After guidance from Public Health England, Brook House IRC has been deemed as an outbreak centre of COVID-19

We fear this could be calamity starting to unfold – one which was entirely avoidable ; Medical Justice warned in March that IRCs are high risk for clusters of COVID-19, and that staff provide a conduit for infection to and from the community.

Serco, who runs Brook House, distributed a letter to detainees informing them that the IRC has been deemed an outbreak centre and to stay in their rooms due to the risk.  Some of our clients did not understand the letter and it hadn’t been explained to them.

The letter says “new arrivals will be housed onto C & E wings that are at present not in isolation” – any staff moving between the various wings could pose an infection risk and any new admissions into any IRC would be utterly reckless.  Clearly, the Home Office’s measures up to now regarding COVID-19 have not worked.

Our clinicians are worried about our clients in immigration detention who have COVID-19 co-morbidities, putting them at risk of severe illness if infected.

It is extremely concerning that at Brook House IRC ‘Rule 35’ reports to flag up particularly vulnerable detainees, such as those at risk of serious illness, to the Home Office have been suspended.

Having persisted in detaining torture and trafficking survivors at Brook House Immigration Removal Centre with all the known risks means the Home Office have knowingly endangered vulnerable people who came to this country to seek safety.

The rush to detain and remove 1,000 migrants who arrived on small boats across the Channel by 31st December may have exacerbated an already dire situation.  The vast majority of these migrants are removed by chartered flights from Brook House IRC. Some of our clients there have been told their ‘removal directions’ have been cancelled due to the COVID-19 outbreak.  As most wings at Brook House IRC are in isolation, and with just a few weeks to go, it is possible that the Home Secretary’s plan to remove 1,000 migrants in this way by 31st December lies in tatters.  The financial costs may be considerable but ultimately detainees may pay the heaviest price with their health.

Since it was founded in 2005, Medical Justice has never before seen such high numbers of extremely vulnerable detainees being rushed so quickly through the process.  The current need and ongoing risks are unprecedented.

The Home Office now urgently needs to do the right thing and release detainees as soon as is safe in accommodation in the community can be arranged – this does not include in army barracks.

Further Reading

The Independent : Home Office forced to cancel deportations due to coronavirus outbreak in removal centre

In a unanimous decision, the Court of Appeal today quashed the Judicial Review and Injunctions (JRI) policy which enabled the refusal a migrant’s case and their forcible removal from the UK, within hours and in many cases without access to justice.

Over 40,000 removals were affected by the policy resulting in vulnerable people being put at risk. Some were recognised as having been removed unlawfully, were brought back to the UK and granted leave to remain.

The judgment from the Lord Chief Justice Lord Burnett, Lord Justice Hickinbottom and Lord Justice Coulson emphasises the importance of the right of access to justice under our common law :

“The right to access the court is an absolute and inviolable right… the right to access to the court is not a relative right to be balanced against other rights and interests“

The policy includes “removal windows” whereby someone is given as little as 72 hours notice that they might be removed from the UK at some point during the subsequent 3 months, without any warning.

The Court found :

“… the Policy allows for no adequate opportunity – or, indeed, any opportunity at all – for the individual to take advice and lodge a judicial review challenging that decision before he or she is at risk of removal which arises immediately upon the adverse decision being taken and notified”

“whether an irregular migrant is removed before he or she has had an opportunity to obtain legal advice and apply to the court is a matter of pure happenchance. It is, in the legal sense, arbitrary and thus in any event unlawful.”

A Medical Justice spokesperson said :

“One of our society’s most precious treasures is access to justice. Chillingly, away from the public gaze, this policy denied that fundamental right on a massive scale causing serious harm to extremely vulnerable people and risking life. It was effectively a shortcut to removal. Quashing the policy brings us back towards equal access to justice for all.

“Many of our sick clients were subject to “removal windows” – we didn’t know if they would still be in the UK from one day to the next. Clients we have managed to remain in contact with have described terrible consequences. Others have not been heard of again.

“Cases where people are removed from the UK without access to legal representation are particularly concerning as they are unlikely to be known about by any independent organisation, making it difficult to know the true extent of the policy’s impact. Some cases only came to light when removals had been aborted by chance. “

Our instructed solicitor, Rakesh Singh, of the Public Law Project said:

“This is a case about access to justice, one of the fundamental values of the British constitution.

“The ‘removal windows’ policy shut people out of the legal process. It meant that when mistakes were made, people could not access the court to put things right, and led the Home Office to remove people with a right to be here – including a number who were caught up in the Windrush situation. Removing people in this way caused terrible injustices and placed many individuals and families in danger and into hardship, unnecessarily and unjustly.”

