process. Now, post-April 1st 2013 when most immigration matters, including deportation, have been taken out of scope of legal aid, foreign national with no current leave to remain but who may otherwise have a strong claim to remain in the UK (e.g. long term UK residents) will be particularly vulnerable to injustice.
- Most foreign nationals who are - on the face of it - suitable for this type of adult conditional caution will be required to agree or disagree with the caution without the benefit of any immigration legal advice at all.
- The apparent removal of CPS oversight of the use of conditional cautions.
- The difficulties inherent in assessing removability from the UK (in immigration law terms) for custody sergeants in police stations.
- The use of foreign national conditions with adult conditional cautions appears to be an attempt to provide the exclusionary provisions found under the Immigration Rules at 320 (7B) but by operating outside the Immigration Rules and outside the protections afforded by appeal provisions relating to deportation (whether court-ordered deportation under Immigration Act (1971) or so-called ‘automatic’ deportation (UK Borders Act 2007)).
- There is no obvious protection for vulnerable individuals. Protection is currently required under PACE when considering cautions for individuals with mental illness or learning disability, but other vulnerable groups should include age-disputed foreign national minors, and foreign national victims of trafficking.
- It is unrealistic to expect victims of trafficking to reveal at the point of arrest that they have been trafficked in such a way that they can be properly excluded from the use of an adult conditional caution with foreign national conditions. By means of a case study we showed that it is typical of our client group not to reveal that they have been trafficked for weeks after arrest.
- Once held in immigration detention pending removal, and able to access immigration legal advice, foreign nationals who have received such a conditional caution may discover they have a strong case to remain in the UK and make the appropriate legal challenge.
 Prison Reform Trust, (2011) ‘Response to Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders’, p: 22
SELECTED EXTRACTS FROM THE RESPONSE DOCUMENT: SUBMISSIONS AND GOVERNMENT RESPONSES
Foreign offender conditions
19. Several respondents commented that the places where a foreign offender could be required to report as part of the conditions did not accurately reflect appropriate places. Others commented that the requirement to comply with any lawful instruction from the Secretary of State or an immigration officer was too wide and what this means should be clarified. Another respondent commented that there should be more guidance on offering other types of conditions (reparative, rehabilitative or punitive) alongside the foreign offender conditions.
20. Some respondents questioned the guidance on who was eligible for these conditions. Some respondents commented that they should not be given to an offender who claimed to be aged under 18 but his or her age was disputed by UKBA (a ‘disputed minor’). Another respondent commented that the blanket prohibition at paragraph 2.20 preventing the conditions being offered to those who make an asylum or human rights claim to remain in the UK, was too wide and unnecessarily excluded those who no longer had an outstanding claim, for example where that claim was withdrawn or determined.
21. Some respondents referred to the need to make sure there are sufficiently robust processes in place to identify victims of human trafficking and ensure they are not conditionally cautioned, particularly as they may not always identify themselves as victims to the police.
22. A few respondents commented that the time limits to complete the foreign offender conditions set out at paragraph 2.30 should not be different to the other types of conditional caution and that there was no justification for these being different. Others commented that the period the foreign offender could be excluded from the UK should not be longer than that set out in the Immigration Rules.
23. A theme to the responses on the foreign offender conditions was the immigration status of the offender. Some commented that paragraph 3.6 which sets out what the police must explain to the offender of the effect of the conditional caution, should include a requirement to explain the consequences of the conditional caution on the foreign offender’s immigration status. Others commented that it is not appropriate for the police to make decisions about a foreign offender’s immigration status.
24. There were some comments regarding a foreign offender’s non-compliance with the conditions. Some commented that it was not appropriate to prosecute a foreign offender who did not comply with the conditions due to a subsequent asylum or human rights claim. Others commented that the Code should be clear that foreign offenders can withdraw from conditions as well as not comply with them.
25. Some respondents stated that only the CPS should be authorised to offer FNOs conditions, the police should not have the power to do so.
26. Others commented that the form the offender is required to sign as setting out conditions and the implications of accepting a conditional caution should be translated into a language the foreign offender can understand.
27. Some respondents commented on the provision of legal advice on the immigration matter. Some commented that the foreign offender should receive legal aid for the immigration advice as well as the criminal matter. It was also commented that the Code should be clear that before administering the conditional caution the police should ensure that the foreign offender has had the opportunity to receive legal advice on the immigration matter as well as the criminal matter.
36. The comments set out at paragraph 21 in relation to identifying victims of trafficking is also outside the scope of the Code of Practice. The Government agrees that this is an important consideration, however, there are existing processes in place to address this which focus on the criminal justice system more widely rather than a particular issue for conditional cautions. There are however, sufficient safeguards with conditional cautions to protect such people. If an individual claims to be a victim of trafficking, or it becomes apparent that an individual is such a victim after the conditional caution has been administered, there is provision to withdraw the conditional caution and consider how best to proceed with the matter.
