The Dark Arts of Immigration Detention

Each year the Home Office detains around 30,000 men, women and children for immigration purposes, with decisions about who is detained, for how long and why, made in secret. Solicitor Jennine Walker tells the story of a man who was held for more than three years and asks what it tell us about the UK’s treatment of foreign offenders.

Back in 2014, early on in December, I received an unexpected phone call from a client.

He was calling from a phone box. “They release me today, miss,” he said. As usual his voice was flat, giving little clue as to how he was feeling. “What happened?”  I asked.

I could scarcely believe it. I’d been asking the Home Office to release him for months now, and each time they had refused. And now after being detained for 36 months and eight days, he was free.

“They say we no deport you. If you have address, you go out today… If you don’t have address, it take longer. I give them address, they take me to train station. They give me ticket, they tell me go.”

My client, who can only be identified as “AXD”, is from Mogadishu, Somalia. He has never said much to me about his life, so what I know is pieced together from his laconic, broken words and from documents which go back 20 years to when he first arrived in the UK.

The civil war broke out when he was still a teenager in 1991. The fighting was close, just ten houses away, he said, and he and his family were forced to flee their home several times.

Schools and hospitals were destroyed, roads were blocked, gunfire filled the air. People were killed. His father died.

Like anyone who could, some of his older siblings left the country and scattered across the world, to the USA, the UK, Europe, where they could live without fear of being attacked by armed militias from rival clans.

AXD followed when his brothers sent money for him to make the journey, leaving only his mother and elderly grandmother in war-torn Mogadishu. His journey, like those of most Somalis I know, was in stages, as he waited for the money to come from another side of the world. Nairobi, Kampala, Addis Ababa, until one day at the start of spring in 1997, he arrived in the UK and claimed asylum.

AXD wasn’t recognised as a refugee but was granted permission to stay under the government’s policy for Somali nationals that was in place at the time. In 2007, he was granted the right to remain in the UK indefinitely.

The story of his life in this country is as patchy and sad as that of his youth in Somalia.

He found low-skilled, manual work for a time, in factories, warehouses, and stores, living in the parts of London where many others from the diasporic Somali community lived. But he never really fitted in. He chewed khat and started drinking (“because I felt sad,” he said to me once).

Every time he spoke to his mother in Somalia, she told him about people he had grown up with who had been shot, killed.

He didn’t like to think about it. He drank heavily and began getting into trouble with the law. Petty stuff at first, but then in 2008, he was convicted of unlawful wounding/GBH, and sentenced to 16 months’ imprisonment. This conviction in 2008 led to the start of his problems with the Home Office, which culminated in the phone call to me in 2014.

From prison to immigration detention with no prospect of release  

The 2008 conviction triggered the Home Office’s decision to deport AXD, and to detain him under immigration powers after he completed his criminal sentence. In 2009, while being held under those powers, he claimed asylum again: the ongoing war in Somalia still meant it would be unsafe for him to go back.

The Home Office accepted that he had a valid new claim that they would need to consider. He was released after five months, but not long after that he was back in prison again with a three-month sentence for criminal damage. After he had served the three-month sentence, the Home Office detained him again under immigration powers. This second period of detention by the Home Office, between 2009 and 2011, lasted over 20 months.

In May 2011 AXD was granted bail by an immigration judge, and by October of that year he was back in prison serving another short sentence. This time, when the Home Office detained him after he’d served time, they locked him up for more than three years, pending a decision on whether to deport him.

While the decision was being made, he was mostly kept at HMP Woodhill, even though he was detained under immigration rather than criminal powers. This meant he should have been in an immigration detention centre, where the regime is more relaxed.

He was locked in his cell for 21 hours a day, he told me, with 30 minutes’ fresh air a day. He was bullied by other inmates because of his homosexuality, and over time, his thoughts became less coherent, his behaviour more disturbed.

He smashed up the television in the cell because he believed they were talking about him on the news. He heard voices saying derogatory things about him and felt paranoid, anxious and scared.

