The Independent Chief Inspector of Borders and Immigration (ICIBI) second report on the Adults at Risk (AAR) Policy is a 126-page damning critique of the Home Office’s operation of the immigration detention system, with a particular focus on the treatment of vulnerable adults. The inspector addressed a number of issues that BID’s clients routinely faced.
Foreign national ex-offenders
The report was particularly critical of the Home Office’s approach to detention of people who have previously committed criminal offences. It was particularly telling that the report documents a senior civil servant telling inspectors that: “FNOs have a particular reputational resonance and risk, in a way that even British nationals don’t… That all goes back to the fact that incorrect decisions lost the Home Sec [Secretary] his job in the past”.
This demonstrates the enduring legacy of the ‘foreign prisoners scandal’ – where a number of foreign national ex-offenders were released without being considered for deportation. Not only was a Home Secretary forced to resign, it led to the UK Borders Act 2007 being rushed through parliament (an incredibly draconian piece of knee-jerk legislation that introduced automatic deportation). It also subsequently led to a secret blanket Home Office policy to use immigration powers to automatically detain all foreign nationals at the end of their criminal sentence, a policy subsequently ruled unlawful by the UK Supreme Court in the case of Walumba Lumba ( UKSC 12).
It is however evident from the Inspector’s report that despite the Lumba case, the memory of the ‘foreign prisoners scandal’ still has a grip on institutional culture and individual decision-makers at the Home Office. Not only was this scandal 15 years ago, it was artificially exaggerated and largely the result of media and political figures playing on racialised fears of ‘foreign criminals’. The fact that it still exerts undue influence on Home Office culture – and policies and practices that deny basic rights to those categorised as FNOs – is gravely concerning.
Related to this, the report evidences an institutional assumption that FNOs will be detained at the end of their sentence – undermining the presumption in favour of liberty. This view was expressed by one probation officer quoted in the report, showing the harmful and self-defeating way this can interfere with the Probation Service’s supervisory mechanisms:
“You may have an FNO approaching conditional release date, and you see an automatic knee-jerk reaction [from the Home Office] – IS91 [a decision to detain] – where the Offender Manager has secured them an Approved Premises bed, with highest level of supervision available, to ensure compliance with licence conditions … That is a lot of work that gets scuppered. It’s bonkers. This person isn’t going to be removed.”
The manner in which the immigration detention system and its sluggish caseworking processes interfere with the Probation Service was documented in more detail:
“The difficulties faced by TSFNOs who require specialised accommodation are often caused by slow decision-making at the point at which it is confirmed they will be further detained under immigration powers. This detention decision can mean that an opportunity for release with effective management in the community is missed (as NPS arrangements for supervision upon release are then undone; when/if the TSFNO is later released, either these arrangements have to be worked up from scratch, or, if the licence period has ended, the opportunity for management in the community has been missed entirely).”
It is evident that detention on the grounds of preventing harm or reoffending is particularly self-defeating and not in the public interest where it means that the individual will be released without the supervision of the Probation Service.
Inadequate risk assessment processes
Assessments of risk are key to the decision to detain and it is generally much more difficult for those designated as posing a high risk of harm to be released from detention. The inspector criticised the Home Office’s risk assessment processes. The assignment of risk is key to the decisions to detain and what length of detention would be considered reasonable. However, “inspectors found no specific guidance for caseowners on how to conduct a professional and coherent risk assessment”.
HMPPS’ guidance for assessing risk of serious harm is a detailed, 52-page document that highlights the complexity of making risk assessments and uses sophisticated actuarial risk assessment tools to make predictions of risk. By contrast, the Home Office process for assessing risk is strikingly simplistic and rudimentary and as such it does not serve to meaningfully protect the public interest. In our experience it is rarely based on anything more than previous offending, and the judge’s sentencing remarks. The difference in approach reflects the fact that only one of these bodies has the remit and expertise for assessing risk.
“Inspectors found that the failure to obtain crucial risk assessments, and the absence of engagement with HMPPS and NPS, meant caseowners were unable to demonstrate that detailed consideration had been given to salient factors influencing a decision to detain or release. In some cases, caseowners inappropriately based assessments of risk on the length of a sentence, and in other’s they confused the high risk of reoffending assessment with the risk of harm assessment, leading to the incorrect classification of “low harm” offenders as “high risk”. Inspectors saw a systematic disadvantage for some TSFNOs assessed inaccurately as “high risk”.
Equally, the ICIBI criticised the way that the Home Office assesses risk of absconding, as
“Inspectors found limited evidence in the case files reviewed as to how the risk of absconding was assessed, with assessments too often focusing solely on the method of entry into the UK or on the conviction without a holistic consideration of all of the factors influencing the decision to detain as outlined in the guidance”
We welcome the ICIBI’s findings. BID has frequently criticised the Home Office’s risk assessment processes and questioned the authority and competence of the Home Office to make assessments that should be the responsibility of the Probation Service.
The inspector also found that Home Office caseworkers were not obtaining risk information or OASys reports from probation officers. In a sample of 52 cases where the individual had received a sentence of 12 months or more,
“In 45 (86%) of these 12plus month cases, inspectors found no reference to an OASys report or a record of any engagement with either the Home Office’s embedded probation officers, the community Offender Manager, or any HMPPS staff.”
“A review of the CID notes in the reviewed cases showed a lack of requests for OASys reports by caseowners.”