**TRANSLATION OF RELEVANT DOCUMENTS
37. The responses set out at paragraph 25 and 27 are also considered to be outside the scope of this consultation. The power for the police to offer conditional cautions without authorisation from the CPS is now set out in primary legislation following the amendments made by 2012 Act. In relation to paragraph 26, there is no requirement to provide a translated copy of the form to the foreign offender. The Government considers that the Code of Practice provides sufficient safeguards by making clear that the police should ensure that the foreign offender has the conditions and implications of the conditional caution explained to him or her in a language he or she can understand prior to accepting the caution and conditions and signing the form.
Foreign offender conditions
40. Paragraph 2.18 of the draft Code which gives details of the foreign offender conditions has been amended to clarify where an offender can be required to report to as part of the conditions, and that the lawful instruction given by a Secretary of State or an Immigration Officer are to effect a person’s removal from the United Kingdom.
41. One response commented that there should be guidance on the use of other types of conditions alongside the foreign offender conditions. The Code of Practice is clear that the foreign offender conditions should take priority when considering a conditional caution for a foreign offender. Any additional guidance on the operational use of other types of conditions will be set out in the DPP guidance on Adult Conditional Cautions
**AGE DISPUTED MINORS
42. In relation to the responses on eligibility of the foreign offender, it is not considered necessary to specifically exclude disputed minors from the foreign offender conditions. The Government considers there are sufficient safeguards in dealing with such offenders as the conditions cannot be imposed on a foreign offender; the foreign offender must consent to the conditions to depart from the UK and not return for a period.
**USE OF FOREIGN NATIONAL OFFENDER CAUTIONS WHERE ASYLUM OR HUMAN RIGHTS CLAIM INVOLVED
43. The blanket exclusion to offer a conditional caution with foreign offender conditions to foreign offenders who make an asylum or human rights claim to remain in the UK has been amended. The Government is clear that no-one will be removed from the UK where it would be in breach of our international obligations and conditional cautions will not be used to remove foreign offenders whose asylum or human rights claim is ongoing. However, where for example that claim has been voluntarily withdrawn by the offender, or has been revoked, or refused and all appeals against that refusal finally determined, then consideration may be given to whether the foreign offender conditions may be appropriate. Paragraph 2.20 of the Code has been amended to reflect this. As with all types of conditional cautions, the conditions cannot be imposed on the foreign offender. The offender must still admit to the offence and consent to the conditional caution, including the condition to depart from the UK.
**TIME LIMITS WITHIN WHICH CONDITIONS SHOULD BE COMPLETED
44. Some respondents commented on the time limits within which the conditions should be completed and the ability to set a condition excluding a foreign offender from the UK for a longer period than which will be set out in the Immigration Rules. The Government considers that there is a justification for a longer time limit to complete the conditions due to, for example, the need to obtain a travel document from a foreign government. The Government also considers that the new provisions in the 2003 Act enables the exclusion period to be set for a period longer than the Immigration Rules if required. Therefore no further changes have been made to the Code of Practice.
45. There were some comments regarding the effect to the foreign offenders immigration status; that paragraph 3.6 of the Code should be amended to make clear the police should explain the effect of the conditional caution on the immigration status and also that the police should not make a decision based on the immigration status of the offender. In addition, several respondents commented on the provision of immigration advice for the foreign offender in addition to criminal legal advice.
**CHANGE TO REQUIRE POLICE OR CPS TO CONFIRM IMMIGRATION STATUS WITH UKBA PRIOR TO MAKING DECISION TO OFFER THIS CONDITIONAL CAUTION
46. In response, paragraph 2.51 of the Code has been amended to make clear that the decision maker (usually the police or the CPS) must consult with UKBA prior to making the decision to offer the conditional caution and that confirmation of the offender’s immigration status should be obtained. In addition, paragraph 3.6 of the Code is clear that the police should explain to the offender the requirements of the conditions and exactly what the offender will be required to do and the Government considers that this is sufficient for the offender to be informed that the condition requires the foreign offender to depart the UK and not return for a period of time. The foreign offender must consent to being given a conditional caution and in doing so the offender is entitled to seek their own legal advice in relation to their immigration status. However, as noted in the Code, in relation to civil legal aid, the offender is not entitled to free and independent legal advice in relation to most non-asylum immigration matters (such as their immigration status).
47. With regard to responses relating to non compliance of the conditions, paragraph 3.21 of the Code has been amended to make it clear that a foreign offender can choose to withdraw from the conditional caution as well as be considered to not comply.
48. Some respondents commented that a foreign offender should not be prosecuted where they do not comply with the condition to depart from the UK due to making an asylum or human rights claim after the conditional caution had been administered. The Government considers that this is a comment on the policy of the foreign offender conditions and this is outside the scope of the consultation. However, the Government considers that there are sufficient safeguards within the conditional caution scheme for dealing with such a scenario; in every case where conditions are not complied with the offender should be given an opportunity to explain his or her reasons for the non compliance. Decisions makers will then decide whether there is a reasonable excuse for the non compliance, and whether the offender should be prosecuted. This is set out clearly in the Code of Practice and is considered to be sufficient safeguards.
Clarification of existing provisions
**VULNERABLE (MENTALLY ILL) OFFENDERS
53. In relation to comments that the Code should make explicit reference to identifying and dealing with mentally vulnerable offenders, the Government considers that this would not be appropriate. Police officers already have existing guidance on identifying and dealing with such offenders and the Code signposts this guidance. This existing and well established guidance should be followed rather than creating separate guidance for conditional cautions.
