'Careless and costly': Home Office approach to immigration detention during the COVID-19 crisis
Most removals have stopped during the pandemic, either because of restrictions on flights in the country of removal or for other reasons, but clearly any attempt to carry out an enforced removal during the pandemic flies in the face of public health advice on containing the spread of the virus.
At Bail for Immigration Detainees (BID), we provide legal advice and representation to secure release on bail for immigration detainees. Since 23 March 2020, we have provided representation in 88 hearings, and 83 clients have been granted bail. This 94 per cent success rate compares with BID’s success rate of 59 per cent during 2018/19, and a usual success rate for all bail applications made to the First-tier Tribunal of around 30 per cent. Our view is that immigration detention should be ended at this time of crisis in public health. There is clearly disquiet on the part of immigration judges, as evidenced by their consistency in granting bail.
Having consistently failed to persuade the court that people should remain in detention, the Home Office wrote a letter
to the president of the First-tier Tribunal (Immigration and Asylum Chamber) on 29 April expressing its ‘surprise’ at the level of grants of bail in recent weeks. In response to this widely criticised
written enquiry, the president felt it necessary to remind the Home Office that, as an independent judiciary, the courts decide bail applications in accordance with the law (which he subsequently summarised for the Home Office).
In research published by BID
last month, we analysed the Home Office’s approach to detention decision-making in 42 of our successful bail cases. In only seven out of 42 cases did the Home Office refer to the current travel restrictions and the fact that these could have an impact on the imminence of removal. In most cases, it simply ignored this issue, despite the implications it has for the reasonableness or lawfulness of continued detention.
The Home Office’s justification for continued detention has frequently emphasised keeping the public safe from high-harm offenders. Clearly, this argument is considered politically expedient, but it is simply not borne out by the facts. In our research sample of 42 cases, a high risk of harm was only alleged in nine of them, and a medium risk also in only nine cases. In the remaining cases, the level of risk was ambiguously defined or not stated at all.
Thirty-two applicants within the study had particular vulnerabilities, including nine individuals who had underlying health problems that, under the government’s own guidelines, make them vulnerable to severe illness if they contract COVID-19. Nineteen applicants had been detained for more than six months and six had been detained for over a year. Fifteen were parents who were separated from their children by immigration detention, but in two-thirds of these cases, the Home Office simply ignored submissions that we made on this issue.
We have found the Home Office’s approach to bail hearings to be careless and error-strewn, failing to take account of the enormity of the changes brought about by the pandemic. Equally, the Home Office should not waste public funds on continuing to detain and on opposing releases on bail. At a time like this, immigration detention is costly, cruel and unnecessary.