Slave Wages: How Our Clients Shone a Light on Detention Centre Exploitation

Toufique Hossain, Director of Public Law at Duncan Lewis Solicitors, specialises in challenging Government policy and practice in asylum and immigration law, with a particular focus on unlawful detention policies. He tells Unlocking Detention about the strategic litigation case of “slave wage” in detention centres he has been involved with and what it is like to represent people who are caught up in this never-ending nightmare of immigration detention.  
The Home Office’s shameless conduct when it comes to those detained under immigration powers just doesn’t seem to end. Working in an area where you are exposed to such conduct on a regular basis, I always fear that you can become a little too hardened by it all. Working with detainees for so many years, I fear I may get used to the idea of immigration detention; begin to think that it is normal in a civilised society. But it isn’t. It shouldn’t be.
I first started representing immigration detainees in 2002. I remember, as a trainee, the regular long drives to Oakington or Campsfield House. I remember feeling that these places were prisons. I try and remember all the clients I’ve come across through the years: torture survivors, refugees, people who later won unlawful detention claims. I also remember the ones who were eventually removed. Fifteen years later, things just seem worse than ever.
Although I am now in a position to help more detainees than ever before, through strategic group litigation challenges, I find myself utterly despairing every time something new emerges, and feel that these injustices cannot go unchallenged. I don’t believe our litigation normalises detention: the bleak reality is that people are in detention, and while this remains the case, we need to help improve their lives however we can.
That the Home Office have set a maximum wage of £1 per hour for immigration detainees filled me with such despair and so my team began to identify brave clients willing to take on this abhorrent policy.
Detention centre providers employ detainees to do essential work for them: to wash, clean, work as barbers, but they are disqualified from the national minimum wage. ‘You can work,’ detainees are told, ‘but you are not a worker.’ Indeed, according to the conservative peer Baroness Williams when questioned in the House of Lords on the issue, ‘this money is not wages as the ordinary working population would see it.’
This strange predicament is typical for the residents of the UK’s grim removal centres. I emphasise ‘removal’ because that is what the Home Office calls them. A transit area where immigrants temporarily reside as their removal is imminent. The reality is that many detainees are held there for the long haul. In the meantime, detainees are neither prisoners, nor considered members of society. Out of sight, out of mind.
Until, that is, we read that one of them has died in detention, hanged by their own makeshift noose. Or we watch footage on TV of a detainee being choked by G4S staff as we did this September, when whistle-blower Callum Tulley heroically exposed physical and verbal abuse at Brook House IRC by G4S officers in a harrowing BBC Panorama documentary. But as Sarah Teather, the former chair of the All-Party Parliamentary Group Inquiry into the Use of Immigration Detention, put it in their own illuminating report: ‘These reports shine a light briefly on the inmates of immigration detention, but the interest is fleeting, and little seems to change for those who languish there, hidden from public view.’
One way of bringing the abusive system of immigration detention to public attention is through high-profile strategic litigation. In May we sent a letter to the Home Office, on behalf of several clients, setting out why the maximum wage of £1 is irrational, discriminatory and unlawful. We put it to them that there was no reason to limit the amount detention centre providers could pay detainees. We argued that there should be flexibility in how much detainees are paid, that detainees should be able to apply to be paid more, and that there should be a higher basic rate of pay. In the letter we put the Home Office on notice that we intend to bring this matter to the High Court if our demands are not met.
