Home Office ‘falsely imprisoned’ foreign national prisoners

In a key test case, the Supreme Court ruled that two men were held unlawfully, but awarded them just a pound each in compensation.

The judgement is part of a long running legal battle between the Home Office and human rights lawyers over the treatment of foreign national prisoners.

Both men, Jamaican Kadian Mighty and Congolese national Walumba Lumba, were detained at the end of criminal sentences, while the Home Office tried to remove them from the UK. The case started when they were part of a group action at the High Court, arguing that that they had been detained for too long.

It was during this case, that the courts discovered that the Home Office was operating a secret policy of detaining nearly all foreign prisoners, despite the fact that the published policy said that they would normally be released.

The question of how to deal with foreign prisoners became a burning political issue in 2006, when it was discovered that over a thousand foreign nationals had been released at the end of criminal sentences, without being considered for deportation.

A secret policy

Charles Clarke was forced to resign as Home Secretary and under his replacement John Reid the new secret policy was brought in, ordering that unless there were exceptional circumstances, all foreign prisoners should be held under immigration act powers at the end of a sentence. They would stay in detention for as long as it took to remove them, even when, in many cases, this took months or even years.

But this tougher approach was never revealed to the courts, lawyers or the detainees themselves. The power to detain someone while removing them from the country was first set out in the 1971 immigration act.

The law states that there is a presumption of release, meaning that “there must be strong grounds” for detention to be justified. The new, secret policy stated that any foreign national who committed a serious offence, should be automatically detained, unless there were exceptional compassionate circumstances.

After the secret policy was judged, by a lower court, to be illegal, the Home Office continued to fight the case, arguing that as they could have detained the individuals anyway, it didn’t matter that they were detained under an illegal policy.

The court heard evidence that during April and early May 2006, senior Home Office officials held internal meetings with the Home Secretary John Reid, in which he stressed the requirement to detain foreign prisoners until deportation.

Emails were sent, not only discussing the policy, but even discussing the fact that it might be illegal. After the secret policy was judged, by a lower court, to be illegal, the Home Office continued to fight the case, arguing that as they could have detained the individuals anyway, it didn’t matter that they were detained under an illegal policy.

The decision of the Supreme Court on Wednesday was that an unlawful policy does make detention unlawful. Compensation was kept at the minimul level of £1 in recognition of the fact that the detainees would have been kept locked up even without the unlawful policy.

Alison Harvey is General Secretary of the Immigration Law Practitioners Association, she told Channel 4 News that the judgement is an important one: “Deprivation of liberty is incredibly serious. Immigration deprivation of liberty is decided by an administrative official, with no time limit, with no automatic appearance before a court. If you don’t instigate a bail hearing you will never have one. This is detention that in many cases continues for years, particularly with ex-offenders. It’s incredibly important that there are as many safeguards on that as possible.”

Barriers to removal

So why are people spending so long in detention? Since 2006 the Home Office has faced many legal challenges to its policy on foreign prisoners. Despite being known as 'foreign' prisoners, many of the individuals concerned have lived, legally, for long periods in the UK and have family here. 

Some came as refugees when they were children and are then faced with deportation for crimes they commit as adults. If they now have families here, or have no living relatives back in their country of origin, they can fight deportation on the grounds of their right to a family life, under article 8 of the European Human Rights Act.

Some detainees are willing to go home but can't be deported, because the country they come from won't provide travel documents. Countries such as Iran, China and Eritrea often fail to cooperate with the removal of failed asylum seekers and foreign prisoners.

With no time limit on immigration detention, people are spending years locked up, waiting for their cases to be resolved.

Campaigners say that where removal is not possible or not likely to happen imminently, detainees should be released. 

Pierre Makhlouf is lead lawyer at Bail for Immigration Detainees, a charity that help immigration detainees apply for temporary release from detention. He told Channel 4 News that there needs to be a wider change in policy: “We hope that the Home Office will now be forced to consider the individual facts of each case and take into account all circumstances, including family ties and length of residency, when deciding whether or not someone is a risk to the country.

“To apply a sweeping and thoughtless approach to all these cases without considering the human aspect of each one is clearly both unlawful and immoral.

In a statement, David Woods, UK Border Agency’s Strategic Director of Criminality and Detention, said: “Our priority is to protect the public and we believe that foreign law breakers who have committed serious offences should be removed from the UK.

“I am pleased that the Supreme Court determined that these individuals should only be awarded nominal damages, which we are advised is typically no more than £5, but we take on board the Court’s criticisms of the Home Office’s conduct prior to 2008.

“Our detention policy is now clearly laid down in law, and we will continue to take robust action against criminals – removing thousands each year that have no right to be here.”

But Alison Harvey says the Government’s detention policy is a huge breach of human rights: “It’s a world that gets so little scrutiny. Given the degree of public outrage over detention without a court hearing for terror suspects, why isn’t there that degree of outrage for these people? There are extraordinary powers for officials to lock people up, not for a certain period, not until you see if a judge agrees, just to lock you up full stop.”