Month: April 2011

The invisible child detainees – Prison Inspectorate reveals neglect of children in short term holding facilities

Her Majesty’s Inspectorate of Prisons has recently published a review of the last six years’ inspections of short-term holding facilities. These facilities are intended to hold people detained for immigration purposes for short periods of time before or after arrival in the UK, and those awaiting transportation to long-term places of detention. One of the main criteria for assessing the effects of short-term holding facilities is safety:

Are detainees held in safety, with due regard to the insecurity of their position? In the case of children, the answer appears to be overwhelmingly no.

The review found that during the detention process

  • insufficient attention was given to ensuring the dignity of detainees
  • the use of handcuffs by immigration staff still prevalent
  • one centre recorded how a mother had been handcuffed during the journey there, despite the fact she was accompanied by her two young children

The use of unnecessary restraints can cause significant mental harm, particularly to children, and the review highlights the urgent need for UKBA and its contractors to establish a more stringent policy regarding their usage when dealing with potentially vulnerable people.

The majority of short-term holding facilities are not designed for long-term or overnight stays, and are without the most basic amenities. The review found that detention for over 12 hours was common, with many people being held for over 24 hours in non-residential facilities, without washing or sleeping facilities. Foil blankets, it was reported, were often the only means of keeping warm during these long periods of time.

These findings are particularly harrowing when considering the treatment of children.

As recently as 2010, an inspection of the Terminal 5 holding room at Heathrow Airport found that 68 children had been held in the preceding four months, 10 of whom had been detained for over 18 hours, with the longest detention recorded as 25 hours.

In addition to the long periods of time kept in holding, many facilities were found to be in urgent need of repair, whilst others were small and cramped, and sometimes exceeded maximum capacity. In these conditions, it was found that there was often no way to hold children and families separately, requiring staff to place children with unrelated adults:

There had been an incident when a man had harassed an unaccompanied 15-year-old girl and another young woman. Staff had challenged the man but had been unable to separate him or the young people for more than a few minutes as there was nowhere else to put them.

(Heathrow Terminal 3, 2007)

As this review highlights, the duty of care required of those operating short-term holding facilities was not being sufficiently met, particularly in the context of child detention. Whilst the facilities themselves often result in cramped conditions, with few options for separation of unrelated detainees, the holding of vulnerable children for undetermined periods of time without residential requirements is an infringement of those basic human rights that we often take for granted.

It is also entirely contrary to the coalition government’s promise to end the immigration detention of children, which the Deputy Prime Minister repeated to loud fanfare in December of last year.

Barnardo’s Telephone Protest Announced

Campaigners against the opening of new family detention facilities which are to be jointly provided by the global security and prisons corporation G4S and the UK children’s charity Barnardo’s have announced a BARNADO’S TELETHON for Tuesday 26 April 2011.

London NoBorders are urging opponents of Barnardo’s involvement in the brand new detention facility at Pease Pottage in Sussex, which has the capacity to detain in excess of 1,400 people per year, to call their nearest Barnardo’s regional office on Tuesday 26th April to protest against the charity’s involvement in the detention and deportation industry.

Below are the contact numbers for all the Barnardo’s regional offices:

London and South East       020 8551 0011
South West                  0117 937 5500
Yorkshire                   0113 393 3200
Midlands                    0121 550 5271
North West                  0151 488 1100
Scotland                    0131 334 9893
Wales                       0292 049 3387
North East                  0191 240 4800
Northern Ireland            0289 067 2366

For more info about the pre-departure accommodation see:
http://london.noborders.org.uk/node/481

Where now for the campaign to end child detention?

Syd Bolton, Solicitor, Children’s Legal Centre*

*This is the text of the speech that Syd Bolton gave to the End Child Detention Now/Shpresa

Keep Your Promise campaign launch, Oxford House, Bethnal Green, London, 26th March 2011.

Thank you all for being part of this campaign and for inviting me to take part in
this important event. On a day of united action across the UK against public sector
cuts; against the loss of essential services and tens of thousands of jobs in the
public and voluntary sectors especially; we must not lose sight of the very close
relationship between unemployment and hostility to migrants; between ever
stricter border controls and the politics of insecurity. The free movement and
privileges enjoyed by global corporations are in stark contrast to the restrictions,
conditions and barriers placed in the way of families, their children and relatives,
to enjoy their lives together in safety, dignity and with respect.

The use of immigration detention is an important cornerstone of the border
policing mentality of not just the UK, but the bigger joint enterprise that is the
European Union. It is a bitter irony that only a few weeks before Libya was
bombed, Gaddafi’s government was one of Europe’s official frontier gatekeepers.
Turning people back from Sub-Saharan Africa trying to reach safety in Europe.

I say all of this to place in context the continuing use of immigration detention for
families with children.

