In 2013 Home Secretary Theresa May announced that her new immigration bill would create a “Hostile climate for illegal immigrants.” Her particular target was foreign national prisoners, (FNPs), an unpopular group, demonised by politicians and the media. The Immigration Act 2014 has implications for all migrants but FNPs are especially vulnerable because their freedom of movement and ability to exercise their human rights is severely curtailed. FNPs currently continue to be held for deportation in prison after their sentence is completed although they should be transferred to an Immigration Removal Centre (IRC) in accordance with immigration rules. Although the presumption of liberty applies they are detained indefinitely. This is also the case in IRCS where immigration detainees are locked up purely for administrative convenience and unlike most European countries there is no time limit on their detention.
The Immigration Act denies “foreign criminals” an in- country appeal against deportation. Effectively this means to participate in their appeal, they will have to instruct their lawyer from the country they have been deported to, where they may lack food, shelter and other vital resources. They may also fear for their life. Deportation can be challenged on human rights grounds but the new powers of the act prevent the use of family life arguments in most cases and the case will be certified unless the applicant can show that they would face, “a real risk of serious, irreversible harm.” Prior to this automatic deportation already existed for foreign prisoners with a sentence of 12 months or more. This was introduced in 2008 by Labour in an attempt to appease public opinion after the Home Secretary, Charles Clarke was criticised for releasing a number of FNPs who had committed serious offences.
In 2013 legal aid was cut for deportation appeals – just one aspect of the draconian cuts introduced by Chris Grayling, Tory Minister for Justice. This is a serious barrier to challenging a deportation order as many detained migrants cannot afford private legal fees which can amount to thousands of pounds. The double punishment of automatic deportation condemns prisoners to exile in countries they left as children or of which they retain traumatic memories. It breaks up couples, families and friendships, creating a class of people who are outsiders and whose relationships exist outside the law. As such they are expendable. Additional powers of the Immigration Act reinforce this, such as disqualification of the right to rent for individuals without leave to remain and the investigation of “Sham marriages”. All marriages involving a non-EEA (European Economic Area) national with no status or limited leave to remain where the individual could gain an” immigration advantage” will be reported to the Home Office for investigation. During the investigation period the couple will have to comply with immigration enforcement measures such as attending interviews, providing documents and photographs and cooperating with visits to their home. If they do not comply the marriage cannot take place.
I work for a Refugee Charity. Recently we obtained funding to pilot a project to help FNPs held under immigration powers obtain their release. I am one of two part time caseworkers who job share for the project. The job requires: visiting prisoners, finding sureties for immigration bail applications or supporting existing sureties from family and friendship networks, seeking legal representation or contacting their legal representative, helping them deal with medical and social issues. This is an extension of the work we do to support detainees held in a local Immigration Removal Centre. It is not easy to find bail sureties for convicted prisoners or legal representation when legal aid for so many aspects of a case has been cut. It requires thinking creatively and networking to build contacts with legal practitioners and community activists who will work with you and your client to challenge the climate of hostility. Within our network, lawyers, lecturers and students, detainee visitors, members of faith groups, retired bankers and former foreign prisoners have all contributed in different ways. Former FNPs have an important role to play as witnesses with direct experience of the injustice of imprisonment under immigration powers.
IRCS are harsh places but in prison the conditions are more restricted. FNPs are not permitted a mobile ‘phone and have no access to a legal aid duty advice service. Prison visits have to be pre-booked and cannot be organised at short notice. There can be a long wait for legal visits.
All this results in foreign prisoners feeling lonely, confused and isolated from social and legal support.
People held in an IRC can ask for their detention to be reviewed under detention Rule 35 if they have been tortured or are suffering from a serious illness. Rule 35 does not operate in prison. This prevents foreign prisoners who are ill or traumatised, from being released and accessing treatment.
Indefinite detention can be a catalyst for secondary trauma and detainees may resort to self- harm or become psychotic as a way of dealing with their imprisonment. In these are cases we intervene and bring support. Cuts inflicted by the MOJ on the Prison Service mean that staff are stretched to their limit and the prison system by its nature is a closed environment. I have therefore been surprised and gratified to find allies within the workforce. In one instance, a client who had a well-documented history of mental illness was arrested and remanded in custody. He stopped speaking and embarked on a daily, “dirty protest” smearing himself and his cell with faeces. This man had been diagnosed as suffering from Post-Traumatic Stress Disorder, a reaction to losing his family in a civil war. As I knew about his condition I spoke to Safe Custody who helped me liaise with the mental health team. They also obtained permission from the governor to open a legal letter which was confidential under prison Rule 39, so that I could contact his Criminal solicitor and tell her where he was detained. She arranged for him to be assessed by an independent doctor and he is now being treated in a psychiatric hospital.
