Category: High Court of Justice
This article originally appeared in openDemocracy, 13 January 2011.
In the High Court on Tuesday, Mr Justice Wyn Williams might have driven the last nail into the coffin of Britain’s infamous and long-running child immigration detention policy. The detaining of children for immigration purposes has been denounced as a ‘scandal’ and a ‘moral outrage’ by the Prime Minister and Deputy Prime Minister, yet the current Home Secretary has spared no expense in expertly and robustly defending the policy.
The action was brought at the end of last year by Public Interest Lawyers on behalf of a Malaysian family of three and a Nigerian mother and her baby. Liberty and Bail for Immigration Detainees supported the action (Suppiah and Others vs SSHD and Others). In a judgment that noted Nick Clegg’s repeated disavowal of child detention as morally repugnant, the judge found that:
“The Defendant’s current policy relating to detaining families with children is not unlawful. There is, nonetheless, a significant body of evidence which demonstrates that employees of UKBA have failed to apply that policy with the rigour it deserves.”
Specifically, the UK Border Agency were held to have breached the families’ rights to liberty, privacy and family life (their Article 5 and Article 8 rights), though not Article 3, which relates to inhuman or degrading treatment or punishment.
The Home Office does not contest that both families were arrested in the early hours of the morning, were given only a short time to pack, transported in locked and caged vans, and that a very young girl was body searched with her arms outstretched to the obvious distress of her mother.
Reetha Suppiah and her two sons, and Sakinat Bello and her baby, were then locked up at the infamous Yarl’s Wood Detention centre. As with many thousands of families to be sent there, soon after being taken into detention the children became sick and suffered from diarrhoea and vomiting. Reetha’s eldest son continues to suffer from a fear of authority and recalls seeing ‘policemen everywhere’ in detention.
In finding that “the detention of children is not something which should ever be lightly countenanced or allowed to continue except in such circumstances which clearly justify it and which do not reasonably permit of alternatives”, Justice Williams gave a clear and resounding rebuke to the policy of previous home secretaries, immigration ministers and their senior civil servants. Read more
This article is reproduced by kind permission of Public Interest Lawyers
Reetha Suppiah and Sakinat Bello and their young families are typical of the hundreds of recent victims of our immigration detention system. Over the course of their time in Britain, they have integrated into our society and formed significant ties to it. After years of fear and violence in their home countries, they were able to live in a comparatively peaceful environment, reporting regularly to the authorities.
Then, one February morning, their homes were raided by teams of UK Border Agency officials. Danahar, Reetha’s eleven year-old son, assumed that he had done something wrong and that he was being taken away by “policemen” in the dawn raid. Sakinat’s two year-old daughter, Ewa, was lifted from her bed whilst still asleep and awoke in the arms of a uniformed stranger. The families were loaded into vans with meshed windows for onward transportation to Yarl’s Wood, a notorious detention centre the Children’s Commissioner has described as “no place for a child”. Its family wing was finally closed last month, but children are still detained at a centre near Gatwick Airport.
Reetha and her boys spent 17 days in detention. Sakinat and Ewa were released after 12 days, despite the fact that nine days earlier Ewa had been declared “unfit to fly” by a doctor. All the children became sick almost immediately upon arrival.
The Court was presented with little evidence of child and family welfare having been taken into account at any stage prior to detaining the families. The detentions were thus unlawful “for their entire duration.” At no time did anyone ask the most basic question: “Is detention necessary?”. On the facts of this case, the answer could only have been “no”.
The lamentable failures ranged from the depressing (such as a failure to complete the crucial Family Welfare Form) to the ludicrous (the assessment that a 2 year-old child ought to be accorded 90 points out of 100 on a “Harm Matrix” upon being checked in to Yarl’s Wood). Those failures had to be viewed alongside the compelling evidence presented by Liberty, the human rights group, which detailed the many similar cases in which children are detained unnecessarily. Detentions lasted an average of 16 days, but periods of 61 days were not uncommon. Given the expert consensus on the inherently harmful effects that detention has upon children, the reckless, tick-box manner in which the Suppiah and Bello families were consigned to these prison-like conditions is indeed, in the words of Nick Clegg, “a moral outrage”.
The judge made clear that the proper interpretation of the Home Secretary’s power to detain children was that it could only be used in “exceptional circumstances” – circumstances that did not prevail here. These families’ basic human rights – to liberty, to security of the person, to private, home and family life – were summarily violated. The Government breached its statutory duties under the Borders, Citizenship and Immigration Act 2009 and its own policy which, on paper, should mean that detention is used only as a last resort. Mr Justice Wyn Williams adjudged that it would be “premature” to hold that the relatively new policy was incapable of being applied lawfully in practice, or that it gave rise to an unacceptable risk of unlawfulness. This was due to the existence of certain key elements. But the application of that policy to Reetha, Emmanuel, Danahar, Sakinat and Ewa was unlawful from start to finish.
