Journal

Virus pandemic: Why the UK must release immigration detainees

By on
21

The detention of migrants who do not pose a risk is dangerous, callous and illegal, argues Oxford University PPE student James Cox

The UK’s use of Immigration Removal Centres (IRCs), or detention centres, is a controversial topic at the best of times. In light of the coronavirus crisis, their use in the detention of migrants who do not pose a risk to themselves or the public is dangerous, callous and illegal.

To begin with, it must be remembered that detained migrants are not prisoners, and that the use of IRCs form part of the administrative, not criminal process. The Home Office’s own policy states that “detention must be used sparingly, and for the shortest period possible”. The practise is, in a sense, an administrative convenience, allowing the authorities to keep track of migrants that are being processed. Despite this, detainees are kept at close-quarters in unsanitary, prison-like conditions: a “perfect incubator” for COVID-19.

This clear and obvious risk to detained migrants formed the basis of Detention Action’s legal challenge in the High Court calling for the release of 736 detainees. In a most stark illustration of the real danger those housed in IRCs find themselves: in his expert evidence, Professor Coker of the London School of Hygiene and Tropical Medicine suggested that “it is credible and plausible that 60% of immigration detainees will soon become infected with COVID-19”.

Despite this, last Wednesday the Court rejected the challenge. It cited the range of “sensible” and “practical” measures being implemented by the Home Secretary, Priti Patel, including last week’s release of more than 300 IRC detainees, and suggested that these “will be sufficient to address the risks arising in the majority of cases”.

While the ground-breaking release of migrants must be welcomed; for those that remain, this, along with handing out masks and a few other piecemeal measures, cannot be regarded as ‘sufficient’. We know that there are still detainees possessing risk factors such as hypertension, asthma and HIV, and whose continued detention places them at risk of serious illness and death. Stories have emerged of detainees not receiving free soap, making following government guidelines on hand-washing impossible; instances of cells not being cleaned after detainees displaying COVID-19 symptoms were moved elsewhere; and, in a story from Brook House IRC, of a detainee being isolated with symptoms only a day after he was serving food to other migrants. The truth of the matter is that IRCs are not only unnecessary, but unsafe, and will continue to be so in the hands of a government determined to treat migrants as criminals.

Want to write for the Legal Cheek Journal?

Find out more

However, even if we accept the suggestion that the government will keep these migrants safe in IRCs, there remains another string to the continued-detention-is-unlawful bow. In UK law, where a migrant is not considered likely to abscond or a risk to themselves or the public, they may only be detained where there are arrangements being made to deport them ‘imminently’. This is echoed in the European Court of Human Rights’ judgment in Tabesh v Greece, which states that detention is only justified providing “deportation proceedings are in progress”. And again, with the Working Group on Arbitrary Detention stating detention is only justified “as long as a real and tangible prospect of removal exists”. And again, with a similar sentiment, in Saad v the UK. And again, in the Human Rights Act 1998, which states that detention in this circumstance is only justified where “action is being taken with a view to deportation or extradition”.

Indeed, there is a wealth of case law and legislation that states there must be an ongoing process, with an ‘imminent’ prospect of release for the detainee. Why is this relevant? Well, none of these conditions can be adhered to in light of the coronavirus pandemic. With current restrictions on travel, and lockdown measures reducing the administrative capacity of government departments, the idea that arrangements are being made to deport detainees ‘imminently’ is absurd. In many instances, migrants are not able to be removed as nations have closed their borders entirely. It is unclear how long these measures will go on for, but, in the meantime, migrants detained in IRCs do not have a “real and tangible prospect of removal”.

This was apparently conceded by Lucy Moreton, a representative of The Union for Borders, Immigration and Customs. In evidence to the Parliamentary Home Affairs Committee, she stated: “Certainly in light of the advice given by the foreign secretary, removal to anywhere globally is going to be problematic.” Further, the SNP’s Shadow Immigration Minister described removal in the current circumstances as “all but impossible”.

Clearly, then, the detention of migrants in IRCs during the coronavirus pandemic is not only a risk to public health, expensive and inhumane — but, rendered illegal by the destruction of any prospect of removal in the near future: certainly past the point in time which might be regarded as ‘imminent’. On this basis, the government must release all migrants detained in IRCs who do not pose a risk to themselves or the public.

James Cox is a second year philosophy, politics and economics (PPE) student at the University of Oxford. He is an aspiring barrister, and is currently running for president of the university’s Bar Society.

Want to write for the Legal Cheek Journal?

Find out more

Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

21 Comments

Jezza

We voted to leave the European Union, implement a points based immigration system, and properly enforce existing immigration law.

How about: “no.”

P.S. virtue signalling to become a human rights barrister is so 1990s. You’re still a white man in their eyes, so it’s an auto reject. Be like Amal.

