QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of)
(1) Reetha Suppiah
(2) Danahar Govindasamy (a child, by Reetha Suppiah, his litigation friend)
(3) Emmanuel Govindasamy (a child, by Reetha Suppiah, his litigation friend)
(4) Sakinat Bello
(5) Mornike Sulaiman (a child, by Sakinat Bello, her litigation friend)
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|SERCO GROUP PLC
BEDFORD LOCAL SAFEGUARDING CHILDREN'S BOARD
Jonathan Swift QC Charles Bourne & Lisa Busch (instructed by Treasury Solicitors)
for the Defendant
David Mitchell (instructed by DLA Piper UK LLP) for the Interested Party
Laura Dubinsky (instructed by Liberty) for the First Intervener
Jane Oldham (instructed by Legal Services Unit, Bedford Borough Council)
for the Second Intervener
Hearing dates: 26, 27 & 28 October 2010
Crown Copyright ©
Mr Justice Wyn Williams:
The Defendant's policy in relation to detaining families with children
"As well as the presumption in favour of temporary admission or release special consideration must be given to family cases where it is proposed to detain one or more family member and the family includes children under the age of 18….. Section 55 of the Borders, Citizenship and Immigration Act 2009 (s.55) requires UKBA border functions to be carried out having regard to the need to safeguard and promote the welfare of children. Staff must therefore ensure that they have regard to this need when taking decisions on detention involving or impacting on children under the age of 18 and must be able to demonstrate that this has happened, for example by recording the factors they have taken into account. Key arrangements for safeguarding and promoting the welfare of children are set out in the statutory guidance issued under s.55."
Chapter 55.1.3 makes it clear that detention must be used sparingly and for the shortest period necessary. This precept is amplified in 55.3 which provides:-
"1. There is a presumption in favour of temporary admission or temporary release – there must be strong evidence for believing that a person will not comply with the conditions of temporary admission or temporary release for detention to be justified.
2. All reasonable alternatives to detention must be considered before detention is authorised.
3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved."
Chapter 55.3.1 makes the obvious point that all relevant factors must be taken into account when considering the need for initial or continuing detention. It then identifies many of the factors which will, most commonly, arise for consideration. They are:-
- "What is the likelihood of a person being removed and, if so, after what timescale?
- Is there any evidence of previous absconding?
- Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
- Has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry)
- Is there a previous history of complying with requirements of immigration control? (e.g. by applying for a visa, further leave, etc)
- What are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?
- What are the individual's expectations about the outcome of a case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?
- Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?
- Is the subject under 18?
- Does the subject have a history of torture?
- Does the subject have a history of physical or mental ill health?"
"The decision to detain an entire family should always be taken with due regard to Article 8 of the ECHR….and, where there are children under the age of 18 present, duty to have regard to the need to safeguard and promote the welfare of children. Families, including those with children, can be detained on the same footing as all other persons liable to detention. This means that families may be detained in line with the general detention criteria….
In family cases, it is particularly important to ensure that detention involving children is a matter of the last resort, e.g. alternatives have been refused by the family and an exhaustive check has detected no barriers to removal. It should be for the shortest possible time, i.e. removal directions are in place.
Detention of an entire family must be justified in all circumstances and there will continue to be a presumption in favour of granting temporary release.
Detained children are subject to enhanced detention reviews, and the Family Detention Unit reviews the detention of children at day 7, 10, 14 and every 7 days thereafter. The Family Detention Unit will also seek the authorisation to continue detention from the Minister for those families with children who remain in detention beyond 28 days.
Since December 2009 as part of the UKBA's implementation of the s.55 duty to safeguard and promote the welfare of children, the Family Detention Unit (FDU) holds the authority to require release of any family with children on the basis of welfare grounds raised in the FDU enhanced reviews.
Such authority will override wider enforcement grounds for detention when necessary and any requirement to release should be complied with expeditiously."
"s.55 of the Borders, Citizenship & Immigration Act requires the SSHD to make arrangements ensuring that UKBA functions will be discharged having regard to the need to safeguard and promote the welfare of children.
The detention of families with children will only be used as a last resort and for the shortest possible period of time. This reflects UKBA obligation under the UN Convention of the Rights of the Child. However, families including those with children can be detained on the same footing as all other persons liable to detention, and in line with the general detention criteria (55.1).
The decision to detain an entire family should always be taken with due regard to Article 8 of the ECHR and the UKBA's duty to safeguard and promote the welfare of children.
The following alternatives must always be considered primarily:
- Voluntary return
- Self check in removal directions
- Detention of head of household but see 45.6.3 for Splitting Families
Detention of families with children should be used only as a last resort and full consideration as to why it is considered the only option to effect removal must be recorded on section 2 of the FWF."
The circumstances leading to the detention of the Claimants at Yarl's Wood
The Claimants' accounts
The Suppiah family
The Bello family
The Defendant's account
"1c. Has the Applicant been made aware of how to go about making a voluntary return, in the event of an unsuccessful asylum claim?"
The question is followed by the words "Yes/No"; in the document the word "Yes" is circled. Clearly this tends to suggest that some kind of discussion took place about voluntary return between the First Claimant and the officers. What is not clear, however, is whether the scheme was being explained to the First Claimant on 15 January, for the first time, and she refused to participate in it or whether the document simply shows that at some earlier point information had been provided to the First Claimant about the scheme.