In another case, one of my clients was convicted of theft which was linked to drug addiction that arose from past trauma. He was kept in prison after completing his sentence so he could be deported to Algeria. He has been in the UK for some time and had previously spent long periods in detention. The Algerian Consulate has refused to provide a travel document for his return. The Home Office said he wasn’t cooperating. He said he had given them as much information as he could. In frustration he went on hunger strike and on day 37 he told me he felt hopeless and was determined to die. He was moved to a hospital bed within the prison. I called several times to ask about his health and the nurses took the ’phone to his bedside so he could talk to me. I told him to stop the hunger strike because I was going to find a lawyer to challenge his detention. His previous legal representative took the case despite being very busy and I almost cried with relief when this was agreed. Later my client was released via a judicial review to the High Court. In prison he had completed a drug rehabilitation course and was proud of this achievement. Sadly the conditions of his release, a tag and curfew and the requirement to produce new witnesses to confirm his Algerian identity were impossible to fulfil. He resorted to drug and alcohol misuse as a way of coping and this led him back to theft and consequently prison.
He has since summed up his life in England as,” All prison and detention.” However he is determined to fight for immigration bail once his prison sentence is up. I believe the outcome of the hunger strike strengthened his resilience, knowing that workers from different professions cared and came together to ensure his survival.
In early 2014 we learned that a thousand prison spaces had been created to hold FNPS under immigration regulations. We evidenced from our casework that some detainees were being released only to end up in the prison and detention again. Prisoners needed support to break the cycle. On this basis we achieved our funding for the pilot.
Poverty, destitution and the discriminatory nature of immigration controls are factors which cause FNPs to re-offend. The Home Secretary has the power to revoke Leave to Remain of anyone sentenced and convicted of a crime. People without secure status are forbidden to work and have no recourse to benefits and other public resources; failing to report to immigration, using false documents to work or leave the country are immigration offences they can be prosecuted for and receive a custodial sentence. These offences arise from the impossibility of their daily lives.
Anonymised and segregated by their incarceration, FNPs are blank canvases upon which the Home Office and tabloid media can project collective fantasies of evil, inciting a xenophobia that is deeply unhealthy for our society. These divisions are false and we cannot afford to sustain them. The sweeping powers of the Immigration Act 2014 came into force in the context of austerity measures imposed by the Coalition government to which no parliamentary opposition exists. Unprecedented cuts to legal aid and the Tory plan to abolish the Human Rights Act reduce our universal protection and ability to resist. The climate of hostility is part of the climate of austerity in which we all struggle. Unity and solidarity are required to defeat the savage dismantling of jobs, services and welfare provision. We must visibly reject and reverse the culture of blaming immigrants. Standing by foreign national prisoners is an important aspect of this. My experience of connecting with other workers who showed care and compassion for foreign prisoners indicates that solidarity exists.
Recently I organised a public meeting with a colleague to raise awareness about the Immigration Act 2014 and to encourage people to befriend and stand bail for foreign prisoners. My colleague is a former foreign prisoner. The local paper insisted that my press release to advertise the event was accompanied by our photographs. I was pictured on a picket line with lawyers striking against legal aid cuts and my colleague outside a Detention Centre. I was nervous that this might provoke a racist attack but the meeting passed without incident. Instead something positive happened, a man facing deportation to the Caribbean came from a distance with his family to get legal advice. They were welcomed and advised by a lawyer who was our key speaker. Afterwards his sister emailed me an emotional and articulate statement, “Thank you and your team for having and hosting the meeting last night, what we heard was very informative and gave our family hope. The authorities and the government do not know the devastating impact that their policies and actions are having on families. Every action has a reaction and each group feels like they are being targeted. Where does this end? The anger and hate being sown by these policies will have a long lasting effect on society. Fathers, in particular, are being taken away from their children and the children, who are British Citizens, are being left to grow without a father and there is well-documented evidence of the consequences of that and they are not good. The impact also of living in this country for 30 years and now being told that you have to leave. It is indeed a death sentence; they might as well hang you. Where is your future? You are going to a country where you do not even know something as basic as the phone system there”
This says it all and validates the work we are doing. The lawyer who led the discussion said he is sure there will be legal challenges to the Immigration Act 2014. A successful legal action ruled the Residence Test, a central plank of Chris Grayling’s legal aid cuts, as “discriminatory and unlawful”.
This happened within the arena of joint strike action by lawyers and probation workers against cuts and privatisation. For my part, my job is the first that I have not felt alienated from. It has become a natural part of my existence and I came to it after years of marginalisation through illness and disability. So I feel I have some understanding of the sense of isolation and exclusion that FNPs experience. Although I have referred to foreign prisoners as clients, I see them also as comrades in a wider struggle for justice and human rights. I salute their courage and determination.