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.

As is now well documented, government ministers did not detain families for the ‘shortest time necessary’ and ‘as a last resort’, but partly in order to deter would-be future asylum seekers. As Justice Williams noted, quoting the UKBA head of detention, Dave Wood, the risks of families absconding remain very low. According to the Agency’s own guidelines, detention should be reserved only for those who have previously failed to comply with bail or reporting conditions or who present a threat or danger.

Home Office officials will try to save some face by pointing out that the policy of detaining families is not in itself unlawful. Meanwhile, everyone from the Prime Minister and Deputy Prime Minister downwards will insist that even if it is lawful, detaining families with children is no longer government policy and is soon to be brought to an end.

But in the light of Justice Williams’ verdict, which the Home Office has said it will not appeal, can a cash-strapped UKBA really run the risk of paying out six figure sums in compensation to every asylum seeking family it detains between now and May?

If the newly re-purposed Tinsley House ‘pre-removal’ facility results in children spending weeks or months in semi-detention, allowed out without their parents only in the company of government-approved ‘minders’, how confident will the Home Office’s lawyers be about going back to the High Court to argue the ‘last resort’ and ‘shortest possible time’ case?

This judgment lays to rest the ghost of New Labour’s ‘compassionate detention’ past. But the sound of the clanking chains of privatised detention regimes to come can just be heard on the distant fringes of Gatwick.

Nick Clegg has every reason to fear the voters of Oldham East and Saddleworth (and not just the ‘angry white’ ones) for back tracking on his election promises. Now, in the words of the late Lord Bingham, he and his government have to worry about the revival of an “older and nobler tradition…the remedy of habeas corpus, the most potent safeguard against executive tyranny the world has devised”.

If ‘executive lawlessness’ cannot and will not be addressed by parliament, then as Tom Bingham so powerfully argued, it is the duty of the justice system to protect the liberties and rights of subjects, whatever their immigration status or nationality.

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

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.

A discredited policy ... Yarl's Wood immigration removal centre. Photograph: Sean Dempsey/PA

Simon Parker, The Guardian, Comment is Free, Thursday 25 March 2010, 15.00 GMT.

Phil Woolas’s response to a further damning report on Yarl’s Wood immigration removal centre by the chief inspector of prisons shows that the government has to resort to scare tactics and lies to defend a policy that has been condemned by several royal colleges of medicine, the Faculty of Public Health, the former children’s commissioner for England, many leading Christian and Jewish faith leaders, all the major children’s charities, and 121 MPs — including 49 members of Woolas’s own parliamentary party.

It is simply untrue to assert, as the immigration minister does, that the only alternative to imprisoning children in high-security detention facilities such as Yarl’s Wood is separating them from their parents and putting them into local authority care. Australia and Sweden maintain families in the community even when their claims for asylum have been declared unfounded, and both countries have managed to achieve higher voluntary return rates than the UK’s as a consequence.

What is more worrying, however, is that Woolas appears to be backtracking on his own government’s commitment to seeking alternatives to immigration detention, such as the current community-based pilot scheme in Glasgow that is being run in conjunction with the local authority and the Scottish government.

In the runup to the general election it is increasingly clear that New Labour want to “out-nasty” the Tories when it comes to denigrating asylum seekers and refugees. Woolas described those detained in Yarl’s Wood as “illegal immigrants” even though he knows full well that the vast majority made perfectly proper and legal asylum claims. The fact that over half of the families in Yarl’s Wood are later released, as Dame Anne Owers points out in her report, completely undermines the minister’s claim that their removal has been properly decided by the independent courts. In fact hundreds of families who pass through Dungavel and Yarl’s Wood are subsequently granted indefinite leave to remain or refugee status because on closer inspection their claims turn out not to be “illegal” or “bogus” but well-founded.

An increasing number of families are being held in Yarl’s Wood under the “detained fast track” system – ie while their cases are still being determined by Home Office officials – a practice that has been condemned by the European commissioner for human rights and the European courts, but that the Leader of the House of Lords, Lady Royall, describes as “an unavoidable necessity for the DFT process”.

Woolas and his government are in clear breach of the council of ministers directive, which “provides for the special vulnerabilities of asylum-seeking children and minimum standards for arrangements for their welfare, treating the best interests of children as a primary consideration”. The directive came into force in UK law in February 2005 and requires states “to make special arrangements for the accommodation of children to meet their needs and best interests. This does not equate to detention”.