"Should you wish to appeal you must do so by the date given in the notice of decision. If you do not appeal by this date you are expected to leave the United Kingdom without delay or you will be removed.
The assisted voluntary return leaflet details how to contact the International Organisation for Migration. This independent organisation can offer help and advice on returning home. They can also offer reintegration assistance, this may include assistance in setting up a small business, educational or vocational training.
Should you choose to appeal this decision support will continue until your appeal rights are exhausted.
Your next scheduled reporting event has been set for Friday 3 April 2009 at Dallas Court. You should continue to report weekly until you leave the United Kingdom.
If you choose not to appeal, or if you appeal and your appeal is dismissed, arrangements will be made for you to be removed to Malaysia if you fail to organise your own departure from the United Kingdom. Failure to assist with the re-documentation process may lead to prosecution."
The decision to detain the Claimants
"6. On 15 January 2010 Ms Suppiah was offered an assisted voluntary return but declined that offer.
7. On 7 February 2010 the Secretary of State issued removal directions for Ms Suppiah for her removal on 10 February 2010. She was also served with an IS91R (Reasons for Detention) and a full factual summary with full details of her Immigration History. The original Asylum refusal letter was determined on 30 March 2009 and served in person on 2 April 2009. The removal directions were authorised by A/HMI Gus McDonald.
8. Ms Suppiah had no legal basis to remain in the United Kingdom, she had previously failed to comply with her conditions of stay by overstaying her 6 month entry visa and not leaving the United Kingdom when required to do so and also refused an offer of assisted voluntary return.
9. Ms Suppiah and her sons were then detained on 7 February 2010 for removal to Malaysia on 10 February 2010."
"1. TO: Reetha Suppiah
I am ordering your detention under powers contained in the Immigration Act 1971 or the Nationality, Immigration and Asylum Act 2002.
2. Detention is only used when there is no reasonable alternative. It has been decided that you should remain in detention because…."
There follows a series of reasons which, potentially, justify detention. The person completing the form is required to indicate which of the reasons apply in the particular case. In the case of the First Claimant the reasons said to justify detention were twofold; that her removal from the United Kingdom was imminent and that she had previously failed or refused to leave the United Kingdom when required to do so. Precisely the same reasons were provided to the Second and Third Claimant in support of the decision to detain them. The IS91R in each case was signed and dated on 7 February 2010. It is to be observed that the IS91R did not assert that the First Claimant was likely to abscond.
"It was the UK Border Agency's expectation that the Claimants would make immediate plans to leave the United Kingdom voluntarily once their appeal rights had become exhausted on 2 June 2009. However, they failed to do so and so assistant director Colin Berrington of Reliance House 20 Water Street, Liverpool, L2 8XU authorised on 28 January 2010 that they should be detained in accordance with paragraph 16(1) of Schedule 2 to the Immigration Act 1971 in order to enforce their removal from the United Kingdom in accordance with section 10 of the Immigration and Asylum Act 1999."
"5. Ms Bello arrived in the United Kingdom on 23 August 2007 by car from France using false documentation. She claimed asylum at the Asylum Screening Unit in Croydon on 17 August 2009 some 2 years later. She was treated as an illegal entrant on 17 August 2009.
6. The family were offered an assisted voluntary return on 22 September 2009 and this was refused. Ms Bello was placed on reporting restrictions and was required to report weekly, but she failed to report on 3 occasions.
7. The application for asylum was refused on 22 September 2009 and she became "appeal rights exhausted" on 15 December 2009.
8. Ms Bello had no legal basis to remain in the United Kingdom, she had previously entered the UK illegally, had failed to regularise her stay for almost 2 years, had not left the United Kingdom when required to do so and had refused an offer of assisted voluntary return.
9. The family was detained on 10 February 2010 for removal on 13 February 2010."
The Claimants' Detention at Yarl's Wood and its effects
"Danahar was working with the Curriculum Language Axis Service (CLAS) in school. He was also due to be assessed for Special Educational Needs due to concerns regarding learning difficulties in addition to the language problems in school….
Further to this, Danahar has been a pleasure to teach and has displayed nothing but excellent qualities during his time at the Derby High School."
"We are day 10 of detention and based on other cases may be looking at a further 3-4 weeks prior to removal.
There are two children in this family unit. My concerns over the possible length of detention relate to the 11-year old an age group which may find detention particularly problematic.
Please can you speak to LPL about release?"
On 23 February the same person wrote:-
"I am still of the view that we should release …. I have spoken with Dawn Maclean (LPL) and she has agreed to release."
"Removal was deferred as Mornike was unwell and unfit to fly. Notification has been received today [19 February] from Yarl's Wood, concerns have been raised as Mornike is still unwell, it appears she has had an allergic reaction to the anti-malarial medication. The alternative medication has been given to her but there are concerns around how her immune system could cope with potential illness in Nigeria. Mornike is clinging to her mother and is no longer the lively child she was when detained, her appetite has diminished she is distressed if her mother will not carry her everywhere."
Under the heading "Reasons for continued detention" there appears:-
"Mornike who was assessed as a lively child upon detention has been unwell for almost a week as a result of an allergic reaction to the anti-malarial medication, she has been give the alternative medicine but continues to be unwell and concerns have been raised by Yarl's Wood with regard to her health and well-being as she has become clingy and distressed if her mother will not carry her everywhere.