The Home Office replied to our letter in June. Their response contained a number of strange justifications for the policy. Shockingly, it emerged in an internal document from 2008 that a limit of 75p had originally been considered appropriate but, the memo cautioned, ‘there would be a risk of detainees refusing to engage any longer, and even of disgruntlement.’
Staggeringly, the memo’s author only recommends the higher rate of £1 per hour ‘reluctantly’. It seems our clients should be grateful for their £1 per hour salary.
Another strange justification offered for the lack of flexibility was that ‘distinguishing between detainees in terms of the rate of pay may cause resentment, particularly if work at higher rates is not available.’ There you have it, our Secretary of State for the Home Office Amber Rudd, who earns over £100,000 a year, simply cannot bare wage inequality or unequal opportunities.
The Home Office also replied that work is provided ‘as a means to meet the “recreational and intellectual needs” of detainees and to provide ‘relief from boredom’, and that detainees do not need money for their day to day existence in detention. ‘Work – like other activities – is not compulsory.’
The picture painted by the Home Office is of detainees contentedly working lathes, throwing ceramic pots and pruning roses. This depiction is as perverse as it is disingenuous and it needs to be dissected.
First, to characterise the work simply as another ‘activity’ is misleading. Our clients and other detainees are doing work essential to the management of the immigration removal centres, much of it banal and tiring. They are working as cleaners, barbers, laundry workers, litter-pickers and food servers.
Second, this work would otherwise need to done by workers paid at least the minimum wage. As the Immigration Law Practitioners Association (ILPA) told Shaw: ‘The private contractor’s model is dependent upon the use of their labour.’ Private contractors such as Serco and G4S make savings by employing detainees at these exploitative rates.
Third, as my colleague Philip Armitage told Nick Ferrari on LBC Radio, clients do need money for their day-to-day existence. They need money to buy credit to speak to their lawyers and their family, and to buy essentials. Men and women deprived of their liberty, in a position of powerlessness, are forced to carry out unedifying jobs for next to nothing by the circumstances which have been imposed on them. If this isn’t slavery I don’t know what is.
As one of our clients, who seeks asylum on the basis of her sexuality and was detained despite evidence of her being a victim of torture, told us:
‘Many detainees are forced to take such work, as purchasing items from the detention centre “shop” is the only way to buy essentials such as body cream during their incarceration. This derogatory rate of £1 is well below any minimum wage, yet detainees are being forced to do work that would otherwise be performed by paid staff, purely for the benefit of the company operating the centre. Detainees have to work in many areas of the detention centre, including the kitchen, the laundry room and as general cleaners. In my opinion this is inhumane and effectively amounts to modern day slavery.’
It should be noted that the only shops in the detention centres are, of course, owned by the private contractors, and so the meagre wages get ploughed back into their profits.
The Home Office response concludes by noting that they were supposed to consider whether the £1 limit was consistent with the Equality Act 2010 in 2015, admitting: ‘It does not appear that such a review has occurred’, confirming that they will now conduct such a review of the rates of pay. We are still waiting to hear from the Home Office about this review, which is supposedly imminent.  We will keep fighting for an end to this state-sanctioned slavery. Like immigration detention as a whole, there is absolutely no place for it in a civilised society, but it is happening just down the road.