Mentally vulnerable offenders
57. Comments were generally positive stating that respondents were pleased to see the Code include provision on mental vulnerability. In responding to the consultation, Mencap agreed that conditional cautions are useful and should be available to those with a mental vulnerability but it was important that such offenders have the additional support they need. Some respondents wanted more guidance on dealing with such offenders. The Government considers this would not be appropriate for the reasons set out above at paragraph 53.
Foreign Offender Conditions
59. There were some comments, mainly from Immigration Legal Practitioners that there may be an issue of race and nationality with regard to foreign offenders being removed from UK following a conditional caution. The government is satisfied that it is right to offer conditional cautions for those foreign offenders with no leave to enter or remain in the UK, who admit to committing a criminal offence, agree to accept a conditional caution with the conditions to depart and not return, and where it is not in the public interest to prosecute. We are satisfied that the use of conditional cautions in this manner is fully justified and designed to help the Secretary of State best manage use of the prison estate and expedite the removal from the UK of those who have no right to be here.
60. Eligibility for the conditions effecting departure from and preventing return to the UK is not based on nationality or ethnicity or any protected characteristic of the offender. Rather it is based entirely on immigration status; only offenders who have no legal permission to enter or remain in the UK are eligible for these conditions.
61.UKBA are already required to removal foreign offenders who have no legal basis of stay in the UK. This is usually done during or at the end of a prison sentence so these conditions bring forward the removal and do not have an affect on the offender’s right to be in the UK.
Parliamentary launch of new BID research 17 April. Event: 'Fractured childhoods: the separation of migrant families'
22 March 2013
Wednesday 17th April 2013 6-8pm in the Grand Committee Room, House of Commons, London SW1A 0AA
The removal of migrants from the UK is high on the news agenda. However, inflammatory rhetoric often hides the very real harm which can be caused to children when families are split by immigration control.
Join us for the launch of a ground-breaking report and hear from experts in the field and affected families.
- Dr. Maggie Atkinson, Children’s Commissioner for England
- Lisa Nandy MP, Shadow Children’s Minister
- A mother who was separated from her children by immigration detention
- Sarah Campbell, Bail for Immigration Detainees, author of the report
Totally ignored: foreign national offenders and the introduction of a Payment by Results system for rehabilitation work
15 March 2013 Press Release
At the end of February BID submitted its response to the Ministry of Justice consultation ‘Transforming Rehabilitation: a revolution in the way we manage offenders’.
BID’s client group includes foreign national ex-offenders facing deportation action who are held in removal centres, and a smaller number of time-served foreign national prisoners who for various reasons remain in prison subject to immigration act powers at the end of their sentence. Foreign national offenders exhibit extreme diversity in terms of country of origin, immigration status, length of stay in the UK, reason for entering and remaining in the UK, nature and strength of family and community ties in the UK, and caring responsibilities. This is in addition to the range of offences for which they have been charged or convicted that have resulted in their custodial sentence. Many foreign national prisoners have been UK taxpayers; many have UK citizen partners, children, and naturalised UK citizen siblings or parents.
A recent survey by BID and ICAR (2013) across the UK immigration detention estate found that 62% of our clients surveyed were subject to deportation action as a result of their criminal sentence, and had been transferred to a removal centre straight from prison. Only 26% of detainees who had been in prison had received any independent immigration advice while in prison, including advice on their deportation.
Our foreign national clients’ contact with probation services and offender managers comes as a result of time spent in prison serving a sentence, and subsequent release from immigration removal centres on immigration bail while they are still under Licence. Where a foreign national held in administrative detention is still under Licence, they must seek approval of the proposed immigration bail address from the receiving Probation Trust before they can make an application for release.
CLINKS have now released a set of answers from Justice Minister Chris Grayling to questions put to him at the Clinks AGM in February 2013. Detention Advice Service (DAS), an organisation providing immigration advice, information and support to those detained, or threatened with detention, under immigration powers asked:"How will Chris Grayling ensure the inclusion of non-UK national prisoners - whether residing in the UK or abroad - in the Rehabilitation Revolution?"
The Minister has now responded, saying "Foreign National Offenders (FNOs) are a diverse group from over 150 nationalities. It is the Government's policy to seek to remove FNOs at the earliest opportunity. however, durign the course of their sentence FNOs have access to a range of activities to support their eventual release into society".
BID’s concerns focus on the likely exclusion of foreign nationals from rehabilitative work under PbR as a deliberate result of commissioning and contractual planning, despite the fact that foreign nationals form around 15% of the prison population at any one time. It is clear from the Ministry of Justice proposal document that women and other groups (young people, people with disabilities, and Black and Minority Ethnic Groups) are not likely to be well served by PbR providers from the point of introduction of PbR rehabiltiative services. There appears to be an expectation that learning will need to take place along the way once PbR delivery has begun, not before. It now seems clear from the Minister's answer to CLINKS that the exclusion of foreign nationals from planning for PbR in rehabilitation was not accidental.
