Going home is simple…you just think of home and tap your heels. Or, why the UK government’s go home campaign doesn’t check out.
To paraphrase Dorothy in the Wizard of Oz, or the UK government – we forget which – ‘Is life here hard? Going home is simple’.
Setting aside for the moment how offensive – or criminally offensive – it is to tell people to go home, not least because plenty of non-British people call the UK home, are the government’s claims accurate?
Based on our clients’ experiences, we’d agree that life in the UK is hard. People in the UK are subjected to asylum & immigration detention and destitution. Immigration detention is indefinite. Ex-detainees are banned from the right to work and mainstream benefits. Access to legal representation to challenge unfair treatment is severely restricted.
So if it’s true that the UK makes life hard, how easy is it to leave?
Not so simple
Many of our clients simply cannot go home. ‘Home’ is an armed conflict zone. ‘Home’ is unsafe – because of the person’s religious, racial, political, sexual or other identity. ‘Home’ is non-existent – because the person cannot be documented as belonging to a State (s/he is stateless, there are no diplomatic relations with UK, or s/he cannot prove his/her nationality).
Some of our clients have lived here all their lives, even if they aren’t British. Some have their family in the UK, and cannot just leave their children. There is a myriad of issues that such a blatant campaign misses.
Many of our clients have a right to be in the UK as asylum seekers. Asylum seeking is a complex process – it means you have a genuine fear of persecution, on the basis of which you’re asking the UK for protection. It is not the individual’s fault that the UK Home Office takes so long to process a claim for protection, gets so many claims wrong, and is so inefficient.
For example, in 2010 the UK was refusing 99% of gay and lesbian asylum claims. This didn’t mean 99% of those people should have just ‘gone home’ to meet violence and death (it is a crime to be gay in 76 States in the world). The high refusal rate meant that political and civil processes needed to be improved.
A disingenuous campaign?
For the government to tell non-British people in the UK to ‘go home’ is to ignore its own pivotal role in deciding these same individuals’ fates. A failed asylum seeker is someone whose claim for protection has been rejected by the government. However, the government routinely gets these decisions wrong and the individual asylum seeker therefore has to go through a lengthy and distressing appeals process through no fault of their own, during which time they are banned from the right to work and mainstream benefits.
If you think going home might not be as simple as the Home Office says it is, you can tell them before 9 October 2013.
People in immigration detention often have complex legal cases: immigration law is difficult and discriminatory; the UKBA often makes decisions that breach its own guidance; those decisions are often matters of life or death – refusing someone asylum who claims they will be tortured if sent back to his/her country of origin. DDVG’s Detention Support Manager, Victor Fiorini, explains why the current system of providing legal representation to people in immigration detention is failing them – and anyone who believes in fairness under the law.
I’ve worked for Dover Detainee Visitor Group for the last four years so I’ve seen how we have managed to adapt to our clients’ changing needs. It’s satisfying to see how one small charity like ours has managed to keep up to date with what our clients go through.
But since October 2010 we’ve had to focus most of our energies on the issue of legal representation available to detainees. The date is not coincidental. Since October 2010, the Legal Services Commission has imposed (I cannot think of a more suitable word) a system which restricts the number of solicitors allowed to do legal aid immigration and detention work in particular Immigration Removal Centres.
The rationale behind this is unclear but it is probably a cost-cutting exercise. The benefits to detainees of this restriction are even more unclear, even though we suspect this was not a major factor that was taken into consideration.
On paper, the system should work. Every detention centre has a number of firms that run weekly legal surgeries in that IRC. Detainees can book one 30 minute time slot in order to see a legal caseworker from one of these firms. In that 30 minute meeting the detainee can get legal advice and, provided his/her case passes the merits test (that is, that s/he has 50% chance or more of success), then that solicitors firm is under an obligation to take on the case.
If the legal caseworker believes there are no merits to the detainee’s case, then they should give the detainee a form that explains the reasons why the solicitor has refused to take on the case – so that the detainee can contest this with an independent adjudicator.
Back to reality
But as someone who visits around 600 detainees every year, I can vouch that what is written on paper is miles away from what is actually happening.
Exclusive contracts have been detrimental to detainees and at times were the reason why a detainee could not get proper legal representation before it was too late. I am starting to dread asking detainees if they have a legal representative – in case they mention particular firms that seem to make life impossible. And I struggle to advise those without legal representation to ask an officer on their wing to put down their name for these legal surgeries, because I have serious doubts that the detainee will really get what s/he needs from these sessions.
So what exactly is not working with this system?
Let’s start with the fact that I’m not sure whether all the legal representatives running these surgeries are aware of why they are there and what their obligations are. Being awarded an exclusive contract should not only bring financial certainty to a firm, it should also bring responsibilities. One of them is that the firm needs to have enough capacity to take on all cases that pass the merits test. This is not just an ethical matter. It is written black on white in their contracts.