Trafficked into detention

Trafficked people in detention are being denied the full protection of the Home Office’s flagship system for protecting victims of modern slavery, according to new research by Detention Action. Many victims of trafficking are taken to high-security detention centres after being picked up in raids on places of exploitation such as cannabis factories. Once in detention, they are treated as irregular migrants to be removed, and find it difficult to access support for victims of modern slavery. Susannah Wilcox of Detention Action explains how came to light through Detention Action’s casework and what their research found. 

Detention Action is far from a specialist trafficking organisation. What we have always been specialists in, however, is listening to the concerns of the people we support in detention. Our work is driven by the stories people tell us about the barriers and frustrations they face while detained indefinitely.
One of the stories that has emerged over the last few years is about the difficulty that people in detention face in gaining advice, support and recognition of their experiences of trafficking. People have told us about the physical, psychological and sexual abuse inflicted on them by people who promised them a better life in the UK, about having to work long hours in dangerous, exploitative conditions, and about their fear of retribution if they failed to pay off the debts they owed to their traffickers. After being encountered by police or immigration officers in cannabis farms, nail bars and brothels, many of them have been prosecuted for crimes relating to their exploitation rather than offered advice and support. Some of these people have been referred into the National Referral Mechanism (NRM), the government’s trafficking decision-making process; many have not. Few have received specialist advice and support in their own language about the options available to them. Even fewer have received a positive ‘reasonable grounds’ decision, the first stage in the NRM decision-making process, which the Home Office itself describes as a ‘low threshold’ and which should trigger release from detention.
Alarmed by the regularity with which people with obvious indicators of trafficking were receiving negative reasonable grounds decisions with no apparent specialist advice or support, we did some investigating of our own. For 6 months, we kept track of all of the Vietnamese men we met in Harmondsworth, Colnbrook and the Verne IRCs with clear indicators of trafficking. We hoped that by focusing on Vietnamese men detained from cannabis farms and nail bars – a group widely recognised as affected by trafficking and exploitation – we would get an indication of the ‘best case’ scenario. We assumed that those with recent and highly visible indicators of trafficking would be more likely than others to access recognition and support. However, what we found surprised and concerned us.
Of the 19 Vietnamese men we met over that 6 month period, 16 disclosed indicators of trafficking. Of that core group of 16, only nine had been referred into the NRM and only two of those had received a positive reasonable grounds decision, a success rate of just 22% that falls well below the overall success rate of 74-90% at the reasonable grounds stage. Many of the men were also marginalised or vulnerable for other reasons. 15 spoke little or no English, and 11 disclosed serious health problems, including cancer, seizures, type 1 diabetes, tuberculosis, PTSD, anxiety, depression and suicidal ideation. During the six months, none of the men were removed to Vietnam, despite seven being detained for six months or more and two for more than a year. Ten were released on bail or temporary admission, begging the question of the purpose of detaining these men, particularly given that many were unwell and had been recognised as ‘adults at risk’ by the Home Office.
Chi [not his real name] was trafficked from Vietnam as a teenager, where he had been living on the streets after the death of his parents. He was beaten by his traffickers in France before being smuggled across to the UK in a lorry. On arrival, he was locked in a house with another boy where they were forced to grow cannabis. Chi was arrested from this house and given a 16 month sentence for cannabis cultivation, aged 16. Around this time, he was referred into the NRM and received a negative reasonable grounds decision. After spending 8 months in prison, he was detained for almost a year. During this time, he made contact with a solicitor with expertise in trafficking who arranged for a new NRM referral to be made and lodged a judicial review of his second negative reasonable grounds decision. Despite this, he continued to be detained. Chi was told that he had been refused bail because ‘they say if I go out, I will make cannabis again. Every judge say this’. A few weeks later, Chi was released into supported accommodation by the Home Office, after 11 months in detention.
Chi is indicative of the 16 men we met during those 6 months, but he was also one of the lucky ones. Assisted by a solicitor with expertise in trafficking, he was able to challenge the Home Office and Tribunal narrative that insisted on seeing him as an undocumented migrant at risk of absconding and reoffending who should remain in detention. Prompted by Chi and the others, we began wondering what it was that was skewing the operation of the NRM for potential victims of trafficking in detention.
After much head-scratching, we identified several structural factors contributing to this failure to identify, advise, support and eventually release victims of trafficking in detention. First, the Home Office is facing a problematic conflict of interest between its responsibility to identify and protect victims of trafficking and its role in detaining and removing undocumented migrants. By prioritising the latter, the Home Office tends to view people who have been trafficked and lack formal immigration status through the lens of ‘immigration control’ – as problematic potential reoffenders and absconders rather than as victims in need of support. They are detained and, once in detention, have less access to independent organisations who can provide advice and support and make NRM referrals where appropriate. Instead, it is primarily the Home Office that makes NRM referrals for people in detention, and these are often incomplete or otherwise inadequate. It is also the Home Office making the reasonable grounds decision, and the Home Office deciding to maintain detention. Without any independent checks and balances in place, the Home Office is able to dictate the outcome of the process.
Second, this failure to adequately identify victims of trafficking in detention turns out to be exacerbated by the lack of effective procedural safeguards. People with a positive reasonable grounds decision are usually (though not always) released from detention. However, given the high rate of negative reasonable grounds decisions for people in detention, neither the NRM nor the Home Office’s new Guidance on Adults at Risk in Immigration Detention is providing a clear and effective safeguard to ensure that potential victims of trafficking are identified and released into supported accommodation where they can access the support and advice they need.
Third, indefinite detention causes harm and prevents effective access to the NRM by denying victims of trafficking a safe space where they can talk openly and access independent advice. People in detention are denied access to an environment that is conducive to recovering from the trauma associated with trafficking or to building relationships with trusted advisors that allow them to fully disclose their experiences. Specialist trafficking organisations tend to work with people outside detention, and staff and organisations working with people inside detention often lack the expertise required to identify and support victims of trafficking.
Taken together, these factors mean that the NRM is failing to adequately identify and protect victims of trafficking in detention. The Home Office’s conflict of interest leads to poor-quality NRM referrals and decision-making, and there are few effective safeguards against this for victims of trafficking who cannot access adequate advice or space to disclose their experiences.
Concerned by what we found, we’ve been talking to the Home Office, MPs, solicitors and specialist trafficking organisations to brainstorm ideas about how the system could be reformed to better support people who have been trafficked into detention and are unable to find their way out. Read our briefing to find out more and see the recommendations we’re making.

