Additional layers of disadvantage
The rights of people detained in prison under Immigration Act powers are hampered in unique ways. People detained by the Home Office in prisons are held outside the scope of the statutory Detention Centre Rules, the Detention Services Operating Standards, and Detention Service Orders. Bail for Immigration Detainees (BID) has described the placing of immigration detainees in prisons as “administrative detention within a criminal justice framework” [1].
It is important to acknowledge that people’s experiences vary and the comparison between prisons and IRCs is not always helpful, especially given the need to address the inherent harm caused by detention no matter the setting. Nevertheless, when it comes to upholding well accepted norms and international standards on detention, it is evident that prisons are not appropriate settings to do this, and their failings need to be made explicit for this reason. AVID's position is that immigration detention as a whole must end. As a step towards a more humane system and to alleviate the immediate suffering of people in detention, AVID has been amongst others in the sector advocating for parity for people detained in prisons.
Visitors meet with people detained in prison for whom the following challenges are common:
Home Office Casework and Prison Staff
The Home Office routinely notifies people in prison that they are liable to indefinite immigration detention with little notice, creating severe distress among many.
People detained have difficulties communicating with Home Office officials. Many people in detention report difficulties in scheduling face-to-face meetings and when they are able to do so they struggle to gain meaningful updates on their case.
Professional interpretation is frequently not used when prison and Home Office officials communicate with people detained in prison. This makes it especially difficult to discuss complicated legal issues, the status of their cases, and legal documentation.
Immigration teams are often not embedded in prisons holding people under immigration powers (they are in FNO Hub prisons Huntercombe, Maidstone, Morton Hall). For officers working in the prison, it is often the case that responsibility for “Foreign National Offenders” is added onto another job role and allocated to someone who may be largely unaware of or uninvolved in the mechanisms of detention or release.
Access to Justice
Whilst people held under immigration powers in prisons should have access to 30 minutes of free legal advice[2] the Legal Aid Agency does not provide free immigration advice surgeries, even in prisons holding large numbers of people under immigration powers, making it very difficult to actually access legal advice.
Access to justice is further hindered by practical barriers to contacting legal advisors, the courts, and the Home Office. Being unable to use mobile phones, fax machines, or access the internet, and being restricted largely to the postal system, make it difficult for people detained in prisons to respond quickly to time-sensitive documents, and seek release from detention or independent scrutiny of their ongoing detention. Individuals are only allowed to call people whose numbers have been approved by Prison staff, creating a barrier to access to legal services. This process can take time and is done on an individual basis meaning that even if a number to a solicitor, for example, has been approved for one person if does not guarantee it will be approved for someone else.
These practical barriers act to slow down progress in their substantive immigration case.
In a 2022 report from BID “Catch 22 – Accessing Legal Advice in Prisons”, they found that 70% of people surveyed did not have a legal representative. These are some quotes from their report:
“In prison, I cannot copy my original document or receive invitation calls from a solicitor who might have the capacity to take my case. This reduced my chances of getting representation. In this prison I cannot get my phone numbers from reception. I'm locked away from the outside world, cannot contact friends and family to get help or representation. How do I contact my friends for help?”
“I call to lots of solicitors (more than 30). No one accept legal aid. Even prison foreign national officers not bother other than deportation. Hard to get legal advice. Great thanks to BID and whole team always great on calls, letters response.”
Mental health
Reports of isolation, anxiety and mental health distress are common amongst people detained in prisons, exacerbated by prolonged periods of detention without knowledge of release. In HMIP’s 2022 inspection on “The experiences of immigration detainees in prisons” they reported:
“Twenty-seven of the 45 detainees we interviewed reported having current mental health needs, ranging from low mood and anxiety to serious mental illness. Most of the detainees who described low mood and anxiety linked this to their detention, and their lack of knowledge over what would happen to them and when they would be released.”
People with recognised vulnerabilities, including torture victims, are not identified on a regular basis. There is no mechanism in prisons akin to the imperfect Rule 35 system in detention centres designed to identify anyone whose health may be adversely affected by ongoing detention and bring them to the attention of the Home Office for consideration of their release.
Those held in prison under immigration powers should have the same privileges and rights as remand prisoners (individuals who are detained in custody while awaiting trial or sentencing). This grants them greater access to telephone calls, visits and other entitlements. However, this is not always communicated to people and they are still subject to greater restrictions than IRCs. All of this worsens isolation.
Future Watch
Following the second Steven Shaw Review, the Home Office committed to a Detention Parity project to address concerns on the parity of people detained in prisons as compared to an IRC. We are expecting the introduction of new safeguards for people detained in prisons as part of this.
https://www.gov.uk/government/news/civil-news-immigration-and-asylum-advice-in-prisons
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