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Futile detention

Jamie Beagent, partner in the Human Rights team at Leigh Day, explores the reasons behind the length of administrative detention of Foreign Nationals. 

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Jamie Beagent is a partner in the Human Rights department who specialises in judicial review and public law. Follow Jamie on @jamiebeagent.

Yesterday the Chief Inspector of Borders & Immigration published a damning report highlighting what has long been known by those caught up in the UK Government’s mass internment of foreigners and the few voices that stand up for them.

In An Inspection of the Emergency Travel Document Process, John Vine (CBE QPM) draws attention to the Home Office’s indiscriminate detention of Foreign Nationals (many, but not all, former offenders) for months and years where there is no prospect of their removal from the UK.

As the title suggests, the problem with returning these individuals to their home countries is obtaining an official document or passport from the authorities in their country of origin (and Emergency Travel Document or “ETD”).

Mr Vine expresses his concern that:

Despite recommendations that I have made previously…the Home Office [is] still keeping foreign criminals, who have completed their prison sentences, in immigration detention for months or even years.

In a sample of cases studied in the report, the average length of administrative detention was in excess of 18 months (the equivalent to a 3 year prison sentence).  Leigh Day’s experience bears this out.  The people we represent in applications to the Court’s for release have often been detained in excess of 2 years.  We have also successfully secured the release of individuals detained for over 4 years in administrative detention.  This at a cost of £165 per night to the tax payer (or nearly a quarter of a million pounds in one Leigh Day case, on top of the large 5 figure sum of damages subsequently awarded for false imprisonment).

The Home Office routinely alleges that such individuals are not complying with the removal process.  However, this is typically a lazy excuse. We commonly see cases where people have provided every type of personal detail that could be asked for, have provided documents evidencing their identity, yet simply because the Home Office are unable to persuade their home country to accept them back, they are alleged, month after month, to not be cooperating with the removal process. This Kafkaesque stance by the faceless officials of the Home Office can have a devastating impact on the mental health of such detainees. Self-harm, hunger-strikes and suicide attempts are all too common.

While the people caught up in this cycle of indefinite detention usually have no legal right to remain in the UK, the reasons they cannot be returned to their home countries are usually related to intransigence on the part of the part of the authorities those countries – they simply do not want these people back.  That may be because they are minorities (political or ethnic) who are discriminated against, or simply because they are impoverished emigrants who the receiving country have no interest in seeing returned.

The English Common Law is clear on this issue, where there is no realistic prospect of removal within a reasonable period of time, administrative immigration detention is illegal. The European Convention on Human Rights follows the English Common Law, detention without lawful justification is unlawful.

Leigh Day represents numerous immigration detainees securing both their liberty and, where appropriate, compensation for false imprisonment.

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