No one seemed to care, or worry even, so long as his problems were confined to himself. It was only in mid-2013, several years after he came into contact with law enforcement agencies and the Home Office that an independent psychiatrist, instructed by a colleague of mine, diagnosed him with paranoid schizophrenia.

In spring 2014 he was moved to an immigration detention centre, where he seemed more stable. But a local authority assessment found he had become institutionalised, to the point that if released he would be unable to care for himself.

And then one day out of the blue, in December 2014, I got that phone call from him.

I’d normally rejoice to hear that a client is free, but this time was different. I was incensed.

The Home Office knew about his mental health problems, into which he himself had little insight; they knew he had nowhere to go, no way to support himself. They knew he would end up on the streets, homeless, forced to beg, almost certain to start drinking again.

I had told them this countless times, and in fact – though I didn’t know it at the time – an independent psychiatrist they had instructed and the detention centre health service had reached the same conclusion. What were they thinking, just letting him go like this? Didn’t they care at all?

I’m sure the Home Office panicked, leading to the decision to release AXD. A few weeks before, I’d lodged a case in the High Court arguing that AXD was being detained unlawfully. Before the case was even considered fully, a judge ordered the Home Office to think seriously about releasing him.

They must have known they were in the wrong, and thought that by releasing him like that, they could make his case go away before the courts had a closer look.

The Home Office should have released him with a care plan in place that would include support for things like continued mental health treatment, a community care assessment and a final decision on his immigration status. But this didn’t happen.

A couple of weeks after he was released and after our phone call, I found out that AXD had been arrested. He’d run out of medication, been sleeping on the streets, begging and drinking heavily. He pleaded guilty to sexual assault and was sentenced to 21 months in prison. This was the first time he’d committed an offence of this kind.

Counting the days up, not down 

Three years in detention is a long time. For AXD, those three years came just six months after he had been detained for 20 months. If you add in the earlier period of detention too, by the time he was released he had spent a total of 60 out of the previous 70 months in immigration detention. That’s five years out of less than six.

AXD is a man of few words. “I felt very bad,” he said, when I asked him how he was during that time.

What did he do every day, for three years? “Nothing…. Waiting”. He waited for a decision from the Home Office on whether he would be deported that never came. “I think they forget about me,” he said.

Several clients have told me that immigration detention is much worse than prison. At least there you know when you’ll get out, they said. When you’re in immigration detention you don’t. You count the days up rather than down, and you know you are counting indefinitely because there is no knowing when it might end. It messes with your head, they tell me. It makes you think you are losing your mind.

Decent mental health care is often lacking in detention or prison settings. Even when anti-psychotics, anti-depressants and other forms of medication are dispensed, the real suffering of detainees is routinely disbelieved or their welfare simply ignored.

And it is difficult to quantify the lasting impact of the endless waiting. The frustration, powerlessness and sense of dehumanisation. The inability to understand what is going on, the gradual loss of hope. These are merely by-products of the system, unnoticed and unimportant.

AXD did suffer mentally in detention. It is not clear when or why it happened and he himself doesn’t know. Sometimes he’d say his mental health problems started in 2002 when he was the victim of an attack that landed him in hospital for a week, his front teeth smashed out.

Sometimes he’d deny having any mental health problems at all. His behaviour became increasingly disturbed from late 2011 onwards, during the third and longest period of his detention.

His prison records from late 2011, 2012 and 2013 read like a catalogue of alarm bells, all ignored. So long as he didn’t cause trouble, it seemed, he didn’t really matter. The prison nurses said he had no mental health problems, but there had never been a proper assessment, despite the signs.

After my colleague sent the prison healthcare service a copy of the independent psychiatrist’s report in mid 2013, AXD was seen cursorily by a prison psychiatrist and given a course of anti-psychotics. But the prison psychiatrist failed to conduct any review, and there was little improvement in his symptoms. It was only after he was moved to the immigration detention centre that he received adequate treatment.