The Home Office’s increasing resort to scare stories about child trafficking follows on from a similar piece of nonsense that junior minister Meg Hillier came out with on the BBC’s Daily Politics show on Friday. She suggested that if the government stopped locking up children then childless asylum seekers would have an incentive to acquire a “get out of detention free kid” from a passing child trafficker.

The government’s constant talk of “illegal migrants”, “would-be child traffickers” and “frivolous” and “vexatious” abusers of the judicial system is intended to deflect attention from its own failed policies in treating asylum seeking families fairly and humanely, and to foster a climate of disbelief and contempt in relation to those who seek the sanctuary of our shores. No country can call itself civilised if it engages in the persecution of the persecuted, however popular the contempt for them may be among the public at large or how many votes a government that is desperately clinging to power thinks it may salvage.

After being transported in a caged van with an adult detainee on the long journey from Cardiff to Oxfordshire, Mashall was placed in a dormitory with seven adult men. The UKBA planned to put Mashal on a flight to Afghanistan on Tuesday 9 March where his parents and sister had been killed for collaborating with the allied occupation forces. His older brother who has been given refugee status is currently taking his GCSE examinations in Leicester and is frantic with worry at the fate of his younger sibling.

Mashal was released from Campsfield House IRC at around 7.30 on Thursday evening and is now with his foster carers in Cardiff. A full update including details of further action and support that would help Mashal’s case to be resolved quickly and to assist him in beginning to recover from the trauma he has experienced in his own country and here in the UK will follow.

Thank you to everyone who sent letters, faxes and emails to the Home Secretary Rt. Hon. Alan Johnson MP, Evan Harris MP and their local MPs.

The response has been overwhelming, heartening and invaluable.

Welsh Refugee Council today called on UKBA and Cardiff Council to act quickly to release Mashal Jabari, 14 years of age, from Campsfield detention centre, and to suspend removal directions until a full assessment of his age can be made. Welsh Refugee Council does not normally comment on individual cases, but in this instance believes that there are compelling compassionate grounds why this boy should be allowed to remain in the UK.

Zaki Jabar, aged 15, arrived in the UK alone and extremely traumatised in November 2008. He came from Afghanistan and when he left his father was missing presumed dead and his mother was sick. His family had been attacked after his father had given assistance to the American forces, and Zaki had seen his sister killed. He was placed in foster care in Leicester by Rutland Social Services and given Refugee Status. He is currently sitting his GCSEs. He was anxious to trace his younger brother Mashal.

Mashal Jabari arrived in the UK in October last year, and claimed asylum on arrival. By then he knew that both his parents were dead. He was assessed as being over 18 even though he said he was 14. He was sent to Cardiff where he was initially placed in the hostel for adult new arrivals. He was refused asylum in November. Welsh Refugee Council staff working in the hostel, who have now known Mashal for 4 months, have been extremely concerned because he seemed so clearly to be 14 rather than 18 and because he has been depressed and suicidal at the fear of being sent home to Afghanistan.

Mashal’s GP has stated in writing that Marshal appears to be under 18. Social workers in Cardiff are on record as saying that they think Mashal is under 18 following an initial assessment, but they have not carried out a full age assessment and so it has not been possible to persuade the Border Agency of his age.

Mashal said he had an older brother called Zaki who was also somewhere in the UK. Eventually, through a chance encounter, it has been possible for the 2 brothers to be reunited – they met last month in Leicester. Photos of the meeting show them with their arms around each other – Zaki the tall broad shouldered one, Mashal the small, boyish one.

Although the government issued its customary health warning that these figures are based  on ‘management information’ and therefore not subject to the detailed checks that apply to the publication of national statistics, this nevertheless confirms the fact that the detention of families is not being used when the independent courts have determined that the parents or children have no lawful right to remain, but as an arbitrary instrument of policy in order to drive up removal figures.

Despite reassurances to Parliament that the detention of children and families would be used for ‘the shortest time possible’, as Diane Abbott MP pointed out the average length of detention has continued to grow. According to the Minister, the average length of detention for children was 16 days in 2008-09, which is double the figure for 2007. The snapshot figure for 30 September 2009, found that 25 children had been detained for seven days or fewer, five for eight to 14 days, five for 15 to 28 days and ten for 29 or more days but less than two months. No figures were provided on the proportion of children who may have been subject to re-detention in the previous 12 months.