The case owners were considering releasing the family on 19 February before the case for concern was received,
"It is impossible to be certain, but it seems much more likely than not from Mrs Suppiah's account that these problems were associated with if not caused by the manner of her transfer and the conditions she experienced in detention, set against a background of abuse and trauma in Malaysia. The fact that her son has now been referred to the Child and Adolescent Health Services may add weight to this view."
(This last sentence is a reference to the Second Claimant)
"5.1 In February 2010 the immigration officials and the police arrived at her home at 7.00 in the morning. Her older son was sleeping at the time. She described a "hammering" on the door. She was immediately 'reminded' of the fear that she used to feel when her family of origin had discovered her and her husband's latest hiding place. She described a sense of terror.
5.2 They were taken in a van, "like prisoners", to Yarl's Wood Immigration Removal Centre and remained there for approximately 18 days.
5.3 Her older son….told by the teacher in the detention centre that he was in prison. She said that her son became quiet and withdrawn and would not eat nor talk to her and would hardly drink. When he did speak he asked her if they were in prison and what had they done wrong.
5.4 She described how both her children suffered from diarrhoea and vomiting. She said that many children in the centre also suffered from diarrhoea and vomiting. She told me that having to frequently ask for antibiotics and simple pain killers, such as paracetamol. She was denied access to the usual medications prescribed by her GP prior to her admission to Yarl's Wood. She was eventually allowed to see a doctor due to chest pain. She said that she and her children were "treated like criminals".
"He acknowledged that they had all been subject to searches, but had not had to strip off. Their rooms and belongings had been searched. He had seen fights between other detainees, the food was of poor quality and they had to wait a long time for it. He did not have access to recreational activities. He was able to attend school of a sort but was critical of its value. He was woken early by all the noises in the place."
The Professor also conducted what he describes as a systematic inquiry of the Second Claimant's stress reactions following "the Anxiety Disorder Interview Schedule for children." The Second Claimant described traumatic events in his life – all of which occurred before detention at Yarl's Wood – but also asserted that he had been very frightened by his experience of being taken to Yarl's Wood. The Second Claimant told the Professor that he avoids reminders of being at Yarl's Wood, that he has trouble sleeping, that he loses his temper more and that he has difficulty paying attention.
"After carefully considering all the available evidence, I agree with Professor Yule's opinion that Danahar was emotionally traumatised by the chain of events taking place between 7 and 24 February 2010, and as a result developed symptoms of post traumatic stress disorder with co-morbid symptoms of depression as described by Professor Yule.
However, in my view, the trauma happened to a young man who had already been chronically traumatised by the interpersonal violence and other adverse events in his country of birth. I would expect Danahar to have been suffering from the chronic traumatic symptoms on his arrival in the UK.
In my opinion, trauma in relation to Yarl's Wood was super-imposed on his pre-existing post traumatic symptoms.
In my view, the removal to Yarl's Wood on the morning of 7 February 2010, and then subsequent removal to the airport on 10 February 2010, was much more traumatising for Danahar than his actual stay at Yarl's Wood which was a period of two weeks.
I also agree with Dr Yule's view that Danahar has developed episodes of low mood. However, in my opinion these low moods shifts are not associated with any functional disability."
Later in his report Dr Ahmad said that the only area of Professor Yule's report with which he had any area of disagreement was that he was "not as confident as he is that the residual PTSD symptoms, which Danahar clearly has, can be solely or primarily be attributed to his period of detention."
"Reetha stated there were no outstanding appointments for the children although she is working with a support group in the community to enable Danahar to access counselling. Reetha informed the assessment that Danahar's younger years were very traumatic due to physical abuse inflicted on him by paternal family members. Reetha described Danahar being cared for by her sister-in-law and brother-in-law. Reetha states this was as she was told he would receive a better life and Reetha could seek employment. Danahar became withdrawn during this time though according to Reetha viable reasons were provided by the alleged abusers. Reetha stated Danahar finally shared that his 'carers' were regularly placing a spoon on a hot stove and inflicting pain by holding this to his toes. Reetha states the impact of this abuse has left him emotionally scarred hence the special needs issue being raised in education."
The First Claimant did not suggest to Ms Gallagher that detention was exacerbating the psychiatric or emotional problems from which her son was suffering.
The detention of children, in particular at Yarl's Wood, and its potential effects
a) The Intercollegiate Briefing Paper published in 2010 by the Royal College of General Practitioners, Royal College of Paediatrics and Child Health, Royal College of Psychiatrists and UK College of Public Health;
b) A paper entitled "The mental health of detained asylum seeking children"; written by Matthew Hodes and published in the European Journal of Child Psychiatry in 2010;
c) A report prepared for the purposes of these proceedings by Dr Dora Black entitled "Psychiatric Report on the Effects of Detention of Children";
d) A report prepared for these proceedings by Dr Kimberley Entholt entitled "Psychological Report on the Effects of Detention on Children and Families".
e) A paper written by Lorek and others (including Dr. Enholt) and published in 2009 entitled "The mental health difficulties of children held within a British immigration detention center: A pilot study";
f) A paper written by Robjant, Hassan and Katona and published in 2009 in the British Journal of Psychiatry entitled "Mental health implications of detaining asylum seekers: systemic review";
g) A paper written by Robjant, Robbins and Senior and published in 2009 in the British Journal of Child Psychology entitled "Psychological distress amongst immigrant detainees: A cross-sectional questionnaire study";
h) A paper written by Mina Fazel and Derek Silove and published in 2006 in the British Medical Journal entitled "Detention of Refugees";
i) A paper written by Steel, Silove, Brooks, Momartin, Alzuhairi and Susljik published in the British Journal of Psychiatry in 2006 entitled "Impact of immigration detention and temporary protection on the mental health of refugees".
j) A report entitled "Safeguarding Children" published in July 2005 by HM Joint Chief Inspectors.