No one really knows what would have happened if AXD had been diagnosed earlier.

His long-term prognosis would probably have been better. Almost certainly he would not have experienced the mental distress my colleagues and the independent psychiatrist saw him endure. But perhaps the worst effect that detention had on him was that over time it became all he knew, and took away any ability he had to look after himself and lead a normal life.

When I started dealing with his case in late 2014 something struck me about AXD that was quite different to my other detained clients. Of course he wanted to be released, but he didn’t have the anger, the desperation, or the urgency that others have. He seemed utterly passive; as if he had stopped counting the days long ago. As if he had lost all hope.

Challenging the Home Office

On 13th May 2016, Mr Justice Jay, sitting in the Queen’s Bench Division of the High Court, handed down his judgement on AXD’s claim against the Home Office. The case was filed while AXD was still in detention in 2014 and we continued to work on it after he was released then imprisoned again in 2015.

The judge found that AXD had been detained unlawfully for 20 months and five days before his release. He asked the parties to try to reach an agreement as to how much AXD should be awarded in damages to compensate him for being deprived of his liberty, and for the pain and suffering caused, but the Home Office refused to engage in any negotiation.

The case went back to court and on 5th July 2016 the judge decided that AXD was entitled to £105,000 damages. This is one of the highest recorded figures that the Home Office has ever been ordered to pay in a case where they have detained a migrant unlawfully.

The judge was critical of the way Home Office officials had handled AXD’s case, and particularly the fact that their decision making was driven by the risk that AXD might abscond or re-offend if he was released.

These risks did exist, and are certainly factors that the Home Office is entitled to consider in such cases, but they are not “trump cards” that justify detention irrespective of any other circumstance.

By law, the Home Office should also have been looking at what impact being detained was having on AXD and whether releasing him under certain conditions could have been an alternative to detention.

Most importantly, the Home Office should have been assessing when it would be able to deport AXD, which of course it could not do until a decision had been made on his asylum and human rights case.

The judge who decided AXD’s case examined the Home Office’s internal records forensically. He concluded that the officials handling AXD’s case “conspicuously [failed] to stand back from the here and now” and address the legal principles which set out the limits on Home Office powers to detain. Instead, there was “an overwhelming sense of [the Home Office] reacting to events and hoping for the best, rather than acting proactively and taking a realistic view…”.

He criticised the Home Office for failing to explain lengthy periods when they took no action at all on AXD’s asylum claim and for expecting or hoping that he would infer that the delays were just administrative failings, rather than being unlawful:

“The case had begun to drift, as one senior official put it, long before the summer of 2014. The risk to the public, and of absconding, was not so great that continued incarceration was the only real option.

In my judgement the claimant’s case cried out to be grabbed by the metaphorical scruff of the neck, and clear and firm decisions made. It is simply not acceptable that the claimant was detained for so long, in such circumstances.”

AXD’s case is an extreme example because of the length of time he was detained. But it sheds light on the way the Home Office deals with foreign national offender cases more generally.

Detention is the default, no matter what impact this has on a person’s life, no matter what the costs, which are considerable when you add the sums of compensation paid.

And there are the legal costs of defending false imprisonment claims along with the costs of detention itself, which is far more expensive than accommodating someone in the community.

Every month the Home Office is supposed to review the cases of people held in detention. The decision on whether detention is still justified in each case is made by a senior official. But the system of monthly reviews doesn’t act as the safeguard intended when the institutional commitment to maintaining detention is so strong, and when even the most senior officials fail to take responsibility for making the decision to release someone like AXD.

In fact, throughout the time he was detained, AXD had a very strong asylum and human rights claim. From 2009 the violence and insecurity in Somalia intensified as the Islamist insurgent group Al-Shabab gained power and territorial control. The situation got progressively worse, to the point that in mid-2011 the European Court of Human Rights ruled that removing people to Somalia would breach the European Convention on Human Rights.