Explainer

A removal window notice can be given where arrangements for the person’s removal have not yet been made. The Home Office’s rationale is to prompt migrants to raise any human rights claims or other reasons for remaining in the UK. However migrants are expected to do this within the very short notice periods which is almost impossible if they do not have a lawyer. Even if they do make those further submissions within the short notice period, negative decisions which could be challenged in the courts can then be given to migrants shortly before removal and even on the same day, making it impossible for the individual to challenge an unlawful removal. The Court accepted that the extensive evidence which had been assembled by Medical Justice and PLP, “clearly shows that almost all decisions material to removal which are made in respect of applications and representations made following service of the notice of the removal window are made within the window period itself”.

Migrants who have had applications or appeals previously refused, may have valid reasons to make fresh submissions. For example, key issues were not previously identified, adequately evidenced and properly considered, including indicators that an individual was a trafficking victim. Or the person may have been in the UK for decades, and have UK-born children or grandchildren, or their circumstances have changed. Whether an immigration claim or a fresh submission has been outstanding for many years or made at or after the point of arrest, the Home Office can refuse them at the same time the migrant is arrested, detained and taken to an airplane. The court found that there were no sufficient safeguards in the policy that protect against unlawful removal.

Case Studies

Mr A is “Windrush” case. He came to the UK from the West Indies in the eighties, married here and was granted Indefinite Leave to Remain. He has lived here ever since and has a British child. He was arrested out of the blue from his home, and served with a “removal window”. He was unable to access legal advice in time inside the immigration removal centre he was held in. Luckily a friend was able to engage a solicitor who got an injunction the evening before he was due to be removed from the UK. The evidence that the solicitor obtained was voluminous – over 500 pages covering almost 30 years of continuous residence. This could definitely not have been compiled within 72 hours. It was eventually confirmed that he had Indefinite Leave to Remain all along and that he had been unlawfully detained.

Mr B. The Home Office refused to give any consideration to new information provided by Mr B that several of his relatives had been killed in his home country, which was highly relevant to his asylum claim because it indicated that he was in danger. The Home Office said that since he did not follow the correct procedure, they would not consider this claim. Mr B was told this at the same time he was detained for removal. He was removed that same day without having had access to legal advice. The Home Office later brought him back to the UK, accepting that his removal was unlawful, and granted him refugee status.

Mr C was a suicidal man suffering a serious psychotic illness who had no legal representative at the time. He is the father of a British child. He had been told to come to an interview. He was not interviewed but instead detained and removed on the same day with very limited anti-psychotic medication. Medical Justice was informed of his case and found him a solicitor. A judge ordered the Home Office to bring him back to the UK. The Home Office admitted that it had misused its powers, had prevented him from having access to legal advice and the court and had unlawfully detained and removed him. The Home Office later granted Mr C 30 months leave to remain on the grounds of his family life with his British child.

Mr D was issued a “removal window”. His marriage to a Gambian woman who had Indefinite Leave to Remain, and who was heavily pregnant with his child, had not previously been raised with or considered by the Home Office. The day the notice period ended he reported to the Home Office, was detained and told he would be removed the following day. Immigration Officers took him to his flat to collect belongings and saw that his wife was heavily pregnant. The next day he protested. The removal did not go ahead and the Home Office recorded that Mr D had ‘disrupted’ it. His wife gave birth to their son, a British citizen, during the removal window. Mr D informed the Home Office of the birth of his son the same day, and subsequently provided photographs and a copy of his son’s birth certificate naming him as the father. The Home Office refused to treat this as a fresh human rights claim based on his family life. Up until his removal some months later, Mr D and his wife made every effort to find a legal aid solicitor to represent them, but were unable to find one. He was removed from the UK, separating him from his wife and child. Following a legal challenge a Judge said that the refusal of the fresh human rights claim was unlawful and ordered the Home Office to bring Mr D back to the UK. Mr D was eventually able to return to the UK and the Home Office granted him 30 months leave to remain on the grounds of his Article 8 family life.

A copy of the judgment is available below, or on the Judiciary website (www.judiciary.uk) or BAILII

Medical Justice v SSHD: Approved Judgment

Contact: Medical Justice – Emma Ginn, Director, on 07786 517379 / emma.ginn@medicaljusticeorg.uk

