At the start of the year, some 1,200 immigrants were being held in immigration detention in the UK. The power to detain immigrants is separate from detention of individuals as part of a criminal sentence. There is a presumption against detention of immigrants, and immigration detention can only be in accordance with one of the statutory powers (the majority of which are contained in the Immigration Act 1971 and the Immigration and Asylum Act 2002), and where it is in the interests of maintaining effective immigration control, for example, to effect removal; to establish a person’s identity or the basis of their immigration claim; or where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail.
In order to be lawful, not only must immigration detention be in accordance with one of the statutory powers, but it must also be in accordance with the limitations implied by the domestic common law and Strasbourg case law (ECHR Article 5), as well as with stated Home Office policy.
Under the common law and ECHR Article 5, the statutory powers to detain are to be strictly and narrowly construed, i.e. if detention is not for a statutory purpose (or is no longer for that purpose) it will become unlawful. Additionally, the power to detain is impliedly limited to a period that is reasonably necessary for the statutory purpose to be carried out and must be justified in all the circumstances of the individual case, requiring an assessment of individual factors such as the risk of absconding, the likelihood of imminent removal, and the impact on the detainee.
Since news of the first immigration detainee testing positive for COVID-19, there has been increasing concern about the risk of COVID-19 deaths in immigration detention and about the legality of continued detention of immigrants. Detention Action Group sought to challenge the continued detention of some 736 immigrants in a judicial review advanced on two main bases: first in relation to vulnerable detainees such as those who are suffering from serious medical conditions or who are aged 70 and over; and secondly in relation to those whose removal is not reasonably imminent as a result of the global pandemic and the consequential travel bans and restrictions around the world.
The Home Office’s Adults at risk in immigration detention policy confirms the presumption against the detention of those adults who are particularly vulnerable to harm in detention except in very exceptional circumstances.
Adults at risk include those who have serious physical health conditions or illnesses and those aged 70 or over. Age disputes are not uncommon in the immigration context, particularly if formal documentation (such as passports and birth certificates) are not available or not accepted as genuine. However, there is even greater scope for dispute in relation to the question of whether someone with a health condition such as asthma, diabetes, or a heart condition is considered to have a serious physical health condition severe enough so that they should not be detained. Given that those with asthma and heart conditions are considered to be vulnerable in the context of COVID-19 in open conditions within the wider community, it seems to follow that immigrant detainees with those same conditions would also be deemed vulnerable, particularly in conditions where social distancing may be difficult or impractical, or where access to appropriate medical care may be more limited.
Detention Action Group commissioned a scientific report from Professor Richard Coker, Professor of Public Health, which indicated that prisons and detention centres provide ideal incubation conditions for the rapid spread of the coronavirus, and it was “credible and plausible that 60% of immigration detainees will soon become infected with COVID-19″. The continued detention of such vulnerable immigrants is therefore subject to challenge on the grounds that it would be in breach of the Adults at risk policy.
Detainees with physical conditions or illnesses that place them at high risk if they contract COVID-19 will need to be identified and Rule 35 of the Detention Centre Rules, which requires medical practitioners in detention centres to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention, will need to rigorously applied to ensure that such vulnerable immigrants are released from detention.
Detainees liable to removal to countries with travel restrictions
A separate consideration is the likelihood that removal of those in immigration detention will no longer be reasonably imminent with no realistic prospect of removal or the likelihood of an unreasonable delay in effecting removal to those countries where there is a travel ban in place.
The question of how long it is reasonable for an immigrant to be detained pending deportation or removal is one that has been given detailed consideration in case-law, most notably in R(ota I v SSHD), and R v Governor of Durham Prison ex parte Hardial Singh. The fact that travel restrictions and bans are in place in several countries throughout the world is likely to pose an insurmountable obstacle to the removal or deportation to those countries, so challenges to detention by those facing removal to such countries can be pursued successfully if decisions to release are not made following review of detention in those cases.
The need for case-by-case reviews of continued detention
Although Detention Action Group’s recent application for urgent interim relief for the release of the 736 immigrants in detention was rejected by the High Court last week, in the week leading up to the hearing 350 detainees were released, and the Home Office provided an undertaking to review proactively the detention of all those held under immigration powers in accordance with updated Public Health England guidance.
Although the Home Office has not been compelled to empty the immigration detention centres, like in other European countries, continued detention will now be reviewed carefully on a case-by-case basis and it is also likely that bail applications, Habeas Corpus applications and individual judicial review claims will be brought where the detainee is deemed vulnerable in accordance with the guidance from Public Health England, or where the detainee is liable to removal to a country where travel restrictions are in place. It remains to be seen whether detainees considered at risk or vulnerable on the grounds of COVID-19 will be subject to “shielding” measures in solitary confinement rather than be released, however, as suggested in a leaked G4S letter.
In the unfortunate event that there is a death in immigration detention as a result of COVID-19, the adequacy of any detention review and the application of Rule 35 in such a case are likely to attract significant attention in the inquiry into the death in custody and the decision to continue to detain.