Foreign nationals are not even mentioned in the proposal document, nor are they mentioned in the ‘NOMS Commissioning Intentions for 2013-14 Negotiation Document’, of which the October 2012 version is the most recent. BID therefore urges the Ministry of Justice to consider the needs of foreign nationals in the future provison of rehabilitative services at the earliest opportunity. The Minister’s resonse to CLINKS member Detention Advice Service is not encouraging.
Foreign nationals are not – for the avoidance of doubt – a subset of BAME offenders. It is the immigration status of foreign national offenders, not their ethnicity or culture, that sets them apart, and leads them along different trajectories in the criminal justice system to BAME UK citizens, who are not subject to periods in immigration detention while on Licence.
In BID’s experience of legal casework with this group, foreign national offenders held in immigration detention are already disadvantaged by their low priority among probation trust staff. Offender managers are often of the view that a foreign national offender will be removed or deported from the UK, when this is not necessarily the case. Licence-related address checks for immigration detainees seeking release on immigration bail are currently taking up to 8 weeks to complete, a situation that delays exercise of the right to apply for release from administrative detention and may be creating grounds for unlawful imprisonment. Just as importantly for the Ministry of Justice, around 40% of deportation orders are successfully appealed, and even those foreign national offenders who are eventually removed from the UK may spend signficant periods in the community during their Licence period if they are released from immigration detention on on immigration bail pending the securing of travel documents. This group of offenders cannot simply be ignored.
CLINKS Clinks supports the Voluntary and Community Sector working with offenders in England and Wales. Our aim is to ensure the Sector and all those with whom it works, are informed and engaged in order to transform the lives of offenders and their communities.
Detention Advice Service (DAS) DAS works in prisons providing immigration advice, information and support to foreign national prisoners and detainees.
Litigants in Person vs. Self-Represented Litigants: a view from immigration bail hearings in light of new guidance on terminology from the Master of the Rolls
13 March 2013
In our recent research report ‘The Liberty Deficit: long term detention and bail decision making’ we chose to use the term ‘unrepresented’ rather than adopt the term ‘self-represented’, as now increasingly used by the Ministry of Justice. In BID’s view, bail applicants who have not had the benefit of legal advice or representation are lodging bail applications and appearing at bail hearings, but what they are not doing is representing themselves in any meaningful or informed sense.
BID therefore welcomes the guidance issued on 13 March 2013 by Lord Dyson, Master of the Rolls, on the use of terminology in relation to those who conduct legal proceedings on their own behalf.
BID’s experience is that unrepresented applicants often have little idea of how to frame grounds for release (often mixing up the purpose of bail applications with evidence used in relation to their claim for protection); the tone of their application is often wrong and may contain personal or emotional appeals to the judge; they are often unable to marshal suitable sureties with supporting evidence to appear on the day; and they have little or no idea of what evidence is available, could usefully be submitted, or how to obtain it. All of this is assuming that they can read and speak adequate English, and feel sufficiently confident to navigate the tribunal system.
To use terms that suggest otherwise – such as ‘Self Represented Litigant’ – is, we believe, to mask the reality of the way legal aid advice is now delivered in England and Wales. Simply changing the language will not alter the experience of legal advice for immigration detainees or any other client group reliant on publicly funded legal advice. Recent Ministry of Justice pronouncements suggesting that immigration matters do not in fact always require legal advice have not had the effect of simplifying overnight the complex tangle of immigration rules, statute, and case law that a person making an appeal or bringing a case must negotiate unaided. In this latest BID research we found a clear representation premium in bail hearings. In our study, those bail applications where applicants were provided with a pro bono barrister by BID had a 31% grant rate while unrepresented applicants were granted bail in only 11% of cases. This is also despite the fact that many of the BID represented cases, unlike the unrepresented cases in this study, will have had more complex immigration issues to address given the longer periods of their detention.
As Lord Dyson noted in his statement accompanying this guidance, the term ‘Self-Represented Litigants’ has recently gained some currency, but he notes:
“I have considered all the circumstances, including the fact that the term ‘Litigant in Person’: is used in statute (e.g., The Litigants in Person (Costs and Expenses) Act 1975); is and will continue to be used by Government; is commonly understood and well-known both by the legal profession and individuals generally; the term ‘Self Represented Litigant’ is unclear in its scope, as it can variously be understood to suggest that individuals are conducting the entirety of legal proceedings on their own behalf, that they are only conducting court advocacy on their own behalf or, that they have themselves obtained representation i.e., secured the service of an advocate.
In the light of these factors I have therefore determined, with the unanimous agreement of the Judges’ Council, that the term ‘Self Represented Litigant’ should not be adopted or used in future. The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf.”
Professional legal representation makes a difference, not only in terms of case outcome but also to the review and progression of a case in the round, and the management of client expectations.
20 December 2012
As part of BID's Travel Document Project we make routine requests for disclosure under the Freedom of Information Act for the most up to date information available from UKBA on their information about travel document procedures and timescales relating to specific countries.
The most up to date 'timescale grid' has just been supplied to us, and is available to download from the very bottom of the right hand column of this page.