There can be no doubt, in my judgment, that these papers do, indeed, support the submission advanced by the Claimants and Liberty set out above.
"Yarl's Wood, near Bedford, is the main immigration removal centre for women and families. This was the centre's first full announced inspection since it was taken over by Serco in April 2007. Despite the upheaval of this change of management and a significant reduction in staff, the centre was performing reasonably well in many areas. However, as with all immigration removal centres, there was insufficient activities for detainees. We were also particularly concerned by the length of detention of some children and the damaging effect it had on them.
The plight of detained children remained a great concern. While child welfare services had improved, an immigration removal centre can never be a suitable place for children and we were dismayed to find cases of disabled children being detained and some children spending large amounts of time incarcerated. We were concerned about ineffective and inaccurate monitoring of the length of detention in this extremely important area. Any period of detention can be detrimental to children and their families, but the impact of lengthy detention is particularly extreme. ……
Yarl's Wood is to be congratulated on sustaining reasonable performance in many areas, despite the upheaval of the change of management and reduction in staff numbers. However, significant concerns remain, particularly the lack of activity for detainees, which is a failure that we have identified across the immigration detainee estate. Even more worrying was the plight of children detained for increasing periods of time with insufficient provision to meet their needs. Yarl's Wood must seek to meet these concerns, but they are ultimately issues for the UK Border Agency, which must urgently address them."
"Yarl's Wood is the only immigration removal centre that holds only women, children and families. The inherent vulnerability of the population has meant that it has been subject to particularly active scrutiny.
This inspection found there had been some improvements in the centre since the last inspection, particularly in relation to conditions, services and support for children. There was a new school, professionally run, which attempted to provide a good curriculum for the wide range of transient children held. The youth club and youth worker provided much-needed support and activity and nursery provision was good. Social workers participated in weekly multi-disciplinary meetings to discuss the welfare of each individual child.
In spite of these improvements, and the support which individual members of staff provided, we continue to have concerns about aspects of the detention at the centre. The first related to the detention of children. In spite of the centre's considerable and commendable efforts, the fact is that detention clearly and adversely affected children's welfare, as our interviews with and observations of detained children during the inspection made clear.
What was particularly troubling was that decisions to detain, and to maintain detention of, children and families did not appear to be fully informed by considerations of the welfare of children, nor could their detention be said to be either exceptional or necessary. Over the past 6 months, 420 children had been detained, of whom half had been released back into the community, calling into question the need for their detention and the disruption and distress this caused. Some children and babies had been detained for considerable periods – 68 for over a month and one, a baby, for 100 days – in some cases even after social workers had indicated concerns about their and their family's welfare. Detailed welfare discussions did not fully feed into submissions to Ministers on continued detention.
Yarl's Wood was an improved and largely well-run centre. However, there were two main findings from this inspection. The first is that the conditions, activities and services for children, within the centre, had improved significantly, but this, while welcome, could not compensate for the adverse effect of detention itself on the welfare of children, half of whom were later released back into the community."
"1. Detaining children for administrative reasons is never likely to be in their best interests or to contribute to meeting the Government's outcomes for children under the Every Child Matters framework. The administrative detention of children for immigration purposes should therefore end.
2. Exceptional circumstances for detention must be clearly defined and should only be used as a measure of last resort and for the shortest period of time in line with the requirements of Article 37(b) of the United Nations Convention on the Rights of the Child (UNCRC).
3. The UK Border Agency (UKBA) should develop community-based alternatives to detention which ensure that children's needs are met, and their rights not breached, during the process of removal. We acknowledge that UKBA needs to take a risk-based approach to immigration. However, we do not believe that this needs to be incompatible with acting in the best interests of the child as required by Article 3 of the UNCRC.
4. Since the detention of children is unlikely to end immediately as we would wish, the recommendations made at the end of each chapter should be urgently implemented to ensure children are treated in compliance with Every Child Matters and the UNCRC.
5. In line with international human rights standards, the Government's removal of the reservation against Article 22 of the UNCRC, the Government should monitor compliance with these standards particularly in relation to the detention of children.
6. UKBA should set out the accountabilities of all agencies, from the Home Office through to the providers, clearly and unambiguously so that detainees, interested agency and the public are aware of the respective agencys' responsibilities and accountabilities with regard to the detention and removal of failed asylum seekers."
"[The] principal recommendation is that the administrative detention of children for immigration purposes should end. UKBA agrees that the detention of children and their families is regrettable – but we differ on whether the recommendation is realistic in practice.
UKBA fully recognises its responsibility towards children…..
But our responsibility towards children has to be exercised alongside our duty to enforce the laws on immigration and asylum. This includes ensuring that people leave the UK when we and the independent courts have found them not to have a legal right to be here. We would much prefer it if families in this position left the country voluntarily. Unfortunately, some families refuse to do this, even when provided with numerous opportunities to do so, including incentives provided under the Assisted Voluntary Returns Scheme. Advice about this scheme will include information about families who have actually returned under AVR, (with an opportunity to contact those who have returned successfully), as well as the opportunity to talk to IOM case workers. But where families still refuse to leave, UKBA has to be able to enforce removal and a short period of detention is a necessary, albeit an unfortunate, part of that process. It must be remembered that it is the parents' refusal to comply with UK law that makes this action necessary. We also consider that maintaining the family unit together, including any children, is preferable to splitting the family. It is for this reason that we think that [the] first recommendation is impractical."