Notes

• Medical Justice applied for interim relief and the Administrative Court placed an injunction on use of the removal window policy in March 2019. The case was refused in September 2019. The injunction remained in force pending the Court of Appeal hearing.
• The Court of Appeal heard Medical Justice’s appeal of that refusal on 7th July 2020. The hearing tied together challenges brought by Medical Justice and FB (Afghanistan), an individual who faced removal under the policy.
• Medical Justice was represented by Charlotte Kilroy QC and Anthony Vaughan of Doughty Street Chambers, and Alison Pickup, PLP’s Legal Director, and the instructing solicitor was Rakesh Singh of PLP who has led our work on notice of removal since 2014.
• FB’s barristers were Sonali Naik QC and Ali Bandegani of Garden Court Chambers and Alex Goodman of Landmark Chambers, instructed by Duncan Lewis solicitors.
• The Equality and Human Rights Commission filed a written intervention and was represented by Stephanie Harrison QC of Garden Court Chambers and Shu Shin Luh of Doughty Street Chambers, instructed by Sara Brunet at the EHRC.
• Medical Justice is a charity that sends volunteer doctors into immigration removal centres (IRCs) to assist detainees, documenting their scars of torture, medical conditions, and injuries sustained during removal attempts, and to challenge instances of inadequate healthcare. With our medical evidence, we identify systemic healthcare failures to the Home Office and NHS England.
• In 2010, the Public Law Project (PLP) represented Medical Justice in our judicial review of the Home Office’s policy of providing less than 72 hours notice, or none at all, to specified categories of individuals. The High Court judgment, later upheld by the Court of Appeal, quashed that policy as an unconstitutional abrogation of the right of access to the court. Since then, Medical Justice and PLP have monitored the Home Office’s removal policies. In July 2018, PLP intervened in a judicial review (R (FB and NR) v SSHD) brought in the Upper Tribunal of the Home Office’s policy. Following that judgment, the policy was amended.

Medical Justice statement on today’s (29th April 2020) publication of the Independent Chief Inspector’s audit report on the Home Office’s Adults at Risk policy and the government’s response.

“This shameful policy is riddled with systemic issues, fails to protect vulnerable people and serves to prop up a detention regime that inflicts severe harm on torture victims and other vulnerable detainees.

Medical Justice has warned the Home Office of the failures for years and has successfully challenged the policy’s definition of torture in the High Court, twice.

The Coronavirus pandemic shows these failures now reach beyond detention into the community. The same systemic issues Medical Justice have been warning of for years are now putting detainees and the wider public at risk. Right now the Home Office continue to rely on this flawed policy in assessing detainees for release which means our clients who suffer from COVID-19 co-morbidities, such as asthma, continue to be detained despite the increased risk of severe illness. There have already been three confirmed cases in immigration removal centres. If COVID-19 continues spreading, immigration removal centres will act as ‘epidemiological pumps”, with staff serving as conduits between the centre and the wider community. “

The Home Office stubbornly refuses to learn the lessons of the Windrush scandal, placing enforcement over protection”.

Case-study : Z- Torture and Trafficking victim self-harming in detention

Z was detained having been encountered by immigration after he overstayed a visa and was detained. Shortly after entering detention, he claimed asylum. In his screening interview he disclosed a history of having been trafficked and forced to work. He was referred into the National Referral Mechanism as a Potential Victim of Trafficking. This disclosure did not trigger any further investigations into his vulnerability. He received negative decisions in his asylum and trafficking claim. He was given a ‘removal window’. The same day he cut himself and was placed on constant watch (which is intended to manage a suicidal crisis). There is no evidence that a Rule 35(2) report or IS91 RA Part C were completed at that point. He was referred for a mental health assessment. He first requested a rule 35(3) appointment around 22/01/19 and was placed on a waiting list. After Medical Justice contacting the IRC healthcare unit an appointment was allocated for him a couple of weeks later. The report identified evidence of torture and found he was likely to be harmed by continued detention. He was released a few days later.

(This case study also illustrates the failure to investigate further any potential vulnerability disclosed in the screening interview or NRM interview for example by referring for a Rule 35 report, the underuse of Rule 35(2), and our concerns regarding vulnerable detainees being given Removal Window notices.)

Notes

• Medical Justice has successfully litigated twice on the definition of torture used in AAR in July 2019 and in Oct 2017 (media coverage including Channel 4 News and BBC News is here).
• On 20th March the Home Office said that all immigration detainees will have their cases reviewed and underlying medical conditions increasing a person’s risk of severe illness following infection with COVID-19 will lead to them being treated as an Adult at Risk.
• Medical Justice has clients continue to be detained despite having those underlying medical conditions, including asthma, diabetes, hypertension, and a range of mental health issues from anxiety, depression through to psychosis and schizophrenia.
• The Medical Justice and Immigration Law Practitioner’s Association joint submission to the ICIBI on 25/02/19 is here.  And the accompanying set of case-studies of how AAR failed vulnerable clients is here.  The Medical Justice submission to the Home Affairs Committee 21^st April 2020 is here.
• Our “Failure to Protect” report catalogues how vulnerable detainees are failed by the AAR policy, including a section with case-studies.
• We note that the ICIBI’s audit report on the Adults at Risk policy has sat on the Home Secretary’s desk since last July and is now published just hours after she has eventually given evidence to the Home Affairs Select Committee, meaning the committee members have no chance of questioning her on the report.