Last year, the new coalition government announced it would end child detention.
But it quickly became evident during the summer-long UK Border Agency (UKBA)
detention review process that this was a measure that UKBA would not give up
lightly, whatever the political intentions.

Call me naive but I had always understood that when a Minister made a public statement
it was meant to be enacted by the civil servants, not undermined. But all summer, the
UKBA made it plain that they were not willing to give up the power to detain children,
as part of the policy of ending the detention of children. In the many discussions about
how to end detention held with the UKBA over that review period, it was clear that the UKBA
simply would not entertain the possibility of a major plank of its border control
powers being removed.

Despite the political rhetoric and constantly asking the NGO sector to come up with
alternative solutions – which we did, repeatedly – at the end of the process, the
ultimate sanction of detention could not be taken away. The forceful views of the
UKBA were made to such an extent that the bold and brave political statements made
at the beginning of this new government’s tenure could not hold, and the Minister had
to reframe his language and speak in a more equivocal voice, compromising with the
UKBA on how far the ending of detention would be allowed to go.

The euphemisms abound, but the reality remains. Let us not buy into the spin
that detention of children has been ended. As the UKBA said in their glossy
presentations when this was announced just before Christmas, ultimately, as a
last resort, pending “ensured return” a few families would continue to be
detained but in much reduced numbers, for much shorter periods, in more
suitable “pre-departure (secure) accommodation” (whatever this might turn out
to be).

In other words, after all the hype, the UKBA has only agreed, after huge pressure
from campaigners, international observers, the courts and child health experts, to
move back to the position it had always claimed to be the case under its family
detention policies and operation instructions; that immigration detention of
families should only be used in exceptional circumstances and for the shortest
period possible.

Statistics and a recent succession of high court cases have shown that
those policies have not being followed and there remains a major
tension between child safeguarding and enforcement policies within the UKBA.

From a situation of the commonplace use of detention of families to one where it
may be used sparingly, indeed exceptionally and with a potentially more
transparent and accountable decision making and review process along the way is
a hard won and significant victory, make no mistake. Only time will tell whether
this actually happens in practice.

But it does not end child detention. The move simple re-brands detention. Other
respected voices who during the review had rather pragmatically, rather than it
seems on any principled basis, endorsed 72 hours detention at the end of the
process, have now changed their minds publicly and described it simply as a
repackaging exercise and called for an overhaul of the whole system.

This is not just our opinion. It is a fact that this new accommodation is detention,
whether it is called pre-removal accommodation or not; whether it has a play
area and no bars on the windows, whether after a risk assessment, families might
be permitted to go out on day release or let their children go out with detention
centre staff.

It is detention because the UKBA says so.

At a recent event to launch the new process, a senior Border Agency official said:

“legally it is detention, but it will look and seem totally different.”

And a UKBA fact sheet on pre-departure accommodation answers the question:

‘What rules will apply and under what legal power will you prevent
families leaving?’ with the answer:-

‘Powers to require the family to remain at the accommodation are derived
from Schedule 2 to the Immigration Act 1971. It will ultimately be
operated in accordance with new Short Term Holding Facility Rules.’

So we are left with a new, potentially better decision-making process. Only as a
last resort will detention be used, and the welfare of children is now supposedly
central to the considerations of whether or not to detain. Where this is
authorised, these conditions will satisfy statutory safeguarding and welfare
standards.

These processes now need to be tested and scrutinised. Already they seem to be
found wanting. The new family removals panel is not as transparent as it looks on
paper and it seems like it will operate more like the Special Immigration Appeals
Court panel, (the anti-terrorism court) where the subject in question does not get
to take full part or to see all the evidence, deliberations and reasons. The family
removals review panel itself does not seem to have relevant child welfare and
health expertise and will not publish its detailed findings. It is predicated on how
to remove, not whether to remove. It does not seem to have the best interests of
the child at the heart of its considerations.

There has been a lot of criticism in the media recently of community and
voluntary organisations choosing to work with the UKBA as part of these new
processes, including the provision of welfare services in detention. I leave it to
others to judge whether or not it is better for non-governmental organisations
(NGOs) to contract to work inside this system to ensure that child welfare
standards are met, or best left to the usual private sector security companies and
to local authorities.

Authorities who, like in Yarl’s Wood, always had difficulties
retaining social work staff and balancing their own resources and interests with
the challenges of meeting the welfare needs of children in detention.

Whether in doing so, the institutionalising culture of a detention environment,
even with nice wallpaper and a garden compound, behind a secure perimeter
fence, will over time affect the responses and attitudes of those responsible for
the safeguarding and welfare of children in that environment, remains to be seen.
The institutionalisation of the prison warder and all those working in jails for long
periods is well researched and documented.

