The routine detention of immigrant children by the last Government was a disgrace. Claimed changes to detention policy by the current incumbents and the recent case of R (on the application of Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011) reveal just how disgraceful practice used to be. This also turns out to be something for which officials as much as politicians are responsible.

Since the election, UKBA has been trialling ways of persuading families to leave the UK without being detained first. It turns out that if officials actually meet with a family to discuss their situation and the inevitability of their being removed, they will go ‘voluntarily’, in the sense of there not being any use of physical force. Detention is the use of physical force, when it comes down to it.

Equipped with this revelation, Clegg recently announced a virtual end to child detention. It should be noted that many believe Damian Green, the Tory Immigration Minister, has been instrumental in securing this ‘victory’ for the Lib Dems.

The events in Suppiah pre-date the election, having occurred in February 2010. It is an example of the old ways of doing things:

• UKBA claimed that the families had been offered voluntary return and had refused it. In fact there was no solid evidence that any such offer had ever been made, let alone that it had been properly explained, and no evidence that it had been unequivocally refused. The evidence of the offer having been made, such as it was, was a standard text read out to people before their appeal rights had been ended, i.e. before they had actually lost their case.
• Even the old detention policy stated that detention of children should only occur if there was no reasonable alternative. There was simply no attempt to explore other options in these cases. In reality, “detention was imposed by default”. Both families involved in the case were as a result detained in frightening dawn raids.
• Detention seems to have routinely been begun 5-6 weeks before an actual scheduled removal. This suggests that excessively long periods of detention were being used needlessly with very poor forward planning by UKBA, not at the last minute for the minimum time, as the detention policy required.
• The judge concluded with no hesitation, based on a wealth of evidence, that ‘detention is inherently and seriously harmful to the health and development of children’. But officials were routinely detaining children for long periods without having having even considered any alternative.
• UKBA suggested in this case, though a Mr David Wood, that the detention of children does not always harm them. No evidence was produced to support this view (entirely consistent with UKBA determination not to rely on evidence when making policy) and as the judge says, “quite how well qualified Mr. Wood is to offer an opinion on the specialist evidence adduced by the Claimants and Liberty is something of a mystery.”
• The judge concluded that UKBA policy was not followed in these cases: officials failed to follow their own policy and harmed these families as a result.

There is nothing unusual about these cases. They reflect normal practice by UKBA.

Policy is the unequivocal responsibility of the politicians. The judge concludes there was nothing inherently wrong with or unlawful about the policy itself, which was for minimum possible detention only exceptionally when all other alternatives had been explored. That is basically the same as the ‘new’ policy announced by Clegg. The problem lay with the way that officials ignored that policy and harmed these families as a result. As managers of their departments, Ministers no doubt have a constitutional responsibility for practice on the ground. Realistically, there is little they can do about rogue employees who do not do as they are told.

Sadly, there is no way to hold those officials to account for the harm they have done. The politicians can be removed through an election, and have been, but the officials remain the same. Will they undermine the new Government’s policy in the same way as they did the last?