Immigration Detention: One Step Forward, Two Steps Back — Sophie Walker
19 March 2018
New legislation significantly curtails accommodation provision for those seeking release from immigration detention. The likely result is more and more people being held in immigration detention.
The fight to end to indefinite detention of immigrants pending their removal from the UK has been gathering momentum. There have been parliamentary debates and expert reports, all critical of the Home Office policy of what effectively involves ‘warehousing’ immigrants in cramped and often unsafe conditions with no end in sight.
While there is no legal maximum for how long someone can be held in immigration detention, the Home Office can only use their power to detain if they intend to remove the person and can do so ‘within a reasonable period’. If at the outset it is apparent that the person cannot be removed within a reasonable period they should not be detained at all. If it becomes apparent once detention has commenced that the person cannot be removed within a reasonable period, then the person should also be released. In addition, the Home Office should exercise appropriate diligence in their efforts to remove the person.
Despite these well-established restrictions on the power to detain, men and women are still held in detention centres for extended periods of time. In March 2018, a report by HM Inspectorate of Prisons of Harmondsworth Immigration Removal Centre found that 23 men had been held for over year, and one man had been held for four years.
Despite many instances of lengthy periods of immigration detention, one of the main methods of achieving release of long-term detainees via immigration bail has now been curtailed. Under Section 4(1) of the Immigration and Asylum Act 1999, detainees could apply for the Home Office to provide them with accommodation if they were unable to rely on a friends or family for housing. Armed with a letter from the Home Office confirming the accommodation was in place, a detainee had a much stronger chance of being released on bail.
Not anymore. On 15th January 2018, Schedule 10 of the Immigration Act 2016 was introduced. It repealed and replaced Schedules 2 and 3 of the Immigration Act 1971, bringing with it sweeping changes to immigration bail, as well as repealing Section 4(1) of the Immigration and Asylum Act.
Section 9(2) of the Schedule 10 provides that “the Secretary of State may provide or arrange for the provision of, facilities for the accommodation of that person at that address” if the following conditions are met:
- “A person is on immigration bail subject to a condition requiring the person to reside at an address specified in the condition”: s.9(1)(a)
- “The person would not be able to support himself or herself at the address”: s.9(1)(b)
- There are “exceptional circumstances” to justify it: s.9(3)
Guidance on Immigration Bail published 12 January 2018 by the Home Office limits a finding of “exceptional circumstances” to cases that fall within three narrow categories: people granted bail by the Special Immigration Appeals Commission (SIAC), foreign national offenders considered high risk or very high risk of causing serious harm to the public or at high risk of offending against the individual, and where the failure to provide accommodation will amount to a breach of Article 3.
What this will mean
These changes mean it is considerably more difficult to obtain release for immigration detainees and will result in ever more people being held for long stretches of time.
Here are some reasons why.
First, the new legislation requires the tribunal to grant bail on the condition that the Home Office will provide accommodation. But immigration tribunal judges tend to only grant bail when accommodation is already in place. In bail hearings, if it often argued on behalf of the Applicant that s/he is a low absconding risk as friends and family will encourage and put pressure on them to remain in contact with the Home Office. These arguments lack force if there is no way of knowing where the Applicant will live and how often they can see their friends and family.
Second, the Home Office Guidance states that accommodation will only be provided for a limited period of time (around 3-4 months) unless there are exceptional circumstances to justify it continuing. An immigration judge may be unwilling to grant bail without a plan in place for where the Applicant will live when s/he is no longer eligible for accommodation support.
Third, the Home Office considers that the threshold for when Article 3 will be engaged is high. The Guidance accepts that accommodation support will be provided where the failure to do would amount to a breach of the prohibition on inhuman or degrading treatment. In the case of R (Limbuela) v Secretary of State  UKHL 66, it was held that in ordinary circumstances, a decision to deny a person accommodation who is then forced to sleeping rough without food or shelter, amounts to inhuman or degrading treatment. However, the Guidance sets the bar for when the Home Office will consider Article 3 much higher than the House of Lords in Limbeula, stating it “only expected to cover people with serious physical or mental health problems who would not otherwise not fall to be supported under other agreements” (p. 51). Those detainees able to meet such a standard will be few and far between.
Fourth, it is now even harder for detainees with a criminal history to obtain bail. A case will only give rise to “exceptional circumstances” if the person has been assessed by probation as being a high risk or very high risk of causing serious harm to the public, or to be at high risk of reoffending. The majority of those who have served time in prison will not fall within these categories – they are reserved for the most serious of offenders. It may also present difficulties to representatives who may be placed in a position of having to argue that their client is at very high risk of causing serious harm to the public or at high risk of reoffending when applying for accommodation support or bail, but then having to argue the opposite in the person’s immigration appeal. For those convicted of most drug offences, dishonesty offences such as fraud and low-level offences of a violent or sexual nature, they will be unlikely to be eligible for accommodation. The same is true for detainees who do not have criminal history.
If the Home Office cannot show that a detainee’s removal is likely within a reasonable period, and yet the detainee is not able to provide a suitable bail address (either because probation have not authorised release to that address, or where the person has no friends, family or community support), then they are unlikely to be released. But as the power of detention will no longer be being exercised in order to remove that person, but rather because of the lack of available accommodation, their continued detention is highly likely to be rendered unlawful.
Such a suggestion receives support from a recent High Court case, albeit one under the old legislative regime. In R (MS) v Secretary of State for the Home Department  EWHC 2797 (judgment on 10th November 2017), Mr Martin Griffiths QC stated:
I do not think that detention could be justified simply on the basis that release would place the Claimant on the streets. If it is unacceptable to place the Claimant on the streets, he should be provided with bail accommodation. Detention is not a proper substitute for such accommodation once detention cannot otherwise be justified (para 79).
The latest legislative changes limiting the provision of accommodation support for detainees demonstrate that the Home Office has yet to be swayed by those calling for the UK to radically reduce the numbers held in immigration detention. However, given that the latest Home Office guidance addressing the changes to immigration bail raises more questions than it answers, this is an area that will no doubt be subject of judicial attention in the not too distance future.
Sophie Walker is a barrister practising immigration law at One Pump Court Chambers.