That said UKBA accepted the importance of exploring community-based alternatives to detention and, further, that detention should be used only in clearly defined circumstances as a last resort and for the shortest period of time.
"It is not clear what the 'numerous opportunities' given to families to leave voluntarily amount to in practice, although it is encouraging to hear from UKBA that 350 families left under AVR arrangements last year.
During our visit to the Family Detention Unit (FDU) we were shown the booking-in forms which LEOs complete and on which a place in the family detention estate is predicated. The booking of a family into detention requires the LEO to certify that 'voluntary return has been offered to the family, and that the offer and response are documented on file.' We do not have information regarding how the quality, method and timing of delivery of the information about AVR by the case owner or the enforcement office is audited by anyone, and this must be addressed.
We are aware that information on AVR is provided in writing in the 'reasons for refusal' letter sent to Applicants when their initial claim is refused. However, a lack of face-to-face opportunities for Applicants to discuss AVR with their case owner after receipt of the initial decision fall short of a meaningful attempt to ensure families have a full opportunity to consider their options. UKBA have offered further meetings….to discuss these issues, which we welcome.
Of the 10 families interviewed while we were at Yarl's Wood, 8 were asylum Applicants and 2 were visa overstayers. We were able to test the proposition that families are 'fully informed' about AVR and know that they will be detained if they do not depart voluntarily."
"19. In this report we have made 3 main recommendations on improvements which can be made to the legal process, the processing of asylum claims and the treatment of detainees pending legal decisions. Any and all of these recommendations will reduce the number of children held in longer-term detention, and UKBA should make every effort to reduce the need to detain small children for sustained periods of time. We fully accept the principles behind detention – we cannot envisage UKBA fulfilling the tasks set for it in any other way – but we insist that this power be used only sparingly, as a last resort and for the shortest possible time.
20. While it may be argued that adopting these courses of action may lead to a slight increase in the risk of absconding, we believe that this risk is very low and in both moral and financial terms it is a price worth paying to prevent the long-term, indeterminate detention of small children."
Under the heading "Facility at Yarl's Wood" the Committee had this to say:-
"Having visited the centre ourselves, it is clear to us that great strides have been made since HM Chief Inspector of Prisons' report of August 2008. We endorse Sir Al Aynsely-Green's comments in that regard. We note that Yarl's Wood appears to be a much better facility than the one so heavily criticised in the past. We note the new, purpose-built school which suggests UKBA's good intentions for improving conditions for detainees at Yarl's Wood. However, it must be remembered that Yarl's Wood remains essentially a prison. There is a limit to how family-friendly such a facility can be; and while we accept that conditions have improved, we still regret that such a facility is needed in the first place.
13. We are convinced that the improvements at Yarl's Wood are tackling the symptoms of the problem rather than the cause and that sustained improvements in the treatment of children in the immigration system will be as a result of reform to the overall asylum process. Focusing on the undoubted, very visible, improvements at Yarl's Wood alone does not address the wider issues."
The Committee noted that Yarl's Wood was not adjacent to a major port or airport. It recommended that, longer term, UKBA concentrated its efforts on sites which were next to Gatwick and Heathrow airports respectively. In the view of the Committee "this will help to underline to both parties that detention is intended to be the final stage in the process."
"7. We do not understand why, if detention is the final step in the asylum process, and there is no evidence of families systematically "disappearing or absconding", families are detained pending judicial reviews and other legal appeals. The detention of children for indeterminate periods of time (possibly for 6-8 weeks), pending legal appeals must be avoided. We recommend that after a child has spent an initial fortnight in detention and every 7 days thereafter, UKBA notifies the Home Office, and the Children's Commissioner as to why detention for this amount of time is justified and why the continued detention of this child is necessary.
8. We further recommend UKBA consider the use of electronic tags, reporting requirements and residence restrictions while reserving the right to detain as an alternative to indeterminate detention pending final legal decisions. More generally we urge UKBA to work from the principle that the detention of young children must only ever be used as a last resort and the length of time spent in detention should be reduced."
"1. The UK Border Agency not only has responsibility for securing the border but also for identifying and removing those who have no right to be in the United Kingdom. This inspection focused on the effectiveness and efficiency of the UK Border Agency's approach to removing families, taking account of its obligations to carry out its functions having regard to the need for safeguard and promote the welfare of children.
2. There was limited evidence that an individual action plan existed for each family which took account of the family's welfare needs and arrangements for them to return home. In particular there were no performance measures by which case owners were assessed in this regard and no evidence that reporting requirements, outreach work, information on voluntary return or plans for enforced removal were co-ordinated.
3. Staff and managers demonstrated a clear awareness of the advantages, both in financial and welfare terms, of families with no right to remain returning home voluntarily. However, there were no consistent standards of promoting the option of voluntary return, no consistency in where, when and by whom the discussions with the family should take place and no plans for national analysis of pilots being undertaken in different regions.
4. The Family Welfare Form – an audit trail of the planning decisions on how to progress each case – was the primary mechanism for managing the welfare of families. However, this was not completed effectively on a consistent basis. There was a lack of consistent understanding about the purpose of the form and the responsibility for its completion.
