David (not his real name) finished serving a custodial sentence over five months ago but he nevertheless remains in prison. He has been in the UK for over 20 years and has two children here. He is currently detained indefinitely under immigration powers in the very same prison where he served his sentence, while the Home Office pursues deportation action.

David is our client and a torture survivor. He recently tested positive for COVID-19. As a result, he was subject to a strict isolation period in which had to be locked in his cell for 24 hours per day and was allowed one shower per week. He told us that he used to enjoy going to the gym but since the isolation measures he couldn’t even exercise in his cell because he was unable to wash.

Immigration detention practices and locations have shifted considerably as a result of COVID-19, combined with the rush to remove asylum-seekers to EU countries before the Brexit deadline. One element of this that has received little scrutiny is the rising proportion of immigration detainees who are in a prison rather than Immigration Removal Centres (IRCs).

During the early part of the pandemic it was clear that deportation flights were almost impossible. As the virus threatened to spread rapidly through detention centres, the government released the majority of people held in IRCs. On the last day of 2019 there were 1,254 people in IRCs, by the end of June 2020 this figure had fallen to 330, and on the final day of September the figure stood at 541.

Meanwhile the number of people held in prisons increased. On the last day of September 2019, 22 percent of immigration detainees were held in a prison. By the end of June 2020, the figure was 53 percent, and at the end of September it was 44 percent.

Declining mental health

During his period of isolation, David's mental health declined. He already suffered from Post-Traumatic-Stress-Disorder. He has now requested an appointment with the prison doctor to receive stronger medication for his depression.

David has since been released from isolation but remains subject to a severe lockdown regime within the prison. He has been granted “bail in principle” on four different occasions but his detention has continued solely because the Home Office has not yet provided asylum support accommodation for him to be released to.

Everyday our legal advisers at Bail for Immigration Detainees (BID) hear similar first-hand accounts from clients about the excessively harsh lockdown conditions they are made subject to as a result of COVID-19.

All of our clients are in a similar position to David – they have served a custodial sentence and are being detained without limit while they await deportation, a process that can take many months, particularly during COVID-19. Our aim is to secure our clients’ release on bail.

Those that are kept in prisons are generally locked in their cells for at least 23 hours per day. Among our clients there is already a high incidence of mental ill-health. We have seen that after being kept in these conditions, mental health problems are exacerbated - many are struggling to cope.

A government report published in August warned that such severe measures: “have created a real risk of psychological decline among prisoners, which needs to be addressed urgently, so that prisoners, children and detainees do not suffer long-term damage to their mental health and well-being”. Nevertheless, severe measures may continue until 2022.

A right to legal advice

Unlike in IRCs there is no system for booking appointments with immigration solicitors in prisons. Communication with the outside world is highly restricted – there is no access to the internet, faxes or mobile phones.

Our casework therefore relies on a slow prison postal system. Immigration legal advice and representation which is scant during normal times is now virtually impossible to access. Most prisons only allow phone conversations of ten minutes at a time and in most cases these calls must be made during the time a prisoner is allowed out of their cell. Legal visits – scarce prior to the pandemic – have been cancelled.

In one case our client couldn’t be present, via telephone, at the very hearing that would determine his right to liberty, because there was a COVID-19 outbreak on his wing. Fortunately BID was able to provide representation in this case and he was granted bail, but for an unrepresented individual this would make access to bail virtually impossible.

This is why we are currently intervening in a legal challenge against the Lord Chancellor. The case concerns his failure to ensure access to immigration legal advice in prisons. In our view, those held in prisons face unjustified discrimination compared to those held in IRCs who benefit from a regular Detention Duty Advice scheme operated by the Legal Aid Agency.

The plea for release

As many predicated, despite the strict measures in place, COVID-19 is spreading with deadly rapidity within the prison system. Data published on 13 November shows 1,529 people have now contracted COVID-19 across 89 sites in the prison estate. More people in prisons tested positive for COVID-19 in October 2020 than in the entire period from March – September. 55 people have died. It is in this context that the use of prisons for immigration detention – an administrative rather than a criminal process – is irrational.

This is particularly so when the chances of deportation are significantly reduced due to disruption – in particular travel restrictions and flight cancellations – imposed by COVID-19. From April to June 2020, there were 80% fewer removals than for the same period in 2019.

So BID is launching a campaign to ask the government to release all immigration detainees currently held in prisons. We have sent a letter to the government co-signed by 40 organisations, and we have created a tool that enables people to write to their MPs to this effect. This practice has always been morally unconscionable but now, more than ever, urgent action is needed. It is difficult to conceive of a more silenced and marginalised group, made vulnerable to severe mistreatment by an unacceptable lack of oversight and safeguards.

This story is part of our series The Unlawful State: Stories from a Pandemic where we lift up the voices of those whose lives are being disproportionately affected by the coronavirus crisis and find out what civil society are doing about it. Click here for more.