Two years ago trained members of the public attending immigration bail hearings published their first report, "A Travesty of Justice". Today the Bail Observation Project reports again. Unfairness and lack of due process persist.
"I am not going to abscond. I trust myself not to. This place is getting into me. Home Office can't get travel documents. I beg you, I bow down, let me out of here."
These were the words of a man from Gambia, who had been detained in an immigration removal centre and was applying for bail. He had been held for seven months and this was his third application. Like the previous applications it was turned down. He was not physically present in the court but sitting alone in a room in Harmondsworth Immigration Removal Centre near Heathrow Airport. He was facing a screen which provided a video link to a hearing centre near London. He had no legal representative and no one to stand surety for him.
At the first hearing the judge said that if something did not transpire in a week or so, ie if travel documents had not been arranged, the court would have to give bail. At a third hearing a month later, with a different judge, bail was again refused. This time the judge said "I can’t grant bail for an address that has not been checked by the Home Office for suitability."
An observer commented that the applicant was very distressed, repeatedly saying that he would return and could not stand detention any longer. She said:
"I could see his distress quite well from where I was sitting next to the video screen, but I thought the judge wouldn’t be able to see as well from the back of the court."
At the end of the session the screen was switched off and the observer said:
"It feels like it was so easy to switch off the TV screen and not see this man’s distress."
Every year more than 25,000 people are detained for immigration purposes; such detention is indefinite, they do not know if they will be held for days, weeks, months or even years. However, they have the right to apply for release on bail; this offers a conditional freedom to live in the community while their cases are being considered.
But there are many obstacles to obtaining bail and the case described above illustrates some of the difficulties. It is a serious disadvantage to have no lawyer to present your case, and no one to guarantee that you will comply with bail conditions.
Different judges take different approaches, and Home Office procedures are frequently subject to delays. The video link system, now standard for most immigration bail hearings, distances the applicant from the court and is also technically unreliable.
The case study quoted above comes from a new report Still a Travesty: Justice in Immigration Bail Hearings, which records the findings from observations of 220 applications for bail at four hearings centres under 44 different immigration judges. The picture which emerges is one of a system that is fundamentally flawed and of acute human distress.
This is the second report from the Close Campsfield Campaign. In our first survey (reported here on openDemocracy) we found there was a serious inconsistency in practice which resulted in outcomes that we felt were unfair. At that time the bail guidance notes for immigration judges had lapsed and there was no clear benchmark against which to monitor the processes of bail hearings. New guidance was issued in July 2011 and we felt it would be useful to undertake a second survey to see what changes might have occurred and what difference they might have made.
The new guidance provides an up to date and publicly available framework. It has useful things to say about the length of detention, suggesting that three months is a substantial period and six months a long time. This was quoted by legal representatives but most judges did not refer to this, and one who did commented that this was "an extra burden laid on us". The guidance also refers to the burden of proof saying that "It is for the immigration authorities to justify the need for detention." (para 11). But this remains guidance, it is not prescriptive and in the majority of cases the bail summary outlining the Home Office case for detention was not questioned.
Often existing rules are not followed. The Home Office says that certain categories of people should not be detained: this includes those with mental or physical infirmities and people who have been tortured. We found in our survey a man with a spinal injury, another with renal failure, a torture survivor with an independent medical report, and a woman with mental health problems, all of whom should not have been detained, and all of whom were refused bail.
We are disappointed that there seems to have been little change and feel that in some areas the situation has got worse. Interpreting services have been outsourced to a private company which has failed to deliver. 92 people in our sample needed interpreting, and of these 33 had difficulties. Sometimes the interpreter spoke the wrong dialect or even the wrong language. Sometimes the interpreter lacked experience of the courts. For example Dari speaking Afghan applicants agreed that they could communicate effectively with the Farsi speaking interpreter but the interpreter’s initial question: "What is a bail application?" gave cause for concern.
Sometimes judges failed to ensure that all the proceedings were interpreted, so it was not possible for the applicant to know what was going on. In some cases the interpreters did not show up and the hearing proceeded without them.
We expressed concern about video link in our first report. Its use is now routine. At its most basic the system does not work well, with poor sound and inadequate lighting. The machinery frequently broke down — in one case 11 times during the same hearing. People appearing in-person were much more likely to be granted bail.
The cost of detention is very high. It has been outsourced to private companies and is financially expensive. The human cost cannot be measured. Many of the people whom we saw were visibly distressed. One bail applicant likened the experience of detention to torture, another said "No decision, no deportation, nothing. It’s doing my head in."
A spokesman for UNHCR said: "There are well known negative and at times serious physical and psychological consequences for asylum seekers in detention."
The stress and strain of detention is not confined to the detainee alone. Relationships are also affected. In one case the applicant and family members present were all in tears. The guidance notes advise that "the impact on the children’s welfare must be carefully considered." One judge specifically excluded tagging from the bail conditions saying "it is not good for children to see tagging". Another allowed sureties to bring very young children into the courtroom. But in another case, where bail had been refused and children were brought to the window in the door in the passage and were smiling and waving to their father the judge said:
"Stop that at once, guard, go and tell them to move away from the door."
The children had not seen their father for nine months.
Our report paints a mixed picture. We saw good practice which should be a common standard. But there is no mechanism for quality control. The guidance for judges does not constitute rules, and the regulations on the detention of vulnerable people are broken. There is no independent record of proceedings to enable comparisons.
Our presence was welcomed by families, by sureties and by some judges, who said it was good to have the public present. It is possible that public presence may make a difference. This is a dark corner of the immigration and asylum system, and we have attempted to throw some light on it. We believe that immigration detention is neither right nor necessary. Until such time as it is ended it is important that people in detention can exercise their right to apply for release on bail. This is a matter of justice, freedom and human dignity.
Close Campsfield Campaign (2011) Immigration Bail Hearings: A Travesty of Justice? Observations from the Public Gallery, is downloadable here.