The Home Office's unlawful immigration curfews, post-detention

This article by Ravi Naik, Public and International Law Solicitor and Head of Public Law at ITN Solicitors, was first published by the Justice Gap.
The unravelling of the Home Office’s immigration curfew regime following the Court of Appeal judgment in Gedi v SSHD was hallmarked by confusion, uncertainty and, ultimately, illegality. Unfortunately for those detained, the Home Office has still not seen fit to lift the curfews. Indeed, one appeal and four judicial reviews later, the Home Office still can’t get to grips with the central flaw in the immigration curfew system: simply put, it is illegal.
The central lesson to emerge from the case was the Home Office’s assumption of power; an assumption that led to the routine unlawful deprivation of liberty.

Background to the appellant’s case

The appellant was a Somali national who arrived in the UK as a child in 1998, and granted indefinite leave to remain with his family. He never applied for British citizenship. The appellant was convicted of a number of offences as a minor, resulting in him being sentenced to six and a half years’ detention. At Mr Gedi’s point of eligibility for release, he was detained by the SSHD pending a possible deportation under section 36(1) of the UK Border Act 2007.
The appellant sought and was granted bail by the First Tier Tribunal. In being granted bail, he was provided with a number of conditions of residence, including reporting to the UK Border Agency (UKBA) and cooperation with electronic tagging. On his release from detention, Home Office contractors – Serco – visited his residence and imposed electronic tagging on him as per a condition of his release. However, the contractors also informed Mr Gedi that he was to be subject to an additional restriction; he was to have a curfew of 6pm to 10pm each evening and 6am to 10am each morning.
Between the months of December 2013 to March 2015, the SSHD wrote to the appellant on eleven occasions concerning his alleged failure to comply with his curfew. On each occasion, he was threatened with criminal sanctions for his ostensible failure to comply.
The appellant challenged the curfew requirements imposed following his initial release from detention by way of judicial review proceedings. The judge at first instance, Edis J, concluded that, in principle, the SSHD and CIO’s have the power to impose a curfew on a foreign criminal awaiting deportation under paragraph 22(2) of schedule 2, and paragraph 2(5) of Schedule 3 to the Immigration Act 1971. He decided, however, that any curfew imposed on the appellant amounted to the tort of false imprisonment.
Following consideration of submissions from the parties, the Edis J granted the Claimant permission to appeal the issues to the Court of Appeal.

Issues in the Court of Appeal

Before the Court of Appeal the SSHD argued that it had operated under the assumption that it could impose curfew requirements as part of the ‘restriction as to residence’ requirement imposed by the FTT, and later adopted by the CIO. The response of Sir Brian Leveson and Lord Justice Gross was as follows:

35. For our part, we simply do not accept that a right to impose a ‘restriction as to residence’ under paragraph 2(5) of Schedule 3 to the 1971 Act necessarily incorporates a right to impose a curfew… The requirement, however, imposes a specific level of restriction on what those subject to it can do: it is neither more nor less than that they must reside at the specified address. Different people will reside where they live, however, in different ways. Ignoring employment commitments (on the basis that those liable to be detained are not allowed to work unless explicitly granted permission to do so), although many will want to sleep at night, others may well want to visit friends until the late hours and sleep during parts of the day. Both will be residing at the address at which they sleep.

37. Furthermore, it is important to underline the need for the clearest legislative authority for a requirement of this nature. As the appellant was repeatedly reminded, failure to observe any restriction imposed on him under Schedule 2 or 3 to the 1971 Act as to residence, employment or occupation constitutes a criminal offence … not being present between 00:00 and 02:12 (to take the example of the breach letter of 21 December 2013) does not justify the threat that ‘failing to be present as required’ creates a liability to prosecution under s. 24(1)(e) of the 1971 Act.

In summary, the SSHD had no statutory justification for the making of the curfew requirement; and so far as concerns paragraph 2(5) of Schedule 3 to the Immigration Act 1971, a right to impose a ‘restriction as to residence’ does not necessarily incorporate a right to impose a curfew.