The courage shown by these families in the face of the spectre of removal from the UK is remarkable. The dignified way in which they fought for redress should send a clear signal that asylum seekers may be vulnerable but are not helpless. They must be treated with the same level of respect accorded to everyone else.
As the Coalition prevaricates in its attempts to end child detention, it must ensure that the interests of the child lie at bedrock of its alternatives. Jim Duffy, Public Interest Lawyers
The New Statesman reports on a BBC investigation that government pilots involving 113 families in London and the North-West had given families with children just two weeks to voluntarily leave the country. Two families who refused to comply were taken into detention and deported shortly after and two families accepted voluntary re-settlement packages. Significantly only 3 of the 113 families involved in the pilot ceased contact with the authorities or disappeared – emphasising the extremely low probability of such families absconding.
As Samira Shackle writes, the real problem is that as a consequence of cuts to legal aid and the closure of specialist providers of legal support to refugees and asylum seekers, ‘the vast majority of people seeking asylum are not given anything resembling a fair hearing’. That appears to be of no concern to the Home Office as it prepares new tough compliance controls involving separately detaining one or other parent in order to force the family onto a flight, electronic tagging, and ‘non-detained’ accommodation new Heathrow Airport from which one assumes it will be difficult to escape.
What the BBC report fails to point out, however, is that following the coalition government’s announcement that ‘the moral outrage’ of child detention was to end, 37 children have been held in immigration detention between 1st June and 4th October according to the UKBA’s own figures.
It would appear that only the Deputy Prime Minister finds the continued incarceration of children by his Home Office colleagues disturbing. With the talk of ‘ending child detention’ shifting to Damian Green’s increasing reference to ‘minimizing detention’ – a practice the Home Secretary staunchly defended in the High Court only a week ago – it is not surprising to hear Dame Pauline Neville-Jones say that ‘I trust that we will not be in a situation in which children are detained for any length of period at all; but certainly if they were, education would be a very important factor’. In other words, we may well need to keep open Yarl’s Wood.
So much for the Deputy Prime Minister’s promise to end child detention for good. The UKBA are trying to soften up the Clegg/Huhn wing of the government for a predictable ‘there is no alternative to detention’ conclusion to yet another flawed pilot. This ill-thought out scheme has everything to do with ramping up the removal figures and nothing to do with allowing parents and children a fair hearing from a genuinely impartial justice system. It is good to hear the Children’s Society voicing its opposition to this despicable attack on vulnerable children and their families. We now need to see all the charities and NGOs who were persuaded to join the government’s flawed and cynical review to follow suit and publicly distance themselves from its punitive and dangerous consequences.
The Today report can be heard on BBC iplayer [about 50 minutes in].
On Tuesday 26 October, a judicial review challenge to the Government’s family detention policy reaches the High Court in London. The Claimants – two single mothers and their young children – are seeking an order declaring the Government’s family detention policy unlawful. In May 2010, the Coalition Government announced that it would end the detention of children for immigration purposes, a practice that the Deputy Prime Minister described as “a moral outrage”.
Five months on, children continue to be held at Yarl’s Wood Immigration Removal Centre for indeterminate periods in prison-like conditions, the Government’s plans having stalled and been watered down. Last February, Reetha Suppiah, Sakinat Bello and their children were arrested by UK Border Agency officers in dawn raids. They and their children were loaded into vans with caged windows and driven to Yarl’s Wood in a state of confusion and distress. Reetha and her two boys (aged 1 and 11) were detained for 17 days, whilst Sakinat and her two year-old daughter were held for 12 days before being released back into the community. Both families had been reporting regularly to the immigration authorities prior to their arrest. Upon arrival at Yarl’s Wood, all of the children became sick, suffering from diarrhoea and vomiting.
It appears that the welfare needs of the families were not properly taken into account or even assessed prior to the decision to detain, and the detention experience has had a profound effect upon them. Reetha’s eldest child was particularly badly affected and recalls seeing “policemen everywhere” in Yarl’s Wood. Since his release, he has lived in continuous fear of re-arrest. The families claim that their detention was unlawful and that it subjected them to cruel, inhuman and degrading treatment in violation of Article 3 of the European Convention on Human Rights. They also allege breaches of the children’s rights under the UN Convention on the Rights of the Child.
Jim Duffy of Public Interest Lawyers said today: “Our clients’ experiences and the broad expert consensus point to a practice that is inhumane, destructive and unnecessary. Child detention has to end now.” The claim will be heard over three days from 26th until 28th October.
For further information please contact Public Interest Lawyers on 07912 691 727.