Detainees in prison lack legal safeguards, face delays and inadequate case progression
HM Inspectorate of Prisons (HMI Prisons) yesterday published an important new review looking at the experience of immigration detainees in prisons.
Image credit: UK GovernmentYou can download the 33-page report here.
For the review, HMI Prisons visited eight prisons and interviewed 45 immigration detainees and 33 key members of prison staff, including on-site Home Office staff, during March and April 2022.
The findings by HMI Prisons from its review are critical and concerning. In summary, HMI Prisons finds that immigration detainees held in prisons are substantially disadvantaged in terms of legal safeguards compared with those held in immigration removal centres (IRCs), the progression of their cases is inadequate, and the prolonged detention of people under immigration powers is inexcusable.
One of the 45 detainees interviewed was found to have been held for 2 years and 9 months, which HMI Prisons called an unacceptable length of time to hold anyone in administrative detention.
HMI Prisons said: "This review suggests that, in many cases, being held in a prison means that detainees have poorer access to fundamental legal rights and support than those held in IRCs. This disparity has day-to-day consequences for detainees, including feelings of confusion and hopelessness and a lack of access to much needed support. If detainees are unable to fairly access the legal process and their vulnerabilities are not monitored and addressed effectively, there is an increased risk that they will come to harm while in custody and that the integrity of the decision-making in their immigration cases will be undermined … [T]he prolonged detention of people under immigration powers, especially when it is because of inefficiencies in Home Office case-working procedures, is inexcusable given that so many prisons are already overcrowded."
HMI Prisons noted that perhaps the review's most concerning finding was that vulnerable immigration detainees in prisons, including torture victims, were not routinely identified and not considered for release in the same way as in IRCs.
The report helpfully sets out its key findings as follows:
- Many immigration detainees were held in prisons for long periods despite minimal progress in their cases. There was little prospect of removal within a reasonable period for many detainees and some continued to be held in prisons after their release was agreed in principle because of a lack of bail accommodation.
- Detainees routinely encountered difficulties in obtaining legal representation for their immigration cases. Some had difficulties in adding solicitors' phone numbers to their list of approved contacts and very few had been informed that they were now entitled to half an hour of free legal advice in line with the provision in immigration removal centres.
- Serving prisoners were usually given very little notice that they would be subject to indefinite immigration detention, causing significant distress among many. Many prisoners were served with detention paperwork just before or on their planned release date.
- Neither Home Office nor prison staff understood or applied the Adults at Risk in Detention policy that was intended to protect the most vulnerable detainees. Communication between the Home Office and prisons was often poor, and information-sharing was weak. Prisons were generally unaware of which immigration detainees were classed by the Home Office as adults at risk in detention, nor were they informed of important changes in detainees' cases.
- The lack of an equivalent to Detention Centre Rule 35 meant that vulnerable detainees, including victims of torture, were not routinely being identified and the Home Office was not considering their release in the same way as they were obliged to for those held in IRCs.
- Detainees found it difficult to contact Home Office staff based in prisons. Many detainees reported difficulties in arranging face-to-face contact with Home Office staff, and those who were able to arrange it told us that they struggled to get timely and meaningful updates on their case.
- Professional interpretation was often not used when prison and Home Office staff communicated with immigration detainees. Detainees reported that this was particularly problematic when it came to discussing complex legal matters, the progress in their cases, and legal documents.
- There was a poor understanding of the National Referral Mechanism (NRM) among prison and Home Office staff. Several detainees we spoke to had experiences of trafficking and been referred to the NRM, but they remained in prison without access to any specialist support.
- The support available to immigration detainees in prison from NGOs and outside organisations was variable at best. While some establishments had good links with NGOs and community organisations who could provide tailored support to immigration detainees and foreign national prisoners, there was little support available in others, and detainees were not provided with any information about how to contact organisations.
On access to legal representation, HMI Prisons notes that this was an issue raised by many of the 45 detainees interviewed for the review. Nearly half of the detainees (21) had no legal representation for their immigration case, and just seven detainees said they were receiving legal aid to fund their representation.
Up-to-date and accurate information on firms providing legal aid-funded advice for immigration matters was not routinely provided in the majority of prisons visited by HMI Prisons. Trying to identify a legal representative who was willing to work on their case was a significant problem for detainees. One of the detainees said he had contacted over 40 different solicitors without success.
A policy was introduced in November 2021 allowing 30 minutes of free legal advice for immigration detainees in prisons, but HMI Prisons found that the majority of detainees had not been informed of this entitlement. Only nine detainees said they had been made aware of it. Prison and Home Office staff were also found to have a patchy knowledge of the service and of detainees' entitlement to it.
HMI Prisons said: "The issues surrounding access to legal advice were significant for the immigration detainees we spoke to. An inability to access and contact legal representatives – and significant variation in the knowledge of prison staff and the support provided in different establishments – created a risk that detainees were unable to fairly challenge the Home Office's decision to remove them. In addition, the lack of understanding of changes to detainees' entitlements to legal aid among staff meant that detainees in prisons were disadvantaged when compared with those held in IRCs."
The review also highlights the problems caused by a lack of contact with Home Office staff in prison and inadequate progress of cases.
HMI Prisons stated: "This lack of communication was an ongoing feature of immigration detention for many of our interviewees. Prison and Home Office staff recognised that case progression was often slow, but there was little infrastructure in place to ensure that detainees could regularly seek updates or ask questions. Most detainees we spoke to said they wanted to speak to someone from the Home Office about their case but that face-to-face conversations, if they happened at all, were infrequent and that the Home Office staff who worked in prisons did not know the details of their case progression."
Home Office staff acknowledged the problems, but pointed to structural problems with the system, including delays in case working and delays in the wider criminal justice system.
Delays and a lack of communication led to frustration and confusion among detainees.
One detainee told HMI Prisons: "I feel like the Home Office don't know anything about me and they don't see any of the things I have done. I want them to come and see me, it would be helpful if they can explain to me why this is happening, right now I am in the dark and I don't know what is going on with my life… I spend my nights without sleep because I am not knowing what is happening and I don't know when it will end."
According to Sky News, the Home Office said it is already implementing the report's recommendations. Sky News included a brief quote from a Home Office spokesperson, who said: "Foreign criminals who remain in prison ahead of removal include dangerous individuals who have committed serious crimes. The government has improved access to legal advice and ensures we carefully consider a person's vulnerabilities."