A stark reminder

The decision in Gedi serves as a stark reminder of the importance of the accountability of the executive through the judicial process. The Home Office assumed powers that they have never had, which would have continued but for the intervention of the Courts.
The decision provides for two important consequences. Firstly, immigration curfews imposed in such circumstances are unlawful and have been imposed without statutory authority. Secondly, where such unlawful curfews have been imposed, they amount to false imprisonment.
The case itself also evidenced three wider issues:

  • Firstly, the SSHD stated during the case that the regime of curfews was based on an ‘assumption’ of legality. The disturbing reality uncovered in this case is the liberty of these individuals was treated as an afterthought by the SSHD. It is telling that the SSHD did not give credence to the legality of the regulations that govern immigration detention but rather took those powers for granted. This serves to demonstrate the pressing need for the presumption of liberty, accountability and rights protection; rights which, evidently, the SSHD would otherwise not respect.
  • Secondly, the conduct of the SSHD during the litigation betrays the contempt with which the SSHD has treated this case and, by implication, the people behind the cases. Amongst other issues, deadlines were missed and evidence was lost. Whilst I found this frustrating, I assumed the indifference was symptomatic of how the SSHD treated this case. However, my colleagues who practice immigration advised me that this is the unfortunate and worryingly consistent practice of the SSHD to immigration cases.
  • In addition, the SSHD’s defence continuously changed during the case, to the extent of conceding a key aspect of their defence during the lunch break of the trial. One can only speculate as to why the SSHD sought to vary their defence so regularly. However, any defence that needs such regular wholesale changes is no proper defence at all. This must be of heightened importance where the liberty of an individual is at stake. It is to be hoped in the future that the SSHD and her advisors consider the credibility of their defence before seeking to rely on it.

In light of (i) the disarray in the Home Office’s curfew system and (ii) the lengths to which the SSHD will go to defend the indefensible, the Immigration Act 2016 presents a dangerous development. For example, the Act allows an Immigration Officer to arrest an individual where the Officer ‘has reasonable grounds for believing that the person is likely to fail to comply with a bail condition’. This is astonishing. The Act allows an Immigration Officer to arrest where that Officer believes that the individual is likely to breach a condition of bail, opposed to where the Officer believes that an individual may have breached a condition. This is a subtle but important difference.
Allowing the SSHD to arrest an individual where an Immigration Officer believes that an individual is likely to breach conditions presents an incongruity. In particular, the SSHD opposes bail as the relevant Officer already believes that an individual is likely to breach bail. When this view is tested by independent judicial scrutiny by the First-Tier Tribunal, the FTT decided that the individual does not pose such a risk and grants them bail. The very Officer that sought to oppose bail is now given statutory authority to arrest that individual for that very same subjective belief on which they sought to oppose bail. Providing such powers to the SSHD in the context of what was uncovered in Gedi, shows just how dangerous these powers could be.
The judgment in Gedi had been thought of as the end of the Home Office’s curfew regime. Unfortunately, with the Home Office things are never so straightforward.

Return to Court

After the judgment, it would be hoped that the Home Office would issue corrective guidance and individuals would be lifted from their curfews en mass. Unfortunately, the Home Office refused to do so. Indeed, following receipt of pre-action letters from this firm, amongst others, the Home Office simply asserted that they had the power to do so.
This firm has returned to the Administrative Court on four separate occasions. On each occasion, the Home Office refused to lift the curfew despite the ruling in Gedi. On each occasion, the Admin Court issued the claimant with interim relief, lifting the curfew. The Home Office has now issued guidance to case workers in late August 2016, confirming that the curfews are without legal authority and demanding case workers to take corrective action. Despite this, the last case we brought to the Administrative Court came in September, after the corrective guidance.
After the case in Gedi, I have been struck by just how damaging the curfews have been for people. We have been instructed by people who have missed the birth of their children, had their curfew used against them to have their children taken from their custody and are instructed by those that have missed countless events and holidays as a matter of routine.
And these curfews are indiscriminate. They apply to those with convictions and those without. The only connecting thread was that the curfews were applied to those without status. In the context of the current immigration debate, this case serves as a stark reminder of just how callously the Home Office already treat the people most affected by the immigration system, those who happen to be a vulnerable minority seeking a better life.

