“It’s different for foreign nationals”
There has been much discussion this week over the moral dilemma posed by Abu Qatada. If we, as a nation, want to remove someone who is considered undesirable from the country but can’t, is indefinite detention ever justified?
This question is a hugely important one for foreign national prisoners, who with much less fanfare and press interest are regularly detained for very long periods under immigration removal powers.
On the Today programme this week, when pressed to justify the decision to detain for so long without a criminal conviction, Hazel Blears said at one point: “it’s different for foreign nationals”.
At the beginning of January last year, 1600 foreign prisoners were being held beyond the end of their criminal sentence. Nearly a third had been held for more than a year and there are some individuals who have been held for two, three or even four years.
The power to detain someone while trying to remove them from the UK was substantially widened after the foreign prisoner debacle of 2006.
Charles Clarke lost his job when it was revealed that around a thousand foreign national prisoners had been released when their sentences ended, without being considered for removal. The Home Office came under huge pressure in the press and Clarke’s successor, John Reid, promised a new, tougher regime.
Originally, the power to detain for the purposes of removal only applied once someone had been issued with a deportation order. This was extended to allow the Home Office to detain people while it decided whether or not they should be removed.
There was a change to a presumption of detention, rather than a presumption of liberty, for foreign nationals coming to the end of a criminal sentence.
Now, it seems fair to have a system that does consider removal when a non-UK national commits a crime, but what is morally questionable is whether people should be detained in order for that to happen.
The first problem with this policy is that many people simply can’t be removed. Instead of establishing this while someone lives in the community, under probation conditions, the system uses the most punitive sanction available to hold an individual while they try to get travel documents for them, or legal challenges to deportation go through the courts.
Caught up in the net are people who have lived all their lives here, who have no memory of their ‘home country’ and who have committed minor offences.
The current system gives the Home Office no incentive to act quickly, either to get travel documents or establish what barriers to removal are. After all, if you have someone in prison for a set period – isn’t that long enough to consider and make a decision on whether they should be deported – and to hear their objections?
I met several people who said they first they heard of their deportation order was on the date they were expecting to be released from prison.
One 32 year old Iranian man, Ahmed, told me that nobody came to see him about his Iranian visa application until he had already finished his sentence. Iran is notoriously unhelpful in providing travel documents for failed asylum seekers and deportees, so Ahmed then spent two years waiting, each month being told by the Home Office that they were attempting to get documents for him.
So to get that clear – he wanted to go back to Iran, but due to delays outside his control, he was left in detention. He ended up serving the equivalent of a four year criminal sentence, after the end of the original sentence for a minor assault. He was extremely depressed and angry when I met him.
The situation we have now , of a presumption of detention, leads to enormous distress among individuals who have no idea when they will be released.
“Sometimes you think you will be there forever”, one man told me. All the people I met who had spent a long time held in this way were displaying high levels of anxiety, anger and depression.
Abu Qatada’s ongoing detention was justified on the grounds that he fought his own removal. This raises an interesting question. Is it morally justified to hold someone while they exercise their right to challenge their deportation?
Detention is a serious power to use against someone – particularly when no court is involved in using that power, it is merely an administrative decision, taken for the convenience of the state.
Take the case of T. His crime was a drug offence, related to his own addiction. He did fight his own removal, because all his family are here in the UK, he could barely remember life in his country of origin, he was in the UK legally, his children are British, he considers himself British.
He was detained for an incredible three and a half years because he refused to cooperate with the Home Office and return ‘home’.
He was eventually released, won a case of unlawful detention, was awarded compensation and has been granted his leave to remain in the UK again.
One of the things the judge discovered was that the Home Office had lied in his bail hearings, claiming to have submitted a request for travel documents to his embassy when they hadn’t actually done so.
A very expensive outcome for the Home Office, who might have had a quicker result if they had looked at his case in detail early on and taken into account his family links, rather than detaining him and pressing ahead with deportation.
This is not a group who will ever win much public sympathy. But those concerned with the application of powers of indefinite detention should be paying more attention to what happens to these individuals.