This document contains information by country under the following headings:
- Minimum ETD/EUL requirements
- Current country information
- Approximate timescales (with original evidence, with copy evidence, with no evidence)
Earlier copies of this document obtained by BID and distributed widely will now be out of date.
BID's view on determinations of unlawful detention being moved to the First Tier Tribunal: an extract from our new research report 'The Liberty Deficit: long-term detention & bail decision making'
20 December 2012
The current President’s Bail Guidance for judges states:
“A First-tier Tribunal Judge’s power is simply to grant bail, which is itself a restriction of liberty. The judge has no power to declare the detention unlawful and give any relief if it is considered to be; such matters need to be decided in the Administrative Court or in a claim for damages. Given the wide ranging powers of the immigration authorities in relation to the detention of non-nationals, First-tier Tribunal Judges should normally assume that a person applying for immigration bail has been detained in accordance with the immigration laws. However, it will be a good reason to grant bail if for one reason or another continued detention might well be successfully challenged elsewhere” (HMCTS, 2012: paragraph 5)
The bail guidance appears to be saying that the Tribunal can take legality of detention into account, indeed that it is increasingly required to take into account the likelihood that detention might be unlawful when making a decision about whether to grant bail. The guidance itself contains many points coming out of the jurisprudence on the legality of detention. Bail decisions are not necessarily but can be determinative of the lawfulness of detention.
The research findings in Chapter 3 of our report ‘The Liberty Deficit: long-term detention and bail decision making’ demonstrate that a number of the criteria that First Tier judges are required to consider when deciding whether or not to grant bail are pure lawfulness points. For example, the length of detention to date and the likely future duration of detention, and the need for the reasons given by the SSHD for the continued detention of the applicant to be specific to and demonstrate consideration of the applicant’s circumstances, not merely make a statement of general policy. In this new era of extremely long-term detention, where a bail applicant has the benefit of legal representation and has been detained for a significant period, much of the evidence submitted to the Tribunal as part of their application for release on bail may be of a similar nature and quantity to that used for unlawful detention cases in the High Court, as we show in Chapter 4 of the report.
Given these similarities, the current burden on the Administrative Court (that part of the High Court that deals with claims for unlawful detention, often following a claim for judicial review), and the lengthy delays experienced by detainees wishing to challenge the lawfulness of their detention, it is perhaps understandable that consideration is being given in some quarters to the notion of determinations of unlawful detention being moved to the First Tier Tribunal. Indeed, the perception is that the specialist tribunals are expert in their field of the law and due deference should be given in view of this. However, the lawfulness of detention is not an issue that First Tier judges in the Immigration and Asylum Chamber are particularly specialist in. While unlawful detention is not legally complicated it can be complex on factual grounds. This research has highlighted serious concerns about the reliance by the Tribunal on arguments that have not been substantiated before applicants, and BID would argue that in relation to issues of criminal risk it cannot be said at present that the First Tier Tribunal provides specialist expertise in relation to the factual content of such cases.
Bail decisions produced by the Tribunal are not full written determinations, and they do not make findings or lay out the factual evidence of both parties. Chapter 3 of ‘The Liberty Deficit’ report shows that the content of written bail decisions is largely shaped by the format of Refusal of Bail notices. Bail decisions fail to provide the full account necessary for assessing the development of a case that is required when deciding whether continued detention is lawful. This must mean that bail decisions are to be treated with great care by any party considering evidence as to whether or not detention has become unlawful.
Nevertheless, the Tribunal provides all parties to a case with an opportunity for independent assessment of the issues relating to a person’s application for bail and for release from detention. If the recommendations made by BID as a result of this research were to be implemented, meaning among other things that evidence were to be properly accounted for in fully determined decisions, and if directions were issued by the Tribunal for steps to be taken by both parties to a case, the resulting bail decisions could make a contribution to an eventual assessment of the lawfulness of continued detention in a particular case.
This new research has also shown that as things stand, the First Tier Tribunal (IAC) environment is characterised by constraints on the time available for bail hearings dictated by case management needs, including the need to list bail hearings within a short amount of time, and complicated by the practicalities of video links and the necessity to use interpreters. This report has also shown that insufficient time may be available for consideration of the often sizeable bundles submitted by long-term detainees in support of their application for release. If the Tribunal were to strictly enforce paragraph 51 (7) of the Tribunal Procedure Rules, and if the UKBA were to begin to substantiate assertions made in bail summaries, the pressure on available time in bail hearings would only increase. The Tribunal is currently able to list bail applications and deliver decisions quickly, but it appears to do so in the absence of substantiated arguments on the part of the SSHD in too many cases, most notably where issues of level of criminal risk on release must be considered.
While immigration detention of only one day may be held to be unlawful, it is those people who have been held for several months or years without removal where the need to consider lawfulness is most urgent. However, in BID’s view the First Tier Tribunal of the Immigration and Asylum Chamber is not the appropriate place for this to be done. Bail decision-making as currently delivered in the First Tier Tribunal, including in relation to those issues touching on lawfulness of detention, is certainly fast and efficient, but it is not, in BID’s view, necessarily accurate or fair. In addition, there is a serious risk that if the tribunal system is allowed to determine unlawful detention, then this can create an issue estoppel in the future (when perhaps new evidence has emerged), therefore preventing a detainee from making a claim for damages for unlawful detention.