Released but not yet free: the Home Office immigration curfew system

This post was written by Ravi Naik, Public and International Law Solicitor and Head of Public Law at ITN Solicitors.
Ravi acted for the Claimant in the “Gedi v SSHD” case discussed below.

This post highlights how communicating immigration detention is not solely about abstract policy issues, but can also raise awareness of legal rights that those affected might otherwise be unaware of.

The Home Office’s immigration curfew system presents an anomaly of the Home Office’s detention regime, providing a mechanism to detain people at home when they would otherwise be free. The curfews imposed a condition that the person had to be at the residence named in their bail conditions between certain times.
This system was challenged through this firm in the case of Gedi v SSHD. In that case, the Court of Appeal held that the Home Office had no authority to impose such curfews. Rather, the evidence uncovered during the course of the case was that the Home Office had merely assumed it had the relevant power. The Court of Appeal found that that depriving someone of their freedom requires “the clearest legislative authority”.
The Court of Appeal emphasised the need for legislation and oversight “for a requirement of this nature”. The evidence has borne this out; curfews were imposed indiscriminately, for varying hours and often for 12 hours a day.
As a result of the ruling, the Home Office no longer had the authority to impose such curfews on individuals. However, despite this clear ruling, the Home Office refused to remove the curfews from people.
We have acted for a large number of people who the Home Office refused to release from their curfews. We brought a number of challenges to the continued imposition of the conditions. In each case, the Court ordered the Home Office to remove the curfew. The Home Office appear to have finally taken their head out of the sand and have now issued guidance to caseworkers to remove the curfews.
Given the practice of the Home Office, we are however concerned that there may be others who remain detained under a curfew. All such people are entitled to and deserve their freedom. If you know anyone who remains subject to an immigration curfew, please get in contact with solicitors as a matter of urgency. Our firm are more than happy to assist and we would encourage anyone effected to contact us as soon as possible.

Contact Ravi Naik, head of Public Law at ITN Solicitors:
Phone: 020 8522 7707
ITN Solicitors are based in London but can take on cases from across England and Wales.

Immigration detention: a most un-British phenomenon

By Lea Sitkin and Bethan Rogers. This article originally appeared in Open Democracy’s Unlocking Detention series.

Lea Sitkin is Lecturer in Criminology at the University of Westminster. She holds a DPhil in Criminology from the University of Oxford. Lea has also worked with a number of NGOs, including volunteering as a detention support worker for immigration detainees in Campsfield House, Oxford.

Bethan Rogers has practiced as a barrister for 5 years dealing with criminal law, detention and bail. She also volunteers at Liberty to assist in providing advice to members of the public whose human rights and civil liberties have been infringed. She is a trustee of the Habeas Corpus Project.

Strict prohibitions against arbitrary detention are a central element in any system that celebrates liberty. It is time to learn the lessons of history and extend this right to migrants.

Britain’s proud tradition of liberty is a common trope in both academic and political discourse. In 1923, celebrated legal theorist A. V. Dicey argued that ‘in no other country, are people as free from arbitrary power’. Some 90-odd years later, in an article marking the 799th anniversary of the Magna Carta, British Prime Minister David Cameron argued that ‘the values I’m talking about – a belief in freedom, tolerance of others accepting personal and social responsibility, respecting and upholding the rule of law – are the things we should try to live by every day. To me they’re as British as the Union Flag, as football, as fish and chips’. Our protection of personal freedoms is something that we Brits pride ourselves on; it is something that forms part of our conception of what it means to be British; it is something we judge other countries for lacking.

Strict prohibitions against unlawful detention are a central element in any system that celebrates liberty. As William Blackstone, the famous legal historian remarked, ‘[T]he glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful’. Prohibitions on unlawful detention significantly precede the formation of the modern British state. First recorded in 1305, the writ of habeas corpus ad subjiciendum enabled a court to require custodians to produce a detained person and explain the reasons for detention so the court could decide if detention was lawful. Later, article 39 of that most British of all documents – the Magna Carta – stated that ‘no freeman shall be taken or imprisoned…except upon the lawful judgement of his peers or the law of the land’.