Ms Hillier, conceded that a child going through this process [of being woken in the early hours of the morning by complete strangers in uniforms and forcibly driven in a locked van to an immigration removal centre] ‘will find it very challenging’. Alastair Burt  asked if the Minister was ‘somewhat painting a picture that parents are making a deliberate choice to go into detention and have their children with them as if the alternative were an easy one’.

I would like her to recognise that for many parents, that choice is not easy at all. That is the dilemma in which they are caught and which the system has somehow to try to deal with – Alastair Burt, MP

The debate had been called by the Conservative Deputy Chief Whip, whose constituency includes Yarl’s Wood following a protest of women hunger strikers on Monday 8 February, during which 70 women were locked inside a hallway in the women’s wing of the removal centre without access to toilet facilities for several hours. One woman suffered a serious asthma attack, and the four alleged organisers of the protest have been sent to HMP Holloway. None of the women who were removed from Yarl’s Wood have been charged with any offences. Up to 5o women remain on hunger strike after more than 10 days.

The Minister was unmoved by the protests or the plight of families facing imminent deportation: ‘…many people will choose anything rather than willingly return to a situation. That can be for all sorts of reasons, and not just because they feel in physical danger. In the end, the parents make the choices that face them, however difficult they are, so some responsibility needs to lie there’.

In other words, it is the fault of the parents that their children are locked up, not the government or its agents who arrest and imprison them. However, the UKBA’s persistent claims that it always acts humanely and within the law are coming unstuck as a growing number of decisions by the independent courts are finding the Home Office guilty of wrongfully imprisoning asylum seeking families. Meanwhile hundreds of children continue to have their lives blighted by our country’s ‘firm but fair asylum and immigration system’.

“..the handling of this case as a whole, both prior to and following the bringing of judicial review, fails in several respects to meet the requirements of both the public interest in an efficient immigration system and the protection of individual rights”.

- Judge David Elvin

A FAMILY of asylum seekers are in line to receive tens of thousands of pounds in damages after they were unlawfully detained for three weeks.

A High Court judge yesterday ruled that Fred Nukagem, and his wife and children, were held for too long prior to a planned deportation to Cameroon due to the “procedural ineptitude” of immigration authorities.

Negotiations are now underway over how much should be paid to Mr Nukagem.

And the legal team for the 38-year-old, from Middleport, is also hoping to reach an agreement over a compensation settlement for his wife and three children.

Solicitor Hani Zubeidi, of London-based Fadiga and Co, said: “We are looking at tens of thousands of pounds because, quite frankly, this is a shocking case.”

Mr Nukagem, who says he and his family will be killed for political reasons if they return to Cameroon, claimed asylum after initially arriving in the country in 2003 as a student and later working illegally.

But his application was turned down and immigration officers raided his home.

He and wife Sandra Mbelle Yanga, as well as three-year-old twins Grace and Josepha, and Julie Sandra, aged one, were taken to Yarl’s Wood Immigration Removal Centre on November 5, 2008.

They were due to be deported five days later, which would give authorities the chance to administer one to two days of a pre-dosage of anti-malarial drugs to the children.

But it later emerged the UK Border Agency had been given the wrong information about the drug, as Mefloquine requires three weeks of pre-dosage.

The family were released on bail on November 26.

During a High Court hearing in December, Mr Nukagem’s lawyers argued the period of detention was unlawful as the family had been locked up on a misunderstanding.

They said, even with the right information, the family would have been detained for too long.

The lawyers also said there was also no reasonable basis to think they would flee as the family had complied with conditions imposed as part of their asylum application.

Yesterday, Judge David Elvin told the court: “While this form of delay and procedural ineptitude is all too frequent in this area of the law, and may be understandable up to a point – although not necessarily excusable – it is a particular cause for concern and criticism in circumstances which involve the detention of young children.

“Indeed, the handling of this case as a whole, both prior to and following the bringing of judicial review, fails in several respects to meet the requirements of both the public interest in an efficient immigration system and the protection of individual rights.”

A judicial review over the family’s right to remain in the UK is ongoing.

Negotiations over damages should be complete within 56 days.

Mr Nukagem, of Port Street, said: “We cannot go back to Cameroon. If we do we will be murdered because of my links to political groups.

“I’m quite prepared to contribute to society. I have paid taxes and everything in the past, and I’ve never been in trouble with the police. I just want a better future for my family.”

Matthew Coats, head of immigration for the UK Border Agency said: “We are disappointed with the court’s judgment.

“These people had no legal right to be in this country and our aim was to remove them as quickly as possible.

“We will learn lessons from this case.

“We are committed to providing protection to those genuinely in need of it.”