BID believes that in the absence of substantiated arguments, full written determinations, disclosure of records of proceedings or judges’ notes of evidence, and a First Tier judiciary trained in assessing criminal risk, it must be impossible for the First Tier Tribunal IAC to have a role in determining the continued lawfulness of detention.
 President of the First Tier Tribunal Immigration and Asylum Chamber, (2012), ‘Presidential Guidance Note No 1 of 2012: Bail guidance for judges presiding over immigration and asylum hearings’. Available via HM Courts & Tribunals Service website at http://www.justice.gov.uk/tribunals/immigration-asylum/rules-and-legislation
 Ibid, paragraphs 16 through 20.
20 December 2012
In our first report on bail decision making ('A Nice Judge on a Good Day: Immigration bail and the right to liberty ' (2010), we touched on the inability of the bail system to respond adequately to the needs of foreign national ex-prisoners.
In this second report, 'The Liberty Deficit: long term detention and baill decision making' we are more explicit about this. We describe a mutually reinforcing process involving failures on the part of both the UK Border Agency and the Tribunal in respect of the long term detention of ex-offenders.
We highlight the liberty deficit that has emerged where the Secretary of State’s routine unwillingness or inability to provide evidence to substantiate assertions made in opposition to release on bail, meets the apparent unwillingness of the Tribunal to demand evidence for these assertions. This justice gap is especially concerning in light of the fundamentally cross-tribunal principle contained in the Asylum and Immigration Tribunal (Procedure) Rules (2005) that:
“Subject to section 108 of the 2002 Act, the Tribunal must not take account of any evidence that has not been made available to all the parties” (Section 51 (7)).
BID makes a number of recommendations to the First Tier Tribunal, the UK Border Agency, and other agencies. These are listed below. The full report is available here.
Barriers arising from the use of videolink bail hearing
1. When funds allow, the specification of videolink technology should be raised and infrastructure upgraded in Tribunal hearing centres and immigration removal centres, so as to improve the videolink experience and enable the full participation of all parties.
2. The Tribunal should double the time available for representatives to consult with their client from 10 minutes to 20 minutes, or longer where an interpreter is required.
3. Where a joint bail application is made by an adult family, we recommend that counsel be allowed twenty minutes for consultation with each of the joint applicants, to run consecutively.
4. Tribunal hearing centres should be linked to each other via videolink to allow sureties to appear in the hearing centre nearest them regardless of where the bail hearing is being heard.
5. The tribunal should consider the possibility of separate videoconference booths for the use of barristers and their detained clients (of the sort found at magistrates’ courts), which could then be booked for longer periods outside the timings of court listings.
6. There should be no upper time limit to the length of videolink hearings from prisons for the purpose of immigration bail hearings. If that is genuinely not practical as a result of typical prison regimes then videolink hearings from prisons to Tribunal hearing centres should be capped at 120 minutes rather than 60 minutes.
7. The Tribunal must facilitate complete, comprehensive interpretation of bail proceedings in their entirety, including evidence discussed and arguments, even - and especially - in those bail applications where applicants have long detention histories, complex immigration cases, and where the volume of evidence and argument before the tribunal is likely to be highest.
8. When assessing sureties the Tribunal should no longer require geographical proximity to the bail address where an applicant is reliant on Section 4 (1)(c ) bail accommodation, since under the new COMPASS accommodation contracts this may be impossible for a significant number of bail applicants from now on.
9. As in the criminal justice system, immigration bail sureties should not be expected by the Tribunal to exercise any control over the commission of further offences by the bail applicant.
10. The Tribunal must follow bail guidance in relation to financial requirements made of sureties, which must always be proportionate to the means of the surety, and must not create additional and unnecessary conditions for sureties.
11. The Tribunal should consider the use of continuous sureties in immigration bail applications.
Case management and length of listings
12. The First Tier Tribunal should again review the number of bail applications listed for each session, so as to ensure adequate time for legal representatives to take instructions, comprehensive interpretation of hearings in their entirety, and for consideration of greater volumes of evidence especially where the applicant has been detained long term. The number of bail hearings on a list may need to be reduced.
13. The number of bail hearings listed for each session should also be reviewed to ensure that decision makers have sufficient preparation time. There may be value in identifying those bail applicants who have been held in detention for more than 6 months, and listing them for hearing during sessions where fewer than six bail cases are to be heard.
Disclosure of evidence
14. Rule 51 (7) of the Tribunal Procedure Rules (“subject to s108 of the 2002 Act, the Tribunal must not take account of any evidence that has not been made available to all the parties”) should be rigorously enforced.
15. As a general principle the UKBA must fulfil its duty to assist the Tribunal and must therefore disclose all evidence upon which it relies to oppose release on bail. The Tribunal must use adjournments and directions to order disclosure where it is not forthcoming.
16. UKBA should append evidence for arguments made in a bail summary with the bail summary at the point at which it is served on the tribunal and the applicant in order to allow proper consideration.