5. Arrests for families occurred primarily at the family home between 6.30am and 7.00am. While there were reasons for arresting at this time of day, there was no evidence that an assessment had been made of each family's individual circumstances to decide if this was the most effective or proportionate approach. Alternative arrangements had been made in Glasgow where families were arrested at a reporting centre but there was no evidence that the pros and cons of this approach had been considered on an individual basis in other parts of the UK.
6. Reviews of detention were conducted at different levels of authority at different times without a clear rationale. While enhanced reviews by one part of the UK Border Agency and individual regional managers provided greater assurance that the families' welfare was being actively considered, there was no indication of why such enhanced reviews should not take place routinely in all parts of the UK Border Agency dealing with children.
7. Individual regions had developed some innovative approaches to managing family cases but there was no national collation or analysis of management information to identify trends or best practice.
8. There was poor file management and retrieval with incomplete audit trails and important details of cases held in different files or data bases."
Twelve important recommendations were made to address the problems addressed in that executive summary. Those most relevant for present purposes were that UKBA should (1) develop a clear action plan for each family involving, amongst other things, options for returning voluntarily and options for arrest and detention (if appropriate); (2) clarify how voluntary return should be offered to families and, thereafter, train members of staff accordingly; (3) ensure that Family Welfare Forms were completed in full; (4) ensure that all alternatives, including self-check in were exhausted before enforced removal was considered; (8) review the level of seniority required to maintain the detention of families, ensure there is a clear rationale for the level at each detention review and ensure that each review takes full account of the family's circumstances; (10) ensure that a clear audit trail is maintained in every family case and clarify the information that should be stored on the file and the case information database; (11) review its training requirements for staff to ensure that they are aware of cultural issues when engaging with families; and (12) publish and analyse a clear set of management information in respect of families with dependent children to provide greater transparency and to fully inform policy and practice.
The relevant legal framework
"If there are reasonable grounds for suspecting that a person is someone in respect of whom [removal] directions may be given….that person may be detained under the authority of an immigration officer pending –
a) a decision whether or not to give such directions;
b) his removal in pursuance of such directions."
"There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 11A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment, Mr Robb correctly submitted that the following four principles emerge:
i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv) the Secretary of State should act with the reasonable diligence and expedition to effect removal.
47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if a reasonable period has not yet expired.
48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 of the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation, the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely to often be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return at once. In the latter case the loss of liberty involved in the individual's continued contention is a product of his own making."
Longmore LJ expressly agreed with the judgment of Toulson LJ. Keene LJ also agreed but gave a judgment of his own. At paragraph 79 he had this to say about the issue of voluntary repatriation:-
"I am not persuaded by Mr Giffin that the refusal by this detainee to return to Somalia voluntarily when it was possible to do so was some sort of trump card. On this I see the force of what was said by Dyson LJ in R (I) at paragraph 52, namely that the main significance of such a refusal may often lie in the evidence it provides of a likelihood of the individual absconding if released. After all, if there is in a particular case no real risk of his absconding how could detention be justified in order to achieve deportation just because he has refused voluntary return? The Home Office in such a case, ex hypothesi, would be able to lay hands on him whenever it wished to put the deportation order into effect. Detention would not be necessary in order to fulfil the deportation order. Having said that, I do not regard such a refusal to return as wholly irrelevant in its own right or having a relevance solely in terms of the risk of absconding. It is relevant that the individual could avoid detention by his voluntary act. But I do not accept that such a refusal is of the fundamental importance contended for by the Secretary of State."
"6. But what is the question? Mr Michael Fordham, appearing pro bono with Mr David Pievsky for the RLC, began by submitting that it was whether the system was capable of operating fairly. It is plain, however, as Mr Fordham accepted, that in a straightforward case, such as where the Applicant himself has advanced no Convention reason for his persecution, or what he fears cannot on any possible view be persecution, the system, however speedy, is perfectly capable of operating fairly. A more appropriate question, in our view, is the one posed by Mr Robin Tam for the Home Secretary: does the system provide a fair opportunity to asylum seekers to put their case? This avoids the arbitrariness inherent in Mr Fordham's alternative approach of seeking to construct a "typical" case. It embraces, correctly, the full range of cases which may find themselves on the Harmondsworth fast track. There will in our judgment be something justiciably wrong with a system which places asylum seekers at the point of entry – that is to say, when no more is known of each one than that he is an adult male asylum seeker from a country on a departmental "white list" – at unacceptable risk of being processed unfairly. This, therefore, is the question which we propose to address.
7. We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words, it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effect. This is why the intrinsic fairness of the fast track system at Oakington was dealt with by this court as a discrete issue in R (L) v The Secretary of State for the Home Department  1 WLR 1230, paras 48-51."
"(1) The Secretary of State must make arrangements for ensuring that –
a) the functions mentioned in sub-section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection 2 are provided having regard to that need.
(2) The functions referred to in subsection (1) are –
a) any function of the Secretary of State in relation to immigration, asylum or nationality;
b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of sub-section (1)."
It is not in dispute that the persons who authorised the detention of the Second, Third and Fifth Claimants were engaged in discharging a function within paragraphs (a) and/or (b) of section 55(2). Similarly, the person or persons charged with the function of reviewing the detention of those Claimants was discharging a function within section 55(2)(a) and/or (b).
"t) To maintain a secure border, to detect and prevent border tax fraud, smuggling and immigration crime, and to ensure controlled, fair migration that protects the public and that contributes to economic growth and benefits the country."