Anon

We voted to leave the European union, not to be inhumane. If this pandemic teaches us anything Jezza, it should teach us to be a little kinder.

Anon

Really good analysis! A very enjoyable read.

Anon

Really enjoyable read! Good analysis.

Anonymous

The group in question tend overwhelmingly to be young. They are in the lowest risk group. Those that do not like being detained can return home.

Anon

The point is they can’t: I’m not sure Eritrea is operating any Coronavirus repatriation flights, there aren’t any commercial flights and the Government is not deporting anyone for a while. They now have no choice but to stay locked up until this is all over.

Anonymous

Well diddums. You can bet an Eritrean claimant did not enter the UK directly. They can stay locked up then. Most are just working up scripts of whatever the lies are that work in immigration tribunals this year to let illegals stay.

Anon

What a heartless response to those who have tried to leave a country where over half of its population live below the poverty line and suffer under one of the worst human rights records in the world. Even if you don’t want to allow them the right to stay, it’s not hard to understand migrants who try.

Not to mention, it’s simply illegal. Whatever the legality of their entry, their detention is not as criminals, but as migrants who have to be deported imminently. Now that chance has gone, their detention is arbitrary. You can’t justify it with ‘oh I have no sympathy as they came here illegally’. It’s still illegal whether you politically support their detention or not.

Anonymous

Economic migrants, which you accept many are when you say “over half of its population live below the poverty line”, are illegal entrants to this nation. Letting them out will just mean we lose the ability to send them packing in due course. You cannot criticise the processing as arbitrary when the reason they are they in the first place is their own conscious illegal activities. And where they entered from is important, as they passed through many countries to get here where they could have claimed asylum, but instead they come here because we are soft on processing and hand out benefits left, right and centre. The processing of immigration issues should be a 100% administrative exercise with no legal aid of any sort whatsoever. Part of getting back control is the ability to say to illegal immigrant we are no longer a soft touch.

Archibald Pomp O'City

The author had to pass a Thinking Skills Assessment to get where he did, a test you would undoubtedly fail. And so, here you are, below his line.

Anonymous

Really good analysis! A very enjoyable read.

Flopsy

I think the article is excellent. Whilst I can see why others might argue against it, I agree with what James is saying.

Archibald Pomp O'City

“Whilst I can see why others might argue against it, I agree with what James is saying.”

Doesn’t the fence ultimately cause bruising on your Biffin’s Bridge?

Anon

A very well reasoned argument with a logical conclusion. Continued detention is unreasonable in the circumstances. However, is the alternative really any better for these folk? Released to roam in a community in turmoil whilst COVID-19 is in town…seems like a non-essential journey to me! One of many unpalatable problems and dilemmas facing us right now.

Winter Floo

It’s just the flu

Glutes

I prefer hard working, pleasant Europeans to the useless, entitled Brits who voted to reject the Europeans. We are an embarrassment.

Anonymous

English not Brits. The Scots, the Welsh and the Northern Irish voted Remain. (PS The majority of Welsh voters voted Remain, it was English voters in Wales, especially the borders, that tipped Wales as a whole into a leave vote.) It was the mind set of the Little Englanders. You know, the sort that kept saying covid was “just flu”. And to blunt it was the provinces, Londoners knew the idea was idiocy too.

Diane Abbott

The british state has no moral responsibility to care for illegal “migrants.”

Just Anonymous

This is, in general, a very well-written and persuasive article. Two (hopefully constructive) points of feedback.

Firstly, while, as I said, this article is persuasive, I do wonder if it is somewhat pushing at an open door. As it acknowledges, more than 300 detainees were recently released, and last week the High Court rejected a challenge to the continued detention of the remainder. Thus, there must (at the very least) be a sensible reason for keeping the remainder detained.

This suggests to me that the government has already released those detainees it deems not to be a risk to the public, and the only ones left are those who are considered a risk. As this article acknowledges, detention of such people is in principle reasonable.

If that’s right, then that rather implies that you and the government are on the same page, and there is thus nothing to argue about in terms of principle.

I could be completely wrong about this, because I can’t find any information anywhere as to why the High Court ruled the way it did. If I am wrong, by all means correct me.

Secondly, the only part of the article I didn’t like was this:

“…and will continue to be so in the hands of a government determined to treat migrants as criminals.”

This sort of rhetoric may play well in the student debating chamber. In court, it will fall flat. Put simply, the evidence doesn’t justify it. This is a government which has released hundreds of detainees, which rather suggests that where it hasn’t released a detainee, it has a good faith reason for it (even if that reason is ultimately flawed).

Lamb

This nasty, vicious Tory government will always want to keep people out. They will keep people down. The herd must be listened to.

Russia’s bot

The state of this comment section is about as low as the Daily Mail’s.

Join the conversation

Related Stories