Contact : emma.ginn@medicaljustice.org.uk / 07786 517379

Tragedy could be avoided if all release detainees

A second Covid-19 case in immigration detention has been confirmed at Brook House immigration removal centre (IRC). A notice was given to detainees on Tuesday by G4S, the private contractor who runs Brook House IRC.

Yesterday Alison Thewliss MP, Chair of the All Party Parliamentary Group (APPG) on Immigration Detention has called on the Home Secretary again to release all immigration detainees immediately – see the letter here.

“Such a situation was entirely avoidable. I am increasingly concerned alarmed about the health of immigration detainees, particularly those with underlying conditions that mean they are at high risk if infected with COVID-19. Now more than ever, protection must be prioritised over immigration enforcement targets. IRCs are high risk for clusters of COVID-19 with staff providing a conduit for infection to and from the community. The continued spread of the virus clearly highlights the very real risk of uncontrolled outbreaks at IRCs ….

The government’s decision last week to release 4,000 prisoners was welcome, if not overdue. The release of prisoners, however, begs the question as to why immigration detainees, none of whom are serving a criminal sentence, are still being held.

Three prisoners have already died from COVID-19; I call on you to do all you can to avoid any such similar deaths in detention and urge you – once more – to arrange for the release of all immigration detainee with immediate effect.”

– Alison Thewliss, MP

As of Tuesday, 153 staff and prisoners in prison had tested positive for Coivd-19 and 12 have died, according to the Ministry of Justice (MoJ). Last week the MoJ announced that 4,000 prisoners are being released early, reportedly as a part of the national plan to protect the NHS and save lives.

“The prisoner release makes sense. What makes no sense is why immigration detainees whom are not serving a criminal sentence, continue to be detained. The fact that so many detainees cannot be removed from the UK during the global lockdown makes their indefinite detention in such perilous conditions seem incomprehensible, indefensible and just plain cruel.

Immigration detention is optional. Detainees are held purely for the administrative convenience of the Home Office. Their continued detention could mean that the Home Office is risking public health for its own administrative convenience – this would be unconscionable.

The government must value human life above its deportation statistics and release all immigration detainees immediately before avoidable tragedy occurs.”

– Emma Ginn, Director, Medical Justice.

“From talking to clients on a daily basis I know that the indefinite nature of detention and complete lack of control is hugely distressing. This feeling is currently exacerbated, detainees do not have control over who they come into contact with, find self isolating extremely difficult and report being fearful, the worry is clear in their voices.

 One detainee who had just found out about the confirmed Covid-19 case called me and said ‘I need to get out of here’. Another detainee said that he felt that he was going to die in detention, because his serious health condition made him so scared of Coronavirus.”

– Emily Lawton, Caseworker, Medical Justice

Anyone released from detention who does not have adequate accommodation or faces destitution must also be provided with suitable accommodation and financial support, regardless of immigration status. These measures are crucial to enable self-isolating and to protect the health of both of the individual and the general public.

Contact: Emma Ginn – Emma.ginn@medicaljustice.org.uk / 07786 517379

Medical Justice, BID and ILPA have written today to the Parliamentary Under Secretary of State at the Home Office to express concern about the Home Office’s response to COVID-19 in relation to immigration detainees, including:

• Our understanding is that all visits to IRCs and prisons have been stopped.
• Considerable difficulties contacting detainees due to poor mobile reception and reports of some detainees being locked into rooms.
• Restriction of access to emails, faxes and the internet to contact their legal representatives, file legal applications or make submissions in their case.
• Changes in the regime may also breach the following aspects of the Detention Centre Rules:
  – Access to a registered medical practitioner (Rule 33(7, 11))
  – Access to family life, visits and other persons (Rules 26 & 28(1))
  – Access to letters and faxes (Rule 27(1))
  – Access to legal advice (Rule 30)

We are concerned that such breaches may render detention unlawful and may not be effective in preventing the spread of COVID-19 as evidenced by outbreaks on cruise ships.

Download the letter here and see the questions we have demanded answers to within 3 working days.

Home Affairs Committee Inquiry into Home Office preparedness for COVID-19 (Coronavirus)

An immigration detainee has already tested positive for COVID-19 at Yarl’s Wood Immigration Removal Centre (IRC). IRCs are high risk for clusters of COVID-19, and staff provide a conduit for infection to and from the community.

The response to COVID-19 within IRCs has already been problematic. It is widely acknowledged that even at the best of times, healthcare in IRCs is entirely inadequate and that detention can exacerbate existing medical conditions.

Many detainees are especially vulnerable due to their co-existing physical illnesses.

Click here to see the written evidence submitted by Medical Justice

A detainee died in Dungavel immigration removal centre yesterday – the second to die in immigration detention in two weeks. Continue reading “Dungavel death” →