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In response to an FOI request from BID, UKBA have now disclosed the 2010 Returns Group Documentation Unit (RGDU) Emergency Travel Documentation Country Reference Guide.  This document lays out information held by the UKBA on documentation procedures and requirements for specific countries, and the expected timeframe for embassies and High Commissions in the UK to process travel document applications.  The document is now available on BID's website. 

BID has always maintained that legal advisors must be able to assess whether or not the length of detention and the purpose for which detention is being used have become unlawful in any individual case. 

We believe it is essential that evidence regarding the timescales and the procedures that need to be followed in the travel documentation process are openly available if a proper assessment is to be made in any individual case regarding the steps that a detainee can reasonably be expected to take for documentation, the steps the UKBA may have failed to take, and the period of time that is usually required for the documentation process to be completed for specific foreign missions in the UK.

BID is currently carrying out research into the travel documentation process and will shortly be publishing online practical guidance for legal representatives and unrepresented detainees. 

Bail for Immigration Detainees has long standing and serious concerns about the human consequences, including unlawful detention, that result from the inadequacy of the documentation process, particularly for individuals claiming to be or believed to be nationals of particular countries.

The impact of inadequate and prolonged documentation procedures is particularly worrying in the case of people held in immigration detention because these individuals have lost their liberty and may continue to be deprived of their liberty while attempts proceed (or not) to obtain travel documents.

Where individuals cannot be re-documented they may face long periods in immigration detention or prison, sometimes amounting to years, in what becomes de facto indefinite detention, with consequences for both the public purse and their own wellbeing.

In addition there are performance-related concerns about the UK Border Agency’s handling of travel document applications. In 2009 the National Audit Office recommended that the Agency should “increase the use of Emergency Travel Documents and introduce a fast-track process for obtaining documents for those in detention.” John Vine, the Independent Chief Inspector of UK Border Agency has acknowledged that difficulties with the documentation process continue to play a role in the setting and achieving of asylum conclusion targets for UKBA.

Delays in obtaining travel documents are the one of the most common factors contributing to long term detention. A sizeable proportion of foreign nationals in immigration detention have no travel documents, having entered the UK without documents or with false documents, or having later lost or destroyed them. The cooperation of both foreign missions and immigration detainees is required in order to identify the individual as the national of a country and issue new travel documents for the purpose of removal. However, both missions and individuals may withhold or delay co-operation with the redocumentation process for a variety of political and personal reasons. Where individuals cannot be documented they may face long periods in immigration detention, sometimes amounting to years, in what becomes de facto indefinite detention, with consequences for both the public purse and their own wellbeing.

BID’s casework experience suggests that the course of the redocumentation process as managed by the UKBA is routinely characterised by lengthy delays and failure to progress cases. The non-proactive approach of the UKBA to documentation contributes to delays in case progression and extended - effectively indefinite – detention in some cases.

The UKBA has a duty to apply what are known as ‘Hardial Singh principles’ to ensure that detention is permitted only for the purpose of removal within a period reasonably necessary for that purpose. The UKBA also has a duty to comply with Article 5 of the ECHR and act with 'due diligence' in ensuring that a deportation or removal is effected so as to end detention as early as possible. However, BID’s experience is of insufficient and infrequent enquiries on the part of UKBA to foreign missions in the UK to progress documentation in many cases.

John Vine, the Independent Chief Inspector of UK Border Agency announced in 2010 that his office will be examining the UKBA’s use of travel documents as part of a future inspection. BID welcomes this and we have shared our concerns in this area with the Chief Inspector.

Basic information on evidentiary requirements for travel documentation is currently not always shared internally between UKBA caseowners and the various units within UKBA that handle documentation. BID has found discrepancies in individual cases between UKBA bail summaries presented to the Immigration and Asylum Chamber (formerly the Asylum and Immigration Tribunal) stressing the imminence of documentation and hence potential for removal, and the UKBA’s internal correspondence on the same cases (revealed by our Subject Access requests for case files) which shows by contrast that documentation and hence removal is not currently possible. These discrepant positions on the part of the UKBA in individual cases resulted in unnecessarily extended and possibly unlawful detention for these individuals.

Practical barriers to obtaining evidence of identity from a country of origin for long-term residents of the UK (whether here lawfully or not) are not routinely acknowledged by the UKBA and may be characterised as a lack of cooperation with the documentation process. Obtaining evidence of identity such as a birth certificate from fragile states or less developed countries can be difficult, and is highly likely to require some form of payment. Obtaining evidence from overseas while in immigration detention is especially difficult.

Detainees are given little or no guidance from the UKBA on the steps they might take to expedite the documentation process in a timely manner and thus end their detention. Our casework experience suggests that foreign national ex-offenders face particular difficulties with documentation, especially those who have lived in the UK for several years or since early childhood and who may have particularly weak ties with their country of origin and problems obtaining evidence of their life in their country of origin. This cohort includes detained long term UK residents whose Indefinite Leave to Remain is revoked consequent to deportation action.

For further information please contact:Dr Adeline Trude, Research & Policy Manager, BID