Some think they can get away with cherry-picking cases according to how many clients they can take on, and by telling other detainees that they have failed the merits test. It is becoming a rarity to hear that when detainees ‘fail’ this merits test, the rules have been followed and they have been given the reasons for the refusal – so that they can contest this decision.
Trying to go home
I recently worked with someone in immigration detention to get written evidence of his constant co-operation with his embassy. He wants to return home voluntarily. I knew that in order to apply for bail, a solicitor would need to be equipped with evidence that this person’s removal from the UK was not remotely imminent, and that therefore he should not be held indefinitely in immigration detention, while the UKBA tried to organise his flight out of the UK.
I was sure the detainee had a case for bail. But apparently the legal caseworker who saw him during this surgery said the client had no case. There were no substantial changes to his case since his last refused bail hearing, he said. A matter of difference in opinion? I doubt it, since even the Home Office have now acknowledged that this person’s removal is not imminent and have asked him for an address that they can release him to.
What would have happened to this detainee had he not got in touch with DDVG? He barely speaks English. He is not aware of the complications surrounding the immigration process. You would think a solicitor with experience dealing with the UKBA would look at all the angles of a case to see how to put an end to his prolonged detention. But when private solicitors firms are given exclusive contracts and have no competition, they get lazy. And this is what is happening right now.
No English, no lawyer
We have recently had an infuriating conversation with a legal caseworker who turned down a potential victim of trafficking for legal representation. He could not assess the client’s merits, he said, because the detainee could not speak English. If this law firm’s reasoning does not make you angry, I don’t know what would.
Legal Advice Project
DDVG has now started its own legal advice project. We were reluctant to divert resources into this, but we had no option.
One of the first clients we took on is a victim of torture who also self-harmed on a regular basis. His removal from the UK was next to impossible. After having spoken to the three firms awarded the exclusive contract at Dover IRC, he was turned down by all of them. Once again, he was not given reasons for the refusals. Which is where we came in. Our legal advisor not only secured his release from detention, this client now also has a fresh claim for asylum pending.
The list of problems goes on and on. But the biggest issue we have is not with these firms, but with the Legal Services Commission. When a government body is told repeatedly by frontline groups like ours that a system created by them is detrimental to those it is supposed to help, it might be time to listen.
We’ve had to take on a watchdog role with solicitors firms and even with the Legal Services Commission. It is not a role we wanted to undertake. It was something we felt we had to do. If the Legal Services Commission is unable to monitor its own system that many have criticised it might be time to re-think how legal advice and representation is made available to some of the most vulnerable people in the UK.
UK’s use of force against asylum seekers under scrutiny
The State’s use of force against immigration detainees has come under scrutiny, as a man died in immigration detention on 10 February.
As news emerged of the death of an 84 year old man in immigration detention – the seventh person to die in Harmondsworth Immigration Removal Centre since 2001 – questions were being asked on Twitter about whether immigration detention can ever be legitimate. Immigration detention is one facet of State force against individuals. Physical restraint of pregnant asylum seekers or asylum seekers being removed from the UK is another. Failure to prevent someone’s death in detention, yet another.
Are asylum seekers less equal?
However, there has yet to be a mainstream public debate about how the State’s use of force against asylum seekers can be tolerated as legitimate. Such a debate would raise troubling questions: why is it we in the UK allow our governments to detain, restrain – and even fail to prevent the deaths – of asylum seekers, including victims of torture? Do we really care so little, so long as we can say the victims are ‘different’ or ‘foreign’, or at least ‘non-British’?
Pregnant asylum seekers
This week the UK Border Agency backed down on its hitherto uncompromising stance that it is entitled to use force against pregnant women and children, but as commentators including the Free Movement Blog – noted, it took a court challenge against Theresa May and the Home Office to evince such a human reaction as reinstating a policy not to refrain from using force against pregnant women.
A report published this week by Maternity Action and the Refugee Council demonstrates the effects of the government’s policy of ‘dispersing’ pregnant asylum-seeking women and their babies around the UK. The UKBA routinely subcontracts security companies to evict pregnant asylum seekers; one woman was evicted on the day she was going to be induced, even though UKBA and G4S (the security company) knew this.
Another example of the State’s use of force against asylum seekers, the UK’s treatment of pregnant asylum seekers highlights the consequences of asserting that only British people have human rights in Britain.
Forcible removals from the UK
Earlier this month the BBC reported the alleged assault suffered by Marius Betondi during a Heathrow deportation. Marius is by no-means the first person to suffer at the hands of UKBA-employed security staff. Jimmy Mubenga’s death while being forcibly removed from the UK on a flight from Heathrow emphasised the UK’s failure to treat asylum seekers as human, as does the failure to bring charges in his case.
Fear of the State
Refugees, by definition, are fleeing their country of origin because of a well-founded fear of persecution. The question is what do people have to fear in the UK?
Can immigration detention be legitimate? This was the question posed at the second All Souls Criminology seminar of 2013, which offered presentations by Dr Mary Bosworth, and Hindpal Singh Bhui from the HM Prisons Inspectorate.
