While the number of people held in Immigration Removal Centres (IRC) fell as a result of the pandemic, the number of people detained in prisons for immigration reasons increased. A freedom of information response obtained by the charity Bail for Immigration Detainees (BID) has revealed a concerning rise in the numbers of people held in prisons under immigration powers, awaiting transfers to an IRC.
On the last day of 2019, there were 307 individuals held in prisons under immigration powers. By the last day of 2020 this had increased to 519, and a year later it was 602. As of January 2022 that figure stood at 304, three times the amount it was in 2019.
BID said: “We see hundreds of people being kept in prisons for administrative convenience even when it is not lawful, being arguably unnecessary.”
In February 2021, in the case of SM v Lord Chancellor the High Court found there to be an unlawful and discriminatory difference in treatment between people held in prisons for immigration reasons and those in IRCs.
People held in IRCs should have access to the Detained Duty Advice Scheme (DDAS), which provides a free 30-minute appointment with a lawyer at the centre, funded by legal aid without reference to merits or financial eligibility. However, no equivalent scheme exists for people held in prisons for immigration reasons.
Not having access to publicly funded legal advice is a breach of convention rights
It is the responsibility of the individual held in prison solely for immigration reasons to contact a legal aid solicitor and persuade them to provide advice and representation. This must be done without access to the internet or external sources of information.
In his judgment on the case of SM v Lord Chancellor, Mr Justice Swift concluded: “The failure to afford immigration detainees held in prisons access to publicly funded legal advice to an extent equivalent to that available to immigration detainees held in IRCs under the DDAS, is in breach of Convention rights.”
In response to the judgment, on 1 November 2021 the Legal Aid Agency amended the legal aid contract to provide a legal advice service for all immigration detainees held in prisons, whereby they can access 30 minutes of advice without reference to their financial eligibility.
The scheme was designed to remedy the discriminatory treatment identified by the court and serve as a functional equivalent to the Detained Duty Advice Scheme for people who are held for immigration reasons in IRCs.
However, BID found that 74% of people it spoke to had not received any additional information about how to get legal aid help with their immigration case.
One person said: “I’ve been asking for legal aid but no one talks to you about that and no numbers to ring – everyone is a joke, no one does their job, from the prison to the Home Office.”
The Prison Service is due to unblock the numbers of legal aid advisers on prison phones. Under the scheme, each prison must provide people held for immigration reasons with a list of legal aid firms in cloys proximity to the prison. It is then up to the individual to contact a legal aid provider to request an appointment, with the provider arranging a legal visit, and the Legal Aid Agency paying for their time and travel.
The law is complex
The parliamentary Joint Committee on Human Rights’ detention report of February 2019 states: “Given the challenges individuals face in detention, and the complexity of the law, legal advice and representation is crucial to help individuals to pursue their rights effectively”.
Even in cases held before a tribunal, such as bail applications, which are intended to be more accessible for applicants than other immigration proceedings, those without legal representation face considerable disadvantages.
BID said in its report: “Representation is especially vital for those pursuing deportation appeals – which have become very difficult to win due to successive changes in legislation.”