15 May 2020

Over the last few months, the impact of the COVID-19 outbreak has extended far beyond the boundaries of just health. It has affected all aspects of the workings of society and in the week commencing 14 March 2020, a new target was revealed, those subject to immigration detention in the UK.

Immigration detention is where the Home Office holds people who are subject to immigration control in custody whilst they wait for permission to either enter the UK or be deported/removed from the UK. On 1 January 2020, there were 1,200 people being detained across the UK’s immigration detention centres.

Whilst the Home Office is granted its power to detain by statute, to ensure that this power is not abused, guidance has been issued which outlines additional criteria that must be taken into consideration when determining if immigration detention should be exercised in a particular case. There is a presumption in favour of granting immigration bail (i.e. release subject to conditions) and therefore, for detention to be justified, there must be strong grounds for believing that a person will not comply with the conditions of immigration bail. The Home Office is also under an obligation to consider all reasonable alternatives to detention and also consider Home Office guidance including ‘Adults at risk in immigration detention’ before detention is authorised. This policy considers factors such as whether an individual has experienced a traumatic event such as trafficking or torture, or if there is medical evidence to suggest that an individual is suffering from a condition that would likely render them particularly vulnerable to harm if placed in detention.

The presumption in favour of granting immigration bail also applies to criminal offenders. However, the risk of re-offending or absconding is weighed against this presumption and in practice, the more serious the crime, the less likely it is an individual will be released on immigration bail.

Where immigration detention is deemed to be suitable, the Home Office then becomes subject to a statutory duty to review detention at least every 28 days. If applicable, the Home Office must also provide detainees with written reasons for continued detention at the one month point and beyond, which should be based on the outcome of detention review, i.e. that they continue to satisfy the criteria above.

Overall the Home Office’s policy on detention is one of necessity and proportionality. For the 1,200 individuals in detention at the beginning of the year, the requirements detailed above were presumably considered before detention was imposed. However, the COVID-19 outbreak challenges whether continued detention is indeed necessary and proportional and ultimately, whether it can be justified in the face of potentially severe and irreversible consequences.

In March 2020, an urgent legal challenge was brought by Detention Action on behalf of a detainee who suffered from hypertension. As part of the challenge, expert evidence was submitted which warned that prisons and detention centres provide ideal incubation conditions for the rapid spread of COVID-19 if the virus were to get into these locked facilities. It therefore called for the release of all detainees who were particularly vulnerable to serious illness or death if they were to contract the virus, the release of detainees from 49 countries (including Jamaica, India, Pakistan and Afghanistan) who were unable to be removed because of border closures as a result of the pandemic, for all remaining detainees to be tested for COVID-19 and for all new detentions to be indefinitely suspended.

Whilst the UK does not set a specific time limit for immigration detention in the UK, Home Office policy does state that detention must be used sparingly and for the shortest period possible. Detention can only lawfully be exercised where there is a realistic prospect of removal within a reasonable period. Accordingly, on this basis, the legal challenge questioned the continued detention of those detainees who were unable to be removed to their home countries because of the lockdown measures imposed. It was argued that the Home Secretary was acting unlawfully and in direct contradiction to published policy, thereby falsely imprisoning many detainees.

The High Court dismissed Detention Action’s arguments and highlighted the ‘sensible, practical and precautionary steps’ the Home Office had taken to address the possible effect of the COVID-19 outbreak on immigration detention centres in what are ‘exceptional circumstances’. By the time the judgment was handed down on 25 March 2020, the number of detainees held in detention centres had dropped from 1,200 at the beginning of the year to 736 people as at 24 March 2020. The Home Office has also committed to actively review the cases of all other detainees remaining in detention, with priority given to those who are identified as being at increased risk of serious harm if they are to contract the virus. For any individuals who it is considered unsuitable to release (for example, because they are a serious offender or there is a risk of absconding), the Home Office has confirmed that steps are being taken to reduce their contact with others including the suspension of social visits and the provision of face masks for those who so desire. The Home Office has also published guidance for detention centres on hygiene practices such as regular hand washing and the disinfection of frequently touched objects and surfaces.

The judges highlighted that the risk of detainees contracting COVID-19 is the same as faced by the entire population and whilst there are particular risks associated with the congregate setting of immigration detention centres, the judges were satisfied that the Home Secretary is taking active steps to reduce the number of those in immigration detention and for those who remain detained, to implement safety measures. The overall tone of the judgment is pragmatic. These are unprecedented times and the judges have therefore accepted reasonableness and proactiveness from the Home Office over near perfection.

Whilst the High Court came to its conclusion on the basis of the current unique circumstances and without having to consider whether the Home Office’s response was justified in line with its overarching need to maintain an effective system of immigration control, the Home Office’s response can be read in this light. Its categorisation of cases and the decision to release detainees based on suitability prioritises the public interest and the continued operation of the UK’s immigration system over the health of the individual. Whilst in normal circumstances this may not be unusual and there are several instances where acting in the public interest is an overarching policy (e.g. journalism, criminal justice, etc), in comparison to the Government’s overall response to the pandemic, this decision regarding immigration detention may indeed seem to be abnormal.

In recent months, the Government has shown that the health of all citizens is its number one priority at this time, even trumping what is usually a major priority, the economy. Putting aside the questions this raises regarding how foreign nationals and those considered to be offenders and/or in breach of immigration laws are viewed in the UK, the Home Office’s approach to immigration detention during the pandemic also seems to contradict the Government’s previous low risk approach. The shift from herd immunity to lockdown, highlights the Government’s desire for the spread of infection to be contained as much as possible and at a manageable rate. Expert reports submitted as part of Detention Action’s challenge from Professor Richard Coker of the London School of Hygiene and Tropical Medicine, indicates that if COVID-19 gets into immigration centres, about 60% of those in detention could be rapidly infected. Not only would this result in additional strain and risk to the NHS workers the Government has sought to protect, but in the very worst case scenario, it could result in the loss of lives which ultimately may have been avoidable.

The approach taken by Spain highlights that now may be the perfect time to move away from practice and instead prioritise consideration and compassion. Within a month of the country’s lockdown on 14 March 2020, Spain had emptied its immigration detention centres of most of its detainees. As at 29 April 2020, there were only three individuals remaining in detention on the Spanish mainland. This was borne of the awareness of the impact a COVID-19 outbreak in the detention centres would have on detainees, staff and the wider public. Whilst immigration control is a perfectly legitimate purpose for an immigration system, it may not be the most effective objective at this time when so many people are facing uncertainty, loss and fear for their and their family’s health. Spain has shown that the rights and dignity of migrants are not incompatible with an immigration system. This may be an example for the UK to follow. If compassion alone is not a sufficient reason, then the long-term effectiveness of the immigration system could also benefit as migrants with positive experiences of the immigration system are more likely to comply and engage in future.

The COVID-19 pandemic has caused individuals to rethink their priorities and perhaps it should also prompt the Home Office to rethink the purpose of the UK’s immigration system.