A separate and, in my view, earnest discussion needs to be had about this kind of
contracting, particularly in this climate of austerity. Shrinking funds make it
increasingly tempting or, in some cases, necessary for charities to find funding
wherever the opportunity arises. But there are always high risks in working within
the machinery of state rather than holding it to account from the outside. Should
NGOs remain interested independent parties or become formal partners? What I
do know is that our aims and objectives as charities should not become distorted
by the opportunity that is presented, even where the intentions are good.

That is a choice that faces many not for profit organisations at the moment. Some
may think that they can do it better than the private sector and will be motivated
by the improvements they feel they can bring to bear on difficult and
controversial policies and practices. Others may not be so cautious and careful.
On this version of child detention, time and external scrutiny, including
independent inspection and judicial oversight, will be the judge.

But whether detention is used against parents and their children held together, or
whether a parent is detained and children and other family members are left
isolated on the outside, whether children are supposedly free to come and go
under escort, the facts and the legal position are undeniable. Children continue to
be subject to detention and will suffer from its consequences, directly and
indirectly.

Children will continue to suffer from the developmental and psychological
damage inflicted on them, by being uprooted from the communities they have
grown up in, made friends in, went to school in, were born in and want to live in.

It is not all bad news.

In late 2008 the UK ended its immigration reservation to the UN Convention on
the Rights of the Child, making every child equal in law not just in the rhetorical
assertion that “Every Child Matters”.

In 2009 the UKBA was required to follow statutory safeguarding duties to
safeguard and promote the welfare of children in the exercise of all its functions.

These are major shifts in domestic law and the UK’s acceptance of its
international legal obligations is to its credit. Nonetheless it is taking a long time
to work through into practice, and the courts have found the UKBA slow and
wanting in this regard.

Since the detention review started last year and the new scheme was proposed,
the Supreme Court issued a truly landmark judgment on the best interests of
children whose parents are subject to immigration controls. This ruling includes
British Citizen children who cannot be removed or deported but whose parents
might still be subject to removal, including detention and where this would result
in the constructive deportation of their children.

The case of ZH (Tanzania) v SSHD recognises from the highest court in the UK, that
the United Nations Convention on the Rights of the Child, is an integral part of UK
immigration and asylum law and policy.

In particular the best interests of children must be “considered first in decisions
affecting the child”, “must rank higher than any other”.

The judgement adds:

“It is not merely one consideration that weighs in the balance alongside other
competing factors and where the best interests of the child clearly favour a certain
course, that course should be followed unless countervailing factors of
considerable force displace them.”

The principle extends not just to decisions to remove a child or their family but
decisions to detain children under Immigration Act powers or to the separation of
a child from a detained parent.

The Secretary of State has conceded in court, that any decision which is taken
without having regard to the need to safeguard and promote the welfare of any
children involved will not be in accordance with the law.

In other words, where the UKBA detains a child or separates a child from his or
her parent(s) then a failure to show how the child’s best interests and welfare
have been assessed and then taken into account will render the detention
unlawful.

The “quality” of the detention centre and the length of detention may be relevant
factors, but it will be insufficient just to say that it is more child-friendly, or that
there is a now a child welfare provider in the accommodation centre. The needs
and best interests of each and every child have to be properly assessed and
considered when arriving at that decision.

The Supreme Court has said that the wishes and feelings of the child must also be
taken into account. If the UKBA cannot show how they have done this in every
single case, the decision is going to be flawed.

The Court of Justice of the European Union in Luxembourg has gone further still.

In March this year a Grand Chamber judgment in a case called ‘Zambrano’ – a
Belgian welfare rights case – held that a child who is born or registered as a citizen
of a member state of the European Union has all the rights of a European Citizen
under the Treaty of Lisbon.

These include the right of children to have their parents care for them and to
remain with them in the country of the child’s citizenship, so that as children
they are able to enjoy their full European Citizenship  rights. This means a
parent who is from a non EU country, irrespective of the parent’s immigration
status, or lack of it, whether a failed asylum seeker or not, must ordinarily
be allowed to stay with their citizen child.

In effect these families, including ones with British Citizen children, are no longer
detainable. If there is no prospect of removal then to detain in these
circumstances will, in my view, also breach the child’s European citizenship rights,
as well as their human rights. Whilst the UKBA clings to its patched-up detention
policies, the highest courts in the UK and in Europe are at long last recognising
the fundamental rights of every child.

Whatever the particular conduct of a child’s parents in their own asylum or
immigration history, the Supreme Court said profoundly in the case of ZH that:

“It would be wrong in principle to devalue what was in their best interests by
something for which they could in no way be held to be responsible.”

In my view, the detention of children is one of the ultimate ways of devaluing
their best interests.

Even if detention is not officially ended, justice and the rights of children demand
that it should be and the courts may finally render it to be an obsolete practice to
be consigned to an unenlightened and unacceptable part of our recent history.

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