17. The tribunal should use its existing powers to direct both parties to provide evidence and information, and its powers to grant bail in principle or to adjourn a hearing to allow for practical barriers to be dealt with. It can no longer be considered acceptable for the tribunal to avoid this responsibility by in effect ‘returning’ a person to detention where the option exists for the use of adjournment, directions to parties, and bail in principle.
Specific types of evidence
18. The Tribunal must provide written reasons for reliance on the SSHD’s opinion on risk of reoffending above any such assessment generated in the criminal justice system by NOMS.
19. The statutory restriction on the grant of bail to prevent future offending is inappropriate and should be repealed.
20. Where high risk of harm to the public on release is argued, the Tribunal should always seek clarification of which type of structured risk assessment and management system is being relied upon by the SSHD (the UKBA Harm Matrix removal prioritisation scoring system, or ‘serious harm’ in the criminal justice sense measured using OASys or similar), and require supporting evidence.
21. The Tribunal should not rely on unsubstantiated arguments in relation to adverse behaviour in detention on the part of the applicant so long as the information systems in use by IRC contractors and UKBA fail to distinguish between victim and aggressor in regular reporting, or consider mitigating factors such as mental illness.
22. Imminence of removal on its own should never be the sole reason for refusing release on bail. In order for removal to be considered imminent the Tribunal should always require evidence of a flight booking and written confirmation from an embassy or High Commission that they will issue a travel document within a specified time. Both the Tribunal and the SSHD should consider imminent removal only those removals that can take place within four weeks, in line with the UKBA’s own guidance.
23. Assertions of high absconding risk should be substantiated before the Tribunal in the face of Home Office findings of absconding rates of only around 10%, and the arguments of both parties in relation to absconding risk should be set out in any written decision.
24. Once a detainee’s licence period has expired, unless they are MAPPA nominals or there is a restraining order, Sexual Offences Protection Order or other ancillary order in place, their presumed level of risk of re-offending and risk of harm to the public on release should no longer be part of bail decision making without a fresh assessment using a recognised structured risk assessment process such as OASys.
25. Judicial decision makers in the First Tier Tribunal (IAC) should be provided at the earliest opportunity with expert training on the assessment and management of criminal risk, provided by NOMS, to include advice on the weight to give to aspects of risk assessment and which order in which to consider them, to ensure adequate risk management on release.
26. The Tribunal and NOMS should jointly determine how offender management information could best be provided to the tribunal once a Licence has expired.
27. All agencies must be prepared to work together to put safeguards in place where the genuinely highest risk individuals cannot be removed from the UK within a reasonable time and must therefore be released, since such individuals cannot be held indefinitely.
28. The UKBA must immediately comply with both the bail guidance and its own agreement with the National Offender Management Service in relation to disclosure of the NOMS1 form containing offender management information.
29. The NOMS1 form should be served on both the Tribunal and the representative alongside the bail summary on the day preceding the bail hearing. Where a bail applicant is unrepresented, the NOMS1 form should be provided directly to the applicant in the removal centre by fax along with the bail summary.
Moving detention cases towards resolution
30. The Tribunal Procedure Rules should contain a requirement that there must be a record of proceedings noting details of evidence presented, arguments made, directions given to parties, and detailed reasons for the decision to refuse release.
31. The Tribunal Procedure Rules should contain a requirement for all jurisdictions that, on application, all parties must be provided with a copy of the record of proceedings and judge’s note of evidence, as would anyway be required if the decision in question was to be subject to judicial review.
32. The Tribunal should take full advantage of its own complaints system to improve bail decision making, in consultation with stakeholders.
33. Written bail decisions should outline what further steps might need to be taken by either party in the case before a subsequent bail hearing or within a set time scale (for example, steps to be taken by either party in relation to a travel document application).
34. Written bail decisions should detail arguments presented by the UKBA and the applicant as well as the reasons for refusing bail.
35. The Refusal of Bail notice should be redesigned. At present the notice is structured to prompt inclusion only of negative information about the applicant that has prompted the refusal of bail, yet the Refusal of Bail notice may be relied on by UKBA or the higher courts without sight of findings during the bail hearing that are advantageous to the applicant.
36. The Tribunal should make greater use of its power to grant bail in principle pending the provision of further information to the Tribunal within 48 hours, especially where this concerns surety paperwork that can easily be provided, and where bail would otherwise be refused.
37. The Tribunal should make greater use of its power to adjourn bail hearings.
38. The Tribunal should make greater use of its power to give directions to parties. Directions should be noted in the Refusal of Bail notice and the judge’s record of proceedings.
39. The Legal Service Commission should ensure that there is no financial disincentive in the legal aid fee structure for providers of immigration advice to adequately explore issues relating to criminal risk and delays in the provision of UKBA Section 4 (1)(c) bail accommodation.
40. The statutory restriction on the grant of bail that relates to the mental health of the bail applicant should be removed. Immigration detention should never be used for the purpose of medical treatment.