The guidance goes on to remind readers that these duties are carried out by applying and enforcing the Immigration Acts and the Immigration Rules which necessarily includes removing from the UK persons who have no legal entitlement to remain in the UK and, in certain circumstances, detaining those individuals pending their removal from the UK.
"(1) The purpose of detention centres shall be to provide for the secure but humane accommodation of detained persons in a relaxed régime with as much freedom of movement and associations as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and their right to individual expression.
(2) Due recognition will be given at detention centres to the need for awareness of the particular anxieties to which detained persons may be subject and the sensitivity that this will require, especially when handling issues of cultural diversity."
Rule 11 provides:-
(1) Detained family members shall be entitled to enjoy family life at the detention centre save to the extent necessary in the interests of security and safety.
(2) Detained persons aged under 18 and families will be provided with accommodation suitable for their needs.
(3) Everything reasonably necessary for detained persons' protection, safety and well-being and the maintenance and care of infants and children shall be provided."
Rules 33 to 37 contain detailed provisions relating to health care. Rule 33 specifies that every detention centre shall have a medical practitioner (vocationally trained as a general practitioner) and a health care team. Those persons are charged with the responsibility for the care of the physical and mental health of the detained persons at the centre. Rule 33(5) specifies that every request by a detained person to see the medical practitioner shall be recorded by the officer to whom it is made and forthwith passed to the medical practitioner or nursing staff at the detention centre.
"States Parties shall ensure that:
b) no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
c) every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."
"….The authorities are under an obligation to protect the health of persons deprived of liberty. The lack of appropriate medical treatment may amount to treatment contrary to Article 3. In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment."
The Claimants submit that by parity of reasoning the same must apply to young children and to other vulnerable individuals, including those with limited command of English and/or who face real difficulties in obtaining legal advice and representation. Fifth, when assessing the conditions of detention for the purposes of Article 3, account has to be taken of the cumulative effects of the relevant considerations – see Dougoz v Greece  34 EHRR 61 at .
"Right to respect for private and family life.
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"103. Added to those general considerations here is the specific and important consideration of the children and the Secretary of State's own advice to the effect that:
i) Families that are detained are held very briefly prior to their removal from the UK. There is a presumption in all cases in favour of granting temporary admission or release, and each case will always be considered on its merits.
ii) Removal directions should be dependent on any pre-departure element of anti-malarial treatment being completed.
104. In considering these matters it seems to me 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.
105. Those policy considerations are strongly reinforced by the UNCRC, as Wyn Williams J held in S which informs the correct approach to Article 5 and by the Strasbourg Court in Yousef v Netherlands  36 EHRR 20 at paragraph 73 stressing (albeit in the context of Article 8) the paramount nature of the interests of children when balancing competing considerations. It seems highly improbable that lesser weight should be accorded to children's interests in the context of Convention rights under Article 5."
"The court reiterates that in judicial decisions where the rights under Article 8 of parents and those of the child are at stake, the child's rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail…."
The First Claimant's family.
"The following points should have been considered and the reasons noted in full for the decisions taken. This is to form an audit trail of the available option,
• Is detention essential.
• Has SCI been considered.
• Has detention of head of household and SCI for the family been considered.
• Time/date of visit to detain including reasons for the choice.
• Recce completed, note factors to influence practical deployment and risk assessment.
• Number/gender of officers required/justify numbers.
• Names and dates authorising action.
• Is method of entry necessary.
• Reason if one not obtained.
• Key obtained, ascertain lay out of property and any information from accommodation provided re family or guests.
• Health/welfare aspects considered.
• All paperwork prepared."
There is then a space for the details to be written in. In the form in this case no details of any kind are provided.
"….The bedrooms increasingly resembled prison cells (graffiti, odours, dilapidation). There is no privacy in the bedrooms. For example, during the interview with the little girl, several people in an illegal situation frequently came in without knocking and sat on the next bed. On several occasions, men in the courtyard also put their heads up against the bars of the window of the bedroom. When you look through the window, you see men walking round the courtyard fenced in with wire, as well as a great deal of aeroplanes passing overhead. I also noticed, in the bedroom of the child and her mother, a mattress placed directly on the ground, on which a young girl was sleeping…. The 127 bis detention centre was not a suitable location for the well-being and proper development of a child, and in which, therefore, no child should be living."
"This centre is situated…..next to the airport. It is surrounded by two very tall metal fences and several rows of barbed wire. There is a strong sensation of being in prison. There are bars on the windows.
The centre comprises two buildings. The first building houses the social, administrative and medical staff, as well as the disciplinary solitary confinement cell. Passing through an internal courtyard, you find the building reserved for the migrants, behind the rows of trellis topped by 5m-high barbed wire.
The centre houses both people seized on the territory in an illegal situation and asylum seekers, men, women, children accompanied by adults or otherwise."
The Claimants in Muskhadzhiyeva had been detained in December 2006 and January 2007.
"a). With regard to the child plaintiffs
55. The court points out that, combined with Article 3, the obligation that Article 1 of the Convention imposes on the High Contracting Parties to guarantee to any person falling within their jurisdiction the rights and freedoms sanctioned by the Convention command them to take measures to prevent the said persons from being subjected to torture or to inhuman or degrading sentences or treatment. These provisions must permit effective protection, namely of children and other vulnerable persons, and include reasonable measures to prevent bad treatment of which the authorities were or should have been aware. (Mubilanzila Mayeka and Kaniki Mitunga, mentioned above ¶ 53).
