This ‘rapid response’ research review has been commissioned by UKAJI and prepared by Oliver Marshall. It is the first of our ‘What do we know?’ series of reviews and seminars exploring the research evidence on specific timely topics.

The issue of time limits for ‘administrative detention’ has received attention recently in the media and among campaigners, and a debate is scheduled in the UK Parliament for 10 September. UKAJI commissioned this review as a ‘rapid response’ in order to inform that debate.

The review focuses on indefinite immigration detention in the UK under administrative powers. It draws attention to numerous studies which provide evidence of the financial and human cost, and haphazard nature, of immigration detention. It concludes, however, that there is no clear evidence base to support the current policy of permitting indefinite detention.

by Oliver Marshall

Introduction

In March 2015 the UK’s All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration (APGR/M) published their ‘Report of the Inquiry into the Use of Immigration Detention in the United Kingdom’. The APGR/M found the system of immigration detention “expensive, ineffective and unjust” and called for “wholesale change” to the practice. The inquiry’s findings will be debated in Parliament on 10 September 2015.

One of the APGR/M’s four key recommendations is that there should be “a time limit of 28 days on the length of time anyone can be held in immigration detention”. Furthermore, the report argues that decisions to detain should be “very rare” and that “detention should be for the shortest possible time and only to effect removal”.

The issue

The Return Directive (Directive 2008/115/EC), formally adopted by the European Parliament and the Council on 16 December 2008, states that, “Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.”[1] The UK is not bound by all the conditions of the Directive and remains the only EU member where there are no time limits for individuals being detained under immigration administrative powers. (Denmark and Ireland were also not bound by the entirety of the Directive, but in both countries immigration detention is subject to regular judicial review.)

The scale of the issue

What is commonly referred to as “the detention estate” – specifically immigration removal centres (IRCs) – has expanded steadily over the past two decades. IRCs were originally conceived of as places where people being “removed” from the UK could be held for a few days, or perhaps weeks, while final arrangements were made for their departure. It has been argued that the purpose behind IRCs gradually changed from assisting the departure process to being “administrative tools to prevent absconding”, “disciplinary tools to force cooperation” and even “punitive” tools to protect public order.[2]

In 1993 there were just 250 places available, with the number of places steadily rising to 2,665 by the end of 2009, shortly before the Conservative/Liberal Democrat coalition took office. By early 2015 the capacity was 3,915 with the number set to rise. By September 2014 there were 3,378 people in detention, while 29,492 people had entered detention during the previous 12 months (APGR/M, p. 15).

There are now 11 designated IRCs, four residential and short-term holding facilities and one non-residential short-term holding facility. Of the IRCs, four are managed by the HM Prison Service, while the others are outsourced to private companies including G4S, GEO Group, Mitie and Serco. Conditions at IRCs resemble those of criminal incarceration, something acknowledged by their falling under the mandate of the HM Inspectorate of Prisons. As with prisons, the Inspectorate makes unannounced visits to IRCs, reporting and publishing their findings.

During the period from December 2008 to June 2013, approximately two-thirds of those held under immigration powers were detained for less than a month (Silverman and Hajel, 2015: p. 4). If not “removed” from the UK, people may be released back into the community with or without conditions (such as bail).

The number held for longer than a year is relatively small – less than one percent of the total number of detainees: at the end of the third quarter of 2014, 50 people had been detained in IRCs for between one year and 18 months, 22 between 18 months and two years, 14 between two and three years, two between three and four years, and two people had been detained for more than four years (APGR/M, 2015: p. 21).

This relatively small number of individuals who are held for over 12 months downplays the significance of the issue: regardless of the length of time someone is ultimately held in detention, no one detained under immigration powers will know how long they will ultimately be held for. This uncertainty has a major impact on detainees’ lives – and those of their families. This has been highlighted repeatedly, including by the charity Medical Justice in relation to victims of torture:

“In the experience of Medical Justice, victims of torture are routinely detained. This is particularly problematic because this population often suffers both the mental and physical effects of their torture for many years afterwards. This, coupled with the trauma of being detained for an indefinite time period, the limbo of their legal status, the specific medical needs of this vulnerable population, language difficulties and isolation from a community can all be highly damaging and/or injurious to one’s health.”[3](p. 4)

Detention following imprisonment

In April 2006, following media criticism of the Home Office for the apparent failure to deport foreign ex-offenders on completion of their prison sentences, those foreign ex-offenders who had received prison sentences of over 12 months were liable for continued detention under immigration powers.

Since late 2014, 10% of those detained under immigration powers have been held in prisons, usually after serving a custodial sentence (APPGR/M, 2015, p. 13). Ex-offenders are also frequently transferred to IRCs with a view to removal from the UK. Since 2009, over 4,000 foreign ex-offenders have been deported annually.[4] How long ex-offenders remain in detention is not clear from the literature.