41. The issue of a detainee’s mental health should be ‘neutral’ in relation to decisions in relation to release on bail.
- BID's Media Coverage
- Contacts for Media
- First UK study finds 200 children split from parents in immigration detention
- New rotas for IRC legal advice surgeries now released
- ECtHR judgment in Abdi, BID intervened. Finding of Art 5 breach, real though limited compensation for unlawful detention
- Foreign national offenders - government response to consultation on draft CPS code of practice on adult conditional cautions
- Parliamentary launch of new BID research 17 April. Event: 'Fractured childhoods: the separation of migrant families'
- Totally ignored: foreign national offenders and the introduction of a Payment by Results system for rehabilitation work
- Litigants in Person vs. Self-Represented Litigants: a view from immigration bail hearings in light of new guidance on terminology from the Master of the Rolls
- Latest version of UKBA travel document guidance, including timescales, now available here.
- BID's view on determinations of unlawful detention being moved to the First Tier Tribunal: an extract from our new research report 'The Liberty Deficit: long-term detention & bail decision making'
- Recommendations from BID's new report on bail decision making, 'The Liberty Deficit'
- New ILPA briefing on mental health & detention produced following BID and AVID meeting with Dept of Health & UKBA
- 'Getting real about risk: managing ex-offenders and release from detention', BID's AGM 22nd January 2013
- Detention in UK characterised as `detain first, ask questions laterí by BID's Director Celia Clarke in our Annual Report for 2012
- New UKBA guidance 'Standard paragraphs for bail summaries' December 2012
- Update on important legal cases
- BIDís legal advice in detention survey
- New BID research report on bail decision making and long-term detention, 'The Liberty Deficit: long-term detention and bail decision-making'
- MoJ consultation on code of practice for adult conditional cautions - BID submission on foreign offender conditional cautions
- Revised BID handbook on bail 'How to get out of detention' is out now
- Detainees' experiences of getting legal advice across the UK detention estate - new BID survey results out
- Mental health crisis in immigration detention - BID and AVID launch a new briefing
- BID letter in the Guardian on the need to respect human rights for foreign national ex-offenders
- BID raises concerns about new HMIP approach to immigration detention inspections
- BID intervenes in Home Office challenge to limit private law claim for unlawful detention
- Former client of BID granted refugee status
- Former IAS clients - how to obtain files and original documents from the administrator. There is a deadline of 28th May 2012 for retrieval.
- Discriminatory attempt to use criminal justice provision to effect immigration control in Legal Aid, Sentencing & Punishment of Offenders Bill
- NEW BID Travel Document Project briefing on 'Cooperation & Removability', including practical steps, and criminal sanctions (s35 prosecutions) and 'reasonable excuse'
- Bailed detainees - how to make an application for S4 bail accommodation and support once released if a private accommodation arrangement breaks down
- NEW leaflet 'Accomodation and Financial Support on Release' for detainees, from BID and the Ex-Detainee Project at Dover Detainee Visitor Group
- ILPA & BID joint response to consultation on new bail guidance for immigration judges
- Prisons Inspector criticises UK Border Agency for holding too many pregnant women in detention
- New LSC legal surgery rotas available here
- Inspectorate report on UKBA and foreign national ex-offenders
- Refugee Children's Consortium briefing - current situation around immigration detention of children & the new family returns process, Sept 16th 2011
- Latest (2011) version of UKBA's Emergency Travel Document timescales and requirements now available to download from BID website
- Superceded 2003 bail guidance for adjudicators along with timeline of use - for reference
- Link to urgent advice for clients of IAS (Immigration Advisory Service) from the administrator
- Revised immigration bail guidance for immigration judges released by President of the First Tier Tribunal of the Immigration & Asylum Chamber.
- Latest BID & ICAR survey finds detainees now less aware of the free 30 minutes legal advice scheme in IRCs, and 32% of those using the DDA scheme wait one week or more for appointment
- UKBA's Emergency Travel Document timescales and requirements now available to download from BID website (2010 version)
- Judgment handed down on unlawful detention of foreign national ex-offender after the Home Office failed to carry out regular detention reviews as required - SK (Zimbabwe) v SSHD
- BID has published new research on detention of children
- UKBA have disclosed the 2010 Returns Group Documentation Unit (RGDU) ETD Country Reference Guide after a BID FOI request
- BID now on Twitter - follow BID's work and news from the world of detention
- BID's comments to Independent Chief Inspector of UKBA on forthcoming joint and thematic inspections - immigration casework and Detained Fast Track
- Outcry! partnership between BID and The Children's Society on child detention comes to an end
- BID is looking for new Trustees to join our Board - Treasurer post, and people with fundraising & communications experience
- Judgment handed down on unlawful detention of mother separated from her children
- BID needs a Media & Communications volunteer for our research and policy office in London. Contact us now!
- New podcast from Harriet Grant for The Guardian on the detention of foreign national ex-offenders
- BID publishes a new bulletin 'The right to legal aid for bail applications'
- BID & ICAR survey shows 19% of detainees interviewed never had any legal advice while in detention
- OutCry! response to Nick Clegg's announcement on the detention of children
- BID is the 2010 winner of the JUSTICE Human Rights Award
- Outcry! briefing outlining concern about new proposed methods of forcibly removing families
- BID & ICAR new survey on level of legal representation among detainees across the detention estate Nov 2010
- New BID bulletin on Section 4 applications for bail accommodation November 2010
- Immigration detainees failed by bail process - new BID report
- BID and The Children's Society comment on child detention figures