Detention in prisons
The Chief Inspector criticised the treatment of those detained under immigration powers in prisons. He found that there continued to be a difference in treatment between those held in IRCs and those in prisons, and that progress on that work had been ‘too slow’. Safeguards for vulnerable adults clearly did not work as well in prisons. The inspector found that ‘CID’ case notes were ‘far sparser’, because:
“as the mechanisms by which the Home Office would access such information on the condition of individuals in the detention estate – via DET engagement, Rule 35 reports, or Part Cs – either did not apply to TSFNOs in prisons or prison staff were unaware of the available mechanisms.”
In addition, the inspector found that prison staff who would be most likely to identify vulnerability were more likely to use existing prison mechanisms, because of the overarching principle that the prison system is constructed in such a way as to manage vulnerability, rather than consider the suitability of continued detention.
Home Office engagement with those detained in prisons was identified as poor, and prisoners described engagement with Home Office teams as ‘limited and irregular’. The words of one prison officer quoted in the report were particularly illuminating:
“Once a man is time-served, on an immigration warrant, quite frankly he gets forgotten about until we get the next update [on his immigration case].”
This reflects the findings of the Independent Monitoring Board which found that the Home Office refusing to engage with prisoners in HMP Maidstone, and that this was a “major cause of stress and anxiety leading to self-harm”.
Late notification that a foreign national serving a prison sentence will be detained on their release date continues to be a problem, even though this practice is a known trigger for increasing the risk of suicide and self-harm, as in the tragic death of Michal Netyks in 2017, who died just hours after being told on the day of his release that he was going to continue to be held in prison under immigration powers.
Inspectors requested criteria for deciding whether detention should take place in a prison or an IRC, but the Home Office stated they could not disclose it as it was being ‘revised’.
Although the conditions in prison during the pandemic were referred to, we felt this should have been explored in more detail. Since the beginning of the pandemic, people held in prisons have been locked in their cells for over 22 hours a day, most often 23.5, with people sometimes being held in their cells for days at a time and unable to take a shower, in conditions often amounting to prolonged solitary confinement. For immigration detainees, the indefinite nature of this treatment, and the fact that many have pre-existing mental or physical health problems or have experienced torture create additional risk factors.
Culture of ‘scepticism’:
Along with many organisations we have consistently argued, on the basis of the experiences of our clients, that a culture of disbelief pervades Home Office decision-making. This report is helpful in showing the detail and the processes through which that culture operates – a culture that Wendy Williams identified in her Windrush Lessons Learned Review as being in desperate need of reform. The inspector speaks of a “culture of scepticism” and states how conversations with Home Office caseworkers have what appears to be an unhealthy and unreasonable preoccupation with ‘abuse’ of the system, which leads to failure of decision-making. For instance, in relation to consideration of Medico-Legal reports, the Inspector notes that:
“All too often, their principal concern was the perceived abuse of the system, for example of Medico-Legal Reports, which coloured how staff at all levels thought about detainees and the safeguarding mechanisms which existed in the AAR policy.”
The report found that although the view that the safeguards were being abused was “widely held” within the Home Office, the evidence to support this view was lacking – that “the Home Office and inspectors had different perceptions as to the volume and depth of the evidence presented.”
At various points the report demonstrates the practical failings at the Home Office that lead to people being held for unreasonably and unnecessarily long periods.
Part of this is due to slow caseworking which the inspector criticised at various points throughout the report.
Another cause was a lack of suitable release accommodation: “A shortage of suitable bail and asylum accommodation meant even those TSFNOs whose release had been authorised in principle by the Home Office or by an immigration judge remained in detention for extended periods of time before appropriate housing could be secured.” BID has long been calling for the government to fix the system for allocating and sourcing release accommodation for immigration detainees, and we were previously involved in a successful legal challenge to the Home Office’s Schedule 10 accommodation policy. Delays in provision of accommodation for people who have already been granted bail are an incredible source of anguish for our clients, but the additional days in detention and the unlawful detention claims they give rise to are costly for the government. The ICIBI requested data on the length of time between a detainee being granted bail in principle and being released, but this was rejected because the information was not held.
The report reflected BID’s persistent concern that where detention is prolonged by accommodation issues, it is often the Probation Service, or the lack of communication between the Home Office and probation, that bears some responsibility.
“Accommodation for detainees remained a significant barrier in releases, even for level 3 AAR [Adults at Risk] cases, with progress on these referrals rarely clearly documented. This finding applied both to releases to a private address, particularly in cases in which release addresses required approval from the Probation Service, and to cases in which the Home Office was under a duty to provide bail accommodation”
The ICIBI also stressed that, in the case of people who have previously committed offences, part of the problem relates to a “blinkered approach to cases which require nuance”.
These are practical failings at the Home Office, none of which are capable of justifying long term detention. They are allowed to arise because there is no time limit or judicial oversight of the decision to detain.
 See HMPPS “Risk of Serious Harm Guidance 2020” https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/897166/rosh-guidance-2020.pdf  IMB National Annual Report 2020-21, https://s3-eu-west-2.amazonaws.com/imb-prod-storage-1ocod6bqky0vo/uploads/2021/09/2021-09-23-IMB-National-202021-Annual-Report-FINAL.pdf  Stephen Shaw, in his government-commissioned 2016 review into immigration detention found that the practice of serving decisions to detain at the last minute in this way had been criticised by staff at different prisons ‘not least in terms of the potential risk of self-harm’.