56. In the aforementioned ruling, the Court concluded that there had been a breach of Article 3 due to the detention of a minor in the "127" centre situated near Brussels Airport and intended for the detention of foreign nationals pending their removal. It pointed out that the conditions of the detention of the plaintiff, then aged 5, were the same as those of an adult, and that the child had been detained for two months in a centre initially designed for adults, while she was separated from her parents, with nobody having been appointed to look after her and with no supervisory psychological or educational accompaniment measures having been dispensed by qualified staff especially for the purpose (ibid ¶ 50). It stressed that it should be kept in mind that the situation of extreme vulnerability of the child was decisive and took precedence over the status of foreign national in illegal residence (ibid¶ 55).
57. The Court does not lose sight of the fact that this case differs from the aforementioned case in terms of an important element: in this case the children of the plaintiff were not separated from them.
58. Nevertheless, in the opinion of the Court, this element is not sufficient to exempt the authorities from their obligation to protect children and adopt adequate measures with regard to the positive obligations arising from Article 3 of the Convention (ibid ¶ 55).
59. In this respect, the Court notes that the four child plaintiffs were aged 7 months, 3½, 5 and 7 at the time of the facts. The age of at least two of them was such that they were able to be aware of their environment. They were all detained for more than 1 month in the "127 bis" detention centre, the infrastructure of which was unsuitable to house children. The reality of the conditions of detention in the "127 bis" centre emerges from the remarks made by the general delegate….
60. In addition to this is the worrying state of the child plaintiffs' health which was pointed out by independent doctors. Thus, the Court notes that on 11 January, "Médecins Sans Frontières" drew up a psychological certificate concerning the plaintiffs, which was added to the file. This certificate stated that the children, particularly Khadizha, were showing serious mental psychosomatic symptoms, as a result of mental and somatic trauma. Khadizha was diagnosed as suffering from post traumatic stress disorder and presenting excessive anxiety to a much greater extent than children of her age: she was having nightmares and waking up screaming, she shouted, cried and hid under the table as soon as she saw a man in uniform and banged her head against the walls. Liana was suffering from serious respiratory problems.
61. On 22 January 2007, a doctor from the same organisation drew up a second psychological certificate. It stated that the psychological state of the plaintiffs was deteriorating and that, in order to limit the mental damage, the family would have to be released. It also stated that the mother of the 4 children was experiencing a situation of stress so extreme that it was intensifying that of the children, with the children feeling that their mother was incapable of protecting them.
62. The Court wishes to point out in this respect the terms of the Convention on children's rights, of 20 November 1989, and particularly of Article 22 of it, which urges States to take the appropriate measures in order that a child seeking to obtain refugee status receives protection and humanitarian assistance, whether he be alone or accompanied by his parents.
63. Taking into account the young age of the plaintiffs, the duration of their detention and the state of their health, diagnosed by medical certificates during their detention, the Court considered that the living conditions of the child plaintiffs at the "127 bis" centre had reached the threshold of seriousness required by Article 3 of the Convention and resulted in a breach of this Article.
b). With regard to the first plaintiff
64. The Court points out that the point of knowing whether a parent is a victim of bad treatment inflicted on his child depends on the existence of specific factors that grant the suffering of the plaintiff a dimension and a character which are distinct from the emotional distress that may be considered to be inevitable for the close relatives of the person who is the victim of serious breaches of human rights. Amongst these factors feature the closeness of the blood relationship – in this context, the parents-child connection will be given priority – the particular circumstances of the relationship, the extent to which the relative had been a witness to the events in question and the manner in which the authorities had reacted to the claims made by the plaintiffs. The essence of such a breach resides in the reactions and the behaviour of the authorities towards the situation that has been reported to them. It is mainly in the light of this last element that a relative may claim to be a direct victim of the behaviour of the authorities (Mubilanzila Mayeka and Kaniki Mitunga mentioned above ¶ 61)
65. The Court considers the difference between this case and the aforementioned case, that is the separation of the mother and the child, takes on its full meaning in the case of the plaintiff. In the Mubilanzila Mayeka & Kaniki Mitunga case, the Court concluded that the mother had experienced intense suffering and concern due to the detention of her daughter, about which she was only informed and where the only measure taken by the authorities consisted of giving her a telephone number on which she could reach her.
66. On the other hand, in this case, the plaintiff was not separated from her children. If a feeling of powerlessness to protect them against the detention itself and the conditions of the detention may have caused her anguish and frustration, their constant presence with her must have slightly eased this feeling, such that it did not meet the threshold required to be classified as inhuman treatment. Consequently, there has not been a breach of this Article with regard to the first plaintiff."
The Fourth and Fifth Claimant
"Given her immigration history it would seem that Ms Bello would be unlikely to report if released at this stage.
Unless Mornike's health worsens, or she is not fit to be detained maintain detention at least until it is known if the JR is to be expedited."
"I agree with the decision to maintain detention at this time. If a JR can be expedited then we can expect removal to take place within a reasonable time period. There is nothing at this time to suggest that Mornika's illness makes her unfit for detention. If the JR cannot be expedited or if Mornika's illness means that continued detention is not appropriate for her then the family should be released. Ms Bello has not always reported as required. She has remained in the United Kingdom illegally for an extended time. These factors do not give confidence that the family would report voluntarily for removal if released."
The lawfulness of the Defendant's policy