Further, prohibitions were not confined to English citizens, but applied to all persons on English territory. This principle was tested in the landmark case of James Somerset v Charles Stewart, which saw Judge Lord Mansfield rule against the unlawful imprisonment of the former – a Jamaican slave – by the latter – his British Master. As Blackstone argued, ‘this [British] spirit of liberty is so implanted in our constitution, and rooted in our very soil, that a slave or a Negro, the moment he lands in England falls under the protection of the laws and becomes co instanti a freeman’.

However, the notion that people were protected from arbitrary, unlawful detention in Britain was more often cherished as an ideal than evident in reality. In particular, the tradition of liberty of which Britons are so proud should perhaps be tempered by the numerous episodes where we have tolerated lower levels of freedom for immigrants. For instance, both World Wars saw the mass internment – without trial and without right to habeas corpus – of thousands of people of German descent– including, in the case of the Second World War, many Jewish refugees from Germany.

History has judged those episodes, but has not learnt from them. In particular, contemporary, institutional xenophobia finds its expression in the ever-increasing number of foreign nationals detained in ‘removal centres’ and prisons in Britain. Here, the famed British rule of law is a fantasy. As the series of articles on openDemocracy 50.50’s Unlocking Detention series has explored, the British immigration detention features a number of highly problematic aspects from the perspectives of human rights. These include: the detention of vulnerable groups such as torture victims and asylum seekers, particular under the Detained Fast-Track procedure; serious issues with the bail application process; and the retrenchment of legal aid funding. Further, and unlike most other European countries, detainees in the UK enjoy neither the protections afforded by a statutory time limit to detention, nor the fruits of automatic judicial review processes. As such, migrants can be detained indefinitely without charge or trial.

A new charity – the Habeas Corpus Project – has been created to hold the Secretary of State to account on her use of her power to detain people under the immigration regime. Taking its name from the long-established writ which, as above, allows courts to determine whether a custodian has lawful authority to detain a prisoner, the Habeas Corpus Project aims to fill the gap left by the cuts to legal aid by providing pro-bono representation to immigration detainees who want to challenge their unlawful detention in the High Court. This avenue of redress is currently restricted to those who can afford to risk the legal fees and potential high costs in the event of a loss. The Habeas Corpus Project will assist claimants who would otherwise remain detained and unheard. More broadly, it challenges a regime under which potentially illegal detention decisions routinely go unscrutinised.

The need for Habeas Corpus Project will only intensify in the coming year. The Immigration Act 2014 contains a number of provisions in the area of detention and bail. Some of these will be positive, including changes within the child detention regime. However, the Act also contains a number of problematic provisions from the perspective of detainees’ rights. For instance, the Act introduces a blanket ban if bail applications are made within 28 days of a previous refusal and there has been no material change in circumstances. However, this fails to allow the First-tier Tribunal to rapidly correct its own errors. Further, the decision as to whether there has been a material change in circumstance will be made by the Tribunal. This means the decision as to whether the application can go forward will be made without advocacy from the detainee’s legal representative.

The Act also introduces a requirement that bail applications made within 14 days of a proposed date of removal can only be granted on the consent of the Secretary of State. However, as charity BID  has argued ‘as anyone who works with detainees will know, the service of Removal Directions does not inevitably result in removal from the UK, and Removal Directions are often cancelled by the Home Office only to be set again, sometimes repeatedly over several months’. This requirement will therefore cast a net over a far wider group of people than first appears. Finally, the Act radically retrenches the ability of detainees to appeal immigration decisions, first, by allowing the Secretary of State to remove the right to in-country appeals for certain types of deportees, and second, by radically reducing the number of immigration decisions that attract appeal rights to the Tribunal.

What these developments mean is that there will be fewer avenues for detainees to challenge the basis upon which they are being removed and detained. The Immigration Act 2014 pushes migrants even further into the margins of society, and affords them even less protection by the rule of law. As academic Kay Saunders wrote, in reference to internment policies during the two Worlds Wars, ‘Taking a person into custody and then incarcerating him or her without a charge, without a hearing in a court and no right to an open appeal denies all the premises upon which English civil and political culture is embedded’. We are making the same mistake again – although this time, our xenophobia plays out without the nominal excuse of a world war. Today’s immigration detention regime is a stain on our national pride; it is one that we will look back on in shame. In such circumstances, the need for organisations like Habeas Corpus Project is urgent.