In late 2011 the UK’s specialist Immigration Tribunal found that Mogadishu was unsafe for the majority of its citizens. This effectively meant that most Somalis, and particularly those from Mogadishu like AXD, qualified for some form of international protection and should be granted permission to stay in the UK, even if only for a limited time, until the situation improved.

In addition, AXD had a strong claim that he would be at risk of persecution in Somalia because of his homosexuality, and later because of his mental health problems. Yet despite this, the Home Office did not make any decision on his case until he was released in 2014, when he was finally recognised as a refugee.

As I trawled through the internal records that the Home Office had to disclose before the court trial, which revealed how his case had been handled behind the scenes, I often felt quite nauseous. Time moved in circles, folding back on itself, chronological order lost all logic and meaning.

On 21st December 2011, for instance, a Home Office official said that it would not be possible to deport AXD and his case should be conceded.

Four months later a different official backtracked from that position and insisted that it would be a “great achievement” if AXD could be deported.

Another 16 months later, on 20th December 2013, it was decided again that AXD shouldn’t be deported because he would be at risk in Somalia. A few months passed and that position was rescinded again.

On 21st February 2013, someone said a decision on AXD’s asylum and human rights claim was long overdue and had to be made within the next 28 days. Nothing happened.

On 4th October 2013 another person said the same thing again. Still nothing happened. Time passed.

The fact that this time belonged to AXD, a person, a human being, that it was years of his life, never seemed to cross any official’s mind. In piles of papers about him, AXD was nowhere to be seen.

Human rights aren’t just for cute kids 

The government has long been committed to detaining and deporting ‘foreign national offenders’ like AXD. In 2006 the Labour Home Secretary Charles Clarke faced public outrage and calls for his resignation when it emerged that over 1,000 criminals had been released at the end of their sentences without being considered for deportation first.

This led the Home Office to introduce a secret policy of detaining all foreign national offenders after they completed a prison sentence, without exception, and without considering their personal circumstances.

This new policy conflicted with the Home Office’s published policy, which provided that detention should be used “sparingly, and for the shortest period necessary” and that each case should be considered on its own facts.

In 2011, the Supreme Court found that the Home Office’s reliance on the secret policy was unlawful. In response, the Home Office amended their published policy, which now says that foreign national offenders do enjoy the same ‘presumption in favour of liberty’ as everyone else, but that it would “normally” be appropriate to detain them before deportation.

In practice nothing has changed, and foreign national offenders are almost certain to be detained.

AXD’s case shows just how far the Home Office is prepared to go, in order to deport foreign national offenders. Cases like his are common, though rarely discussed.

Critics of immigration detention perhaps understandably tend to prefer to focus on more obviously sympathetic cases, such as those concerning victims of torture or human trafficking, women or children.

Another reason little is known about these cases is that most settle out of court. Generally, the Home Office accepts that it has acted unlawfully, and agree to pay substantial sums of money in damages. But these agreements are confidential, and without a court trial their internal records are unexamined, and so the cases come and go, far from public view.

The confidentiality of the settlement suits both sides. Those who have been detained unlawfully quite understandably want to avoid the press intruding into their lives.

The tabloids were the only papers that reported AXD’s case, with headlines full of venom and outrage at the scandal of a migrant being handed money from the government.

The Home Office on the other hand, is keen to prevent what these cases should really provoke: a closer scrutiny of the practice of indefinite detention. And so no one really knows how routinely the Home Office detain people unlawfully, and what the true costs of its actions are.

AXD may not be the most obviously sympathetic case through which to denounce this system.

At the end of his judgement Mr Justice Jay commented that “the claimant is not a particularly worthy [or] likeable individual”. Yet he went on to say that “another way of looking at this case, however, is to point out that the claimant is vulnerable, that he probably suffers from paranoid schizophrenia, and that only those obligated to an adherence to the rule of law would be likely to vindicate his rights”.

It is vital that cases like AXD’s are scrutinised and discussed, in all their complexity, to hold the government to account and uphold the basic rights of every human being living in this country.

Banner photo by olafpictures.