Inspectors recommend an independent panel to review long-term detention cases

The long-awaited report by HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigrations confirms what most already know: long-term detention is a mess. The question is whether it suggests the first step towards a solution.

The mess extends to most areas of decision-making on long-term detention. Failure to consider all factors before detaining, including where a person was a victim of trafficking. “Little effort” made to contact the National Offender Management Service to obtain information in assessing risks of reoffending. “Inconsistent adherence” to the legal principle that the removal of migrants must be possible within a reasonable period of detention.

Monthly reviews of detention missed, late or not apparently conducted. Or seemingly conducted merely “as a matter of bureaucratic procedure.” Failures to consider evidence of post-traumatic stress and mental disorder, despite scathing criticisms in four recent High Court rulings.

Serious enough failings in themselves. Yet the cumulative effect is disastrous. The Inspectorates conclude that “detention of ex-prisoners appeared to have become the norm rather than… a rigorously governed last resort.”
Only the barest of glimpses are given of the effects on human lives, yet they are powerful enough.

The 21 year old who had spent five months in prison and a further two years and three months in detention, despite wanting to return to his country of origin and the Home Office confirming that he was complying with the process. The Inspectorates drily note that “for such a young man, this was a significant amount of time to spend in detention.”

Or the man who is father of a British child, and has a British partner. Detained for 18 months, he worries about his family and the deteriorating behaviour of his child. But the UKBA detention reviews noted that “he has no close ties in the UK that could provide him with any incentive to remain in one place.”
Poor quality decision-making has such an impact because of the lack of effective oversight and safeguards. Between 19% and 38% of people detained over six months had never had their detention reviewed in the bail courts. (Potential inadequacies of the UKBA files meant that the Inspectorates could not give a more accurate figure.) A quarter had no legal representative.

The Inspectorates diagnose a “lack of a consistent overall strategic approach” to resolving long-term detained cases. In a third of cases, there was no travel document to allow removal, and no clear prospect of achieving one. Some people wanted to return but faced obstruction from the authorities in their country of origin; others themselves refused to comply with the re-documentation process; in other cases, the Inspectorate found it impossible to establish whether UKBA allegations of non-cooperation were grounded. In all cases, these migrants were simply left in detention.

In the face of this confusion and drift, the Inspectorates propose a radical solution: an independent panel to review all cases of long-term detention to consider whether “exceptional and clearly evidenced circumstances” apply that can justify continued incarceration.

Could such a panel bring the expertise and evidence-based analysis that the UKBA so clearly lacks? Could it circumvent the politicisation that has infected the decision-making of an agency under constant and fierce pressure from Ministers and the tabloids?

Ultimately only a time limit provides a sure safeguard against indefinite detention. Yet rigorous reviews by a genuinely independent panel could potentially be a significant step away from routine reliance on long-term detention. The Inspectorates’ report is a compelling and authoritative statement of the urgency of the need for change.