The question rephrases that posed twenty year previously by criminologist Richard Sparks, when a series of prison riots and the subsequent discovery of gross mismanagement led him to ask how prisons can be legitimate. Under this view, legitimacy is a property of both the external conditions that govern the use of prisons and the internal practices – the missed meals, arbitrary punishments, corrupt grievance procedures and so forth – that shape the experiences of prisoners.
If prisons are to be considered bad on these terms, detention centres are decidedly worse. The audience to last week’s seminar heard of the absence of an officially stated goal for immigration detention in the UK and the lack of judicial oversight of the decision to detain. Shockingly, in around one quarter of cases, inefficiencies by the UKBA are reasons for ongoing detention.
Furthermore, the UK stands alone in the European context as having no statutory limit on detention. Far from ‘removal centres’, up to 10% of detainees at any one time have languished in detention for over a year. Under these conditions rates of mental distress are extremely high: a problem exacerbated by the regular – and illegal – detention of former torture victims.
While official rhetoric situates immigration detention as a necessary and administrative response to illegal immigration, detainees often understood their situation as punitive, as well as inefficient. As one respondent to Dr Bosworth’s study said, ‘I’ll just come back, Algeria is not so far’. Others were keen to emphasise the racial aspects of detention, the over-representation of non-white ethnic group a clear offshoot of a half century’s discriminatory immigration policy.
A worse kind of prison
Barbed wire, lock-down, security: prison was the natural comparator for both detainees and staff members. However, Dr Bosworth’s two year study revealed a complex relationship between the two institutions of prison and detention centre. For those detainees with experiences in the criminal justice system, some actually argued that they preferred prison because of the uncertainty regarding release dates and the lack of activities in removal centres. In turn, individual staff members were often keen to emphasise that they did not see detainees as prisoners. Accordingly, they often understood their own role in terms of ‘a shoulder to cry on’.
Staff do, indeed perform many small acts of kindness, such as bringing in special foods or organising family visits. At the same time, this ‘care and welfare’ discourse does not cover the securitised aspects of their work and staff members simultaneously complained about a lack of sanctions for unruly detainees. The Kafkaesque atmosphere of immigration detention is reflected in the psychological dissonance experienced by staff members, as well as the torment of detainees.
The legitimacy gap
The evidence above begs the question: how much wider could the legitimacy gap be? However, as Hindpal Singh Bhui commented, while detainees have enacted many instances of rebellion – escapes, hunger strikes, riots and criminal damage – the day-to-day situation at removal centres is remarkably stable, in contrast to the chronic crisis of prisons observed by Sparks in the early 1990s. Why this is, is not certain. One possible explanation is that detainees are more likely to be positive and socially conformist than prisoners. Another is that they might be fearful that bad behaviour will lead to deportation; detainees questioned during HM Inspections often ask whether their complaints will jeopardise their immigration cases. Conversely, they might be motivated by an arbitrary kind of hope: with one third of the population released each year, freedom may just be around the corner – a point reinforced constantly by staff members. Strong, positive relationships with these ‘reluctant jailers’ may also foster a ‘relational legitimacy’, that acts as a nervous bulwark against revolt.
Taking a different angle, Dr Bosworth argued that huge ethno-national diversity among detainees might weaken the possibility of collective action, although this was countered by Hindpal Singh Bhui, who saw the shared experience of detention as fostering cohesion. Perhaps foreign nationality is instead a better explanation for why immigration detention is seen as legitimate by the wider population. It is difficult – though not impossible – to imagine toleration of such practices directed at fellow British citizens, standing within the bounds of membership. Here, legitimacy unveils its conservative, exclusionary face.
Reformation or abolition?
For activists in this field, the most important question is whether to fight for reform or abolition. And the political landscape is tough. Recent recommendations made by the Inspectorate to introduce an independent panel for the examination of cases of lengthy detention were rejected by the UKBA on the basis that it already reviews its own cases. Spectacularly – and deliberately – missing the point of the Inspectorate, this example shows the strong resistance to amendments in working practices, making wholesale abolition seem like a far off dream indeed.
At the same time, evidence of some change is apparent: Hindpal Singh Bhui discussed the example of the new Cedars immigration detention centre for families with children, which boasts extensive support and leisure facilities. The argument here is that by introducing a kinder detention regime, legitimacy is increased among in-mates – an interpretation which circumnavigates the wider, controversial issue of detention’s function in the first place.
What both abolitionists and reformists can, however, agree upon is that the current state of affairs is inefficient, cruel, and immoral, even as it looks sustainable in the immediate future.
With thanks to guest author Lea Sitkin, a Dphil student at the University of Oxford. Her thesis concerns illegal migration and the exploitation of migrant workers in the UK and Germany. This article was originally published on the Criminology at Oxford blog and is reproduced here with the kind permission of author and publisher.
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