Government faces new legal challenge to immigration detention during pandemic

By agency reporter
May 28, 2020

Human rights charity Detention Action has launched fresh legal action against the Government over its immigration detention practices during the Covid-19 pandemic.

According to the challenge, the Home Office’s failure to disclose its COVID-19 detention policies has left many unable to understand or challenge the basis on which they are being held. In addition, Detention Action is challenging the Home Office’s “irrational and discriminatory” approach, which has led to inconsistencies in how new and existing detention cases are handled.

The challenge comes as the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill was debated in Parliament, with the Government facing renewed calls for its highly controversial policy of indefinite immigration detention to be brought to an end with the implementation of a 28 day time limit.

Last week, the Government settled a claim brought by Detention Action in March over the lawfulness of continued detention while global travel restrictions prevent removals from the UK, and while conditions in detention centres present a high risk to those detained. The case saw close to 1,000 released, reducing UK immigration detention to its lowest level for 10 years, and a commitment from the Home Office to review all detention cases.

Detention Action has now launched fresh legal action over the continued presence of hundreds in immigration detention centres, including large numbers of people with health conditions that put them at a higher risk from Covid-19, and those originally from countries which have imposed travel restrictions.

Detention Action is challenging the Home Office’s failure to disclose its policies concerning the basis on which people are being held during the pandemic or how their detention is being reviewed. The Home Office is required by law to publish such policies, and Detention Action claims that its failure to do so is affecting the ability of those detained, especially vulnerable detainees, to understand or challenge their detention.

On 22 March 2020, the High Court ordered the Home Office to disclose an updated list of countries to which removals are not possible, but it has failed to do so. On 1 May, the President of the First Tier Tribunal stated that he had been informed “that the Home Office have stated that they are not removing people at the present time to countries outside Europe”. However, the Home Office has failed to disclose any policy it is applying with regard to removals during the COVID-19 pandemic.

The challenge also concerns the Home Office’s “irrational and discriminatory” approach in applying inconsistent criteria to new and existing detention cases.

With COVID-19 travel restrictions limiting the Home Office’s ability to pursue removals, the detention of those from certain countries has been halted since 17 March 2020, unless they are considered to be “high harm”. This policy has not been applied to those already detained, leaving those from countries to which removal is not possible who are not “high harm” still in detention.

According to the latest figures, 368 people continue to be held in UK IRCs, including just 13 women at Yarl’s Wood, down from a total of 1,225 on 1 January 2020. Detention Action understands that more than half of those currently detained are classed as 'Adults at Risk'. Three cases of COVID-19 have so far been confirmed in UK IRCs (in Yarl’s Wood, Brook House and the Heathrow centres), but the extent of any outbreak is unknown as almost no testing of staff or those detained appears to have taken place.

Detention Action has instructed Duncan Lewis’ Public Law Team and Ayesha Christie and Chris Buttler of Matrix Chambers in this legal challenge.

Bella Sankey, Director of Detention Action, said: “People held in our immigration detention centres have the right to know the basis on which they are being detained. Despite earlier litigation forcing the Government to act and release hundreds of people, hundreds more remain detained and Government’s response has been slow and defensive. Priti Patel hasn’t produced the COVID detention policies she says she’s implemented, nor published the long list of countries she can no longer remove people to. This must all urgently be made public so that the people who remain in detention – including torture and trafficking survivors and those with underlying conditions – can challenge their treatment.”

* Detention Action is a national charity that seeks to defend the rights and improve the welfare of people in immigration detention. It works in Harmondsworth and Colnbrook Immigration Removal Centres (IRCs) near Heathrow Airport in London, Morton Hall IRC in Lincolnshire, and with people held under immigration powers in London prisons. https://detentionaction.org.uk/

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