“Foreign offenders”, states the criminologist Mary Bosworth, “have limited numbers of supporters either in prison or in the community outside their immediate family.”[5] The issue of ex-offenders – especially relating to those guilty of serious offences, such as rape, murder and manslaughter – is rarely highlighted, especially by charities and other NGOs. Unsurprisingly, Migration Watch is an exception, having consistently argued that arrangements for the deportation of “foreign criminals” have been used “haphazardly and unsatisfactorily”.[6]

The report “Detained lives: The real cost of indefinite detention” (2009), produced by the London Detainees Support Group, is an early example of thorough qualitative and quantitative evidence provided by a campaigning organisation. It highlights the plight of foreign ex-offenders detained on an indefinite basis under immigration powers.[7] The report’s qualitative-based evidence was obtained from interviews with detainees who had completed prison sentences – though none had committed serious offences and many had been imprisoned for immigration-related offences such as using false documents. The report argues that detention is both discriminatory and ineffective as some ex-offenders are effectively “undeportable” when another country is unwilling or unable to accept them:

“Some British ex-offenders are at a high risk of re-offending, yet their release from prison is not dependent on proving complete rehabilitation. However, the immigration system, with its elusive aim of complete and perfect immigration control, aims to exclude absolutely the possibility of foreign nationals re-offending. Stateless people frustrate this aim. Since they cannot be deported, indefinite detention becomes the improvised alternative.” (London Detainees Support Group, 2009: p. 30)

Financial cost

The average cost of detaining a person at an IRC for one year in 2013/14 was £36,026, or £98 per day (APPGR/M, p. 21). This figure does not include the compensation that was paid out for unlawful detention. Defenders of the status quo might claim that there would also be significant costs for maintaining an individual subject to immigration powers who was not living in an IRC given that these individuals invariably are forbidden from working. Such an argument, however, does not seem to be made which suggests, perhaps, that the cost of detention is considerably higher.

As far as efficiency (and therefore cost), the lack of time limit for individuals was found by the APGR/M (2015: p. 19) to be “itself an incentive to poor case-working: the lack of any external pressure to complete cases within a set time-frame led to sloppy practice.” Indeed, statistics reveal that ‘the longer an individual is detained, the less likely it is that the person’s detention will end with their removal from the UK.”

It is difficult to identify a single item of research, whether produced within an academic framework or by campaigning groups, that is supportive of the concept of indefinite detention. As the APGR/M found, this is because the system cannot be justified both in terms of the effects on the individuals detainees and their family members, but also on grounds of efficiency and cost. These concerns might be expected to be addressed even by organisations that are skeptical of immigration, such as Migration Watch and the Taxpayers’ Alliance, but they are not.[8]

Evidence gaps and limitations

Conducting research in (and about) detention centres and prisons presents obvious challenges, most notably negotiating cooperation from detainees and ex-detainees (many of whom will have been “removed” from the UK) and access to the institutions. The institutions – not least those that are privately operated – are likely to be suspicious of the motivation of researchers, whether academics, representatives of NGOs (both charities and campaigning organisations), or members of parliament conducting their own research.[9] Despite challenges, researchers have managed to gain access to detainees, or have made use of interviews conducted by campaigning bodies, such as detainee support organisations.[10] Academic researchers have been able to conduct interviews with representatives of the Ministry of Justice and the IRCs.

In addition to qualitative interview based research, researchers have also drawn from publicly available data on immigration detention including publications produced by the Home Office, the Office of National Statistics, Her Majesty’s Inspectorate of Prisons (HMIP) and Hansard texts of Parliamentary debates and formal questions.

Given the challenges, the quality and range of research outputs is wide ranging and impressive. Nonetheless significant gaps exist. Silverman and Hajel (2015, p. 5) identify specific evidence gaps and limitations: “For example, information on the ethnic origins of the detainees is often difficult to determine. It is also difficult to track individual trajectories of detention, release and re-detention through the statistics because they are presented as separate numbers of occurrences. Such evidence gaps and limitations are important in discussions about how to access immigration detainees and provide them with services such as translation and visits.”

In marked contrast to the numerous studies that critically examine the financial and human cost, effectiveness and haphazard nature of immigration detention, it is not clear upon what evidence base the UKBA and the Home Office rely in order to support the current policy of permitting indefinite detention.

[1] For a recent critical analysis of the implementation, across Europe, of the Return Directive, see Manieri and LeVoy (2015).

[2] Majcher and Senarclens (2014)

[3] Tsangarides (2012) p. 4.

[4] On “removals”, see: Blinder (2015).

[5] Bosworth (2011) p. 20. See also Bosworth (2014). For an interesting ethnographic study of immigration detainees (and ex-detainees) facing deportation, see Hasselberg, Ines, (2014).

[6] See, for example, Migration Watch (2006) and Mitchell (2010).

[7] The report “Point of no return: The futile detention of unreturnable migrants”, (Flemish Refugee Action, Brussels: 2014), based on the stories of 39 “unreturnable” migrants in Belgian, France, Hungary and the UK, also refers to the issue. Travel documents can be impossible to obtain, but even then people can be accused of “non-cooperation” and therefore subject to continued detention.

[8] Migration Watch (MW) takes a strongly skeptical position on the value of immigration, but I have not identified a MW briefing paper dealing with IRCs and the cost of detention. Though less focused on immigration, the Taxpayers’ Alliance (TA) suggests that immigrants are often a financial burden to the UK. While the TA highlights financial inefficiencies in government spending, the cost of IRCs and factors that can lead indefinite detention have not been addressed by them.

[9] See the account of the MP Catherine West who tried (and failed) to gain access to the women-only Yarl’s Wood IRC; West (2015).

[10] As well as interviews, a striking contribution from detainees themselves has been through a photographic project organised by Nana Varveropoulou. (Although detainees held at IRCs are allowed mobile phones, phones cannot feature a camera. As such, apart from the visitors’ centres and interview rooms, visitors and legal representatives cannot view the prison-like conditions.) For a background to the project, see ‘Life inside Colnbrook detention centre’, The Guardian, 20 July 2015.

About the author

Oliver Marshall is a Research Associate in the Brazil Institute of King’s College London. His publications mainly relate to historical aspects of international migration. Since 2010 he has been a volunteer with the Gatwick Detainees Welfare Group.

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