“Once a criminal always a criminal”, especially if you don’t have a British passport

“Once a criminal always a criminal”, especially if you don’t have a British passport

2018-12-06T08:57:08+00:00 December 6th, 2018|

Content warning: suicide, torture. Image by @Carcazan.

This blog comes from Celia Clarke and Rudy Schulkind at BID (Bail for Immigration Detainees). BID tweets at @BIDdetention

“I couldn’t go swimming, or even sit on the bus in case my trousers rode up, ‘cos I was so ashamed of the tag.  But it was still way better than being locked up.”

Stephen is quietly-spoken with a strong London accent.  He has recently been released from prison following several years being held in immigration detention, following a prison sentence.  He was convicted under “joint enterprise” where you can be convicted of a crime if you were part of a group acting together. Stephen does not fit the Home Office’s stock characterisation of “Foreign national offenders” as people “who come here and abuse our hospitality by committing crimes, and who must be dealt with with the full force of the law” – a law (UK Borders Act 2007) that provides for the automatic deportation of any “foreign national” convicted of a crime carrying a 12-month sentence or longer.  Stephen came to the UK as a very young child from a dangerous, conflict-ridden country.  He was initially looked after by his older siblings, but such was his distress as a result of his early experiences that his siblings were no longer able to provide for his needs.  He was sadly taken into care.  He should have been entitled to register as British but often local authorities do not take the necessary steps to ensure that children’s immigration status is regularised.  All Stephen’s family members are British citizens.  Unsurprisingly, Stephen made no enquiries about his own immigration status – why would he?  As far as he knew (and he has never left the UK), he was British, having grown up here. Imagine his shock when, at the end of his custodial sentence, having determined to turn his life around, he was handed a notice informing him the Home Office intended to deport him.  He was given 14 days to write and tell them all the reasons why he shouldn’t be.  From a prison. With no legal representation and no phone, and not properly understanding what this all meant.  He was also handed a piece of paper telling him he was now being detained under immigration powers, so not being released at all.

While Stephen’s story is shocking, it is sadly not unusual.  BID is in contact with many people who are facing deportation from the UK having lived here since childhood and it is heartbreaking to witness their journey into what can only be described as exile. Our prisons’ project represents them in applications for bail and then some of them can be taken on by our deportation project for representation in their deportation appeals.  The stakes are incredibly high, as are the thresholds to meet now to have any hope of success: “compelling circumstances” deportation would be “unduly harsh” – mere “harshness” or “cruelty” as it is defined in policy is not sufficient and does not meet the test.

Punishment multiplied

According to the latest figures, 378 people are held in prisons under immigration powers upon the completion of a custodial sentence. Many of them had indefinite leave to remain or even refugee status; many grew up in the UK and considered themselves British. Having served time and approaching their release date, individuals are shocked to find out (often on the day before their sentence expiry date) that they are going to be punished again: through revocation of their status; through deportation proceedings; through continued unlimited detention.

Invidious as it may be to draw comparisons between prisons and immigration removal centres (IRCs), detainees held in the more restrictive environment of a prison face specific disadvantages.

Invisibility and isolation

There is a cloak of invisibility over immigration detainees in prisons which is just beginning to be lifted.  For some journalists and politicians, the fact of their criminality makes it an unappealing topic to champion. But for us it is yet another hidden scandal.

Detainees in prisons have no access to computers or fax machines, and no mobile phones. Their sole means of communicating with the outside world is by post, and this can be subject to significant delays. Detainees in prisons have little communication with Home Office officials, compounding their isolation and lack of access to justice. Often the form notifying the detainee of the decision to detain arrives late, and the Home Office neglects to provide legally required monthly reviews of detention. Immigration officials are scarce in prisons, and caseworkers are often unresponsive. In the words of one person interviewed by former Prisons and Probation Ombudsman Stephen Shaw in 2016, “I would like to know the caseworker really exists and I am not talking to a brick wall”.

Access to justice

Unlike detention centres, prisons were not designed to detain people under immigration powers.  In his most recent report, Stephen Shaw once again found it to be “unsatisfactory that the rights and regime of time-served foreign national offenders are so different to those held in IRCs (Immigration Removal Centres)”.

There is no co-ordinated provision of immigration legal advice in prisons, and our research has revealed that only 6% of detainees who had been in prison prior to being moved to a detention centre had received advice from an immigration solicitor.

The vast majority of those fighting deportation orders have to represent themselves following the removal of deportation and human rights cases from the scope of legal aid in 2013. This is a formidable task for anybody, let alone immigration detainees held in prisons whose means of communication are heavily restricted.

Fighting an immigration case means keeping to strict deadlines. For instance, an individual has 14 days to appeal against a decision to deport. This is difficult enough to do from outside detention and even more so from within a detention centre, but for those detained in prison such deadlines seriously undermine the principle of access to justice.

Even those who want to leave the UK often cannot do so, because restrictions on channels of communication – particularly internet access – obstruct cooperation with the travel documentation process, as many will need to be re-documented by their country of birth since they have lived in the UK for so long.

Vulnerable adults

The Home Office accepts that vulnerable adults should not be detained. Detention centres have procedures to ensure that where there are concerns about someone’s health, suicidal intentions, or that they may be a torture survivor, this is flagged to the Home Office and the appropriateness of their detention is promptly reviewed. This process does not apply in prisons. Many people held in prisons have vulnerabilities so severe that it is more likely these would be identified and result in release if held in a detention centre. In prison, this vulnerability is not even recognised.

What do we think should happen?

  • There needs to be an immediate end to the use of prisons for immigration detention;
  • There needs to be a restoration of legal aid for family and private life (Article 8) matters;
  • The automatic deportation provisions in the UK Borders Act should be repealed.