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NGOs raise immigration-related concerns as UN Human Rights Committee carries out periodic ICCPR review of the UK

Summary:

Submissions include Bail for Immigration Detainees, Medical Justice, Anti-Slavery International, and Focus on Labour Exploitation

Date of Publication:
04 February 2020

NGOs raise immigration-related concerns as UN Human Rights Committee carries out periodic ICCPR review of the UK

04 February 2020
EIN

A number of NGOs have raised concerns related to immigration in their submissions to the United Nations Human Rights Committee as it carries out a periodic review of the UK's implementation of the International Covenant on Civil and Political Rights (ICCPR). The UN Committee will meet next month for its 128th session.

Bail for Immigration Detainees (BID) and Medical Justice's submission considers rights issues around the UK's continuing use of immigration detention with no fixed time limit. The NGOs say they believe there are a number of reforms that should be implemented urgently, including judicial oversight of the decision to detain and the restoration of legal aid.

Concerns are raised in the submission over the lack of safeguards and the insufficiently robust legal and policy framework governing immigration detention.

BID and Medical Justice say the decision to detain is made by an individual immigration officer and is not automatically subject to independent review at any stage, In addition, while the Home Office is obliged to provide detainees with monthly reviews on their detention, the submission says in practice this is "little more than a rubber-stamping exercise".

The submission continues: "As a result detention is used far too casually: we rarely see evidence that the Home Office has considered alternatives to detention in individual cases and the necessity of detention is rarely demonstrated.

"This is further evidenced by the fact that the Home Office is frequently found to have broken the law in its use of immigration detention. The Home Office was forced to pay out £21 million to 850 people detained unlawfully from 2012-2017 and last year this figure was £8.2 million, paid to 312 people who had been unlawfully detained. This figure is increasing but we rarely see evidence that the Home Office learns lessons from the countless occasions on which it has broken the law. However, these cases may be the tip of the iceberg because there will be many individuals who are not able to access the high quality legal advice required to bring an unlawful detention judicial review."

BID and Medical Justice express major concerns over the lack of legal aid for immigration detainees:

"Many detainees do not have legal representatives. In November 2010, BID began to conduct surveys every six months regarding immigration detainees' access to legal representation from within detention. In November 2012, prior to the implementation of the legal aid cuts, 79% of surveyed detainees reported that they had a legal representative at the time of survey, 75% of which were funded by legal aid. Since the cuts came in 2013 there has only been one year where the number of people with a legal representative was above 60% and in a number of years this figure has been below 50%. The importance of legal representation for our clients cannot be understated."

The submission notes that "[i]t is almost impossible to succeed in a deportation appeal without legal aid representation" and "[i]t is also fanciful to suppose that an individual could bring a judicial review to challenge the lawfulness of their detention without access to legal representation."

The effect of detention on children is also covered, with the submission noting:

"We found that the Home Office had repeatedly failed to consider the best interests of the children in cases where it decided to separate the family. In one case, our client's family life was overlooked in his decision to detain and every subsequent review of detention, despite the fact that he had challenged his deportation on the basis of his family life in the UK, and the Home Office had themselves accepted during deportation proceedings that the proof of his family life was 'incontrovertible'. Similarly in the other case the Home Office argued in both the decision to detain him and every subsequent detention review that he did not have a genuine and subsisting relationship with his children, despite previously having accepted this relationship in deportation proceedings."

A submission by Anti-Slavery International and ten other UK-based NGOs addresses issues around modern slavery and trafficking. It says progress made by the UK in fighting modern slavery is being threatened by an increasingly hostile immigration environment.

The submission states: "Despite notable efforts, obstacles persist in ensuring the effective identification and protection of victims, and their access to justice and remedy. The UK's official identification mechanism for victims of modern slavery, the National Referral Mechanism (NRM), remains flawed despite promised and recent reforms and pilots. … Many victims are not identified. Of those who are, many fall through the gaps and struggle to access accommodation, safeguarding, medical services, counselling, and legal advice. Access to justice and remedy is particularly problematic. Many are unable to get legal advice when they need it."

It continues: "The Government continues to bring in legislation that is likely to contradict or undermine the Modern Slavery Act. For example, provisions in the Immigration Act 2016 are likely to directly undermine it by creating the offence of illegal working, despite ample evidence presented that many victims become undocumented or have their insecure status used by their traffickers to make it easier for them to be controlled and to detract the attention of law enforcement from the perpetrators. The UK's hostile immigration environment remains in conflict with its stated determination to tackle slavery.

"Despite existing guidance from the Crown Prosecution Service, people who have been trafficked and in modern slavery continue to be wrongly criminalised for drug, benefits or immigration offences that were the result of their exploitation. Although section 45 of the Modern Slavery Act introduces a defence for victims, including children, who are compelled to commit criminal offences, it can only be relied upon once the prosecution process has commenced. Therefore, it does not protect victims from being prosecuted in the first instance."

Anti-Slavery International and the other NGOs are also concerned that migrant domestic workers continue to suffer from widespread abuse, exploitation, trafficking and modern slavery:

"The Overseas Domestic Worker visa (ODW visa) increases vulnerability to these abuses by restricting migrant domestic workers to a non-renewable six-month visa, against the recommendations of an independent review commissioned by Government. This renders the right to change employer inaccessible. Changes announced by the Government in 2016 which had the potential to be positive have not been implemented in practice. Safeguards during the visa application process are rarely being applied."

In its submission, Focus on Labour Exploitation (FLEX) says the Government's 'hostile environment' policies are undermining efforts to tackle slavery, servitude and forced labour, and they prevent people exiting exploitation.

The submission states: "The impact of this policy approach on public agencies meant to protect and support workers – labour inspectorates and police – has been to curtail workers' ability to seek help when experiencing exploitation. Undocumented workers, or those with irregular or uncertain status, are prevented from coming forward to seek support because they fear immigration repercussions, such as detention and deportation."

It continues: "The current immigration regime is also directly handing exploitative employers a tool with which to coerce and control victims. Numerous reports by academics and respected institutions have evidenced this, including a 2012 research report examining the criminalisation of migrant women by Cambridge University academics. They interviewed migrant women in prison or immigration removal centres in the UK and found that, of the women they interviewed, 'being handed over to the police or immigration was a common threat used by those who had held them'."

FLEX recommends the repeal of the 'illegal working' offence and the introduction of secure reporting mechanisms to address these issues by protecting workers' reporting abuse or exploitation from immigration repercussions.