Panorama, Undercover: Britain’s Immigration Secrets is required viewing for anyone interested in immigration in the UK.

It is also deeply uncomfortable viewing. It documents an undercover investigation into Brook House, one of the UK’s 13 Immigration Removal Centres.

The episode shows detainees subjected to severe violence, taunting, and mistreatment. A widespread culture of disdain towards the detainees among staff permeates the detention centre.

The investigation sheds light on alarming issues surrounding immigration detention, which have been subject to criticism and legal challenge since the beginning of the proliferation of detention in the UK.

This tweet from the Panorama account gives a sense of the programme:

WATCH: undercover footage shot by @callumtulley at Brook House immigration detention centre. pic.twitter.com/I2p1I2KFTM

— BBC Panorama (@BBCPanorama) September 5, 2017

This post provides some legal and factual context to a number of the issues identified in the documentary.

First, some examples of where detainees have successfully brought cases against the Home Office for unlawful detention and mistreatment are considered.

Second, other examples of egregious circumstances in immigration are summarised.

Finally, the post considers the future of immigration detention in the UK. 

Compensation for unlawful detention claims

While no claims of this sort are mentioned in the documentary, it is possible that some of those featured will come to challenge their detention as unlawful. The detainee who claimed to be 14, and who was subsequently released into the care of social services, comes to mind.

Individuals who are detained unlawfully are entitled to compensation in the form of damages, which can be significant. There have been a number of successful claims of unlawful detention by those detained under the Immigration Acts in recent years, following an initial flood of judgments in 2012.

573 successful claims were brought between the financial years 2012 and 2015. £5 million was paid in damages in 2012/2013, £4.8 million in 2013/2014, and £4 million in 2014/2015. These figures do not seem to include the costs of lawyers representing the detainees.

Where a claimant is entitled to compensation, courts generally follow the Thompson principles. These were established in the context of wrongful arrest, which is understood as analogous to immigration detention for the purposes of determining compensation. As the process is inherently fact-sensitive and a global approach is taken, it is difficult to estimate with certainty any likely award. Generally, a sum of £3-4,000 is awarded for the first 24 hours of unlawful detention, and around £100 per subsequent day is a common starting point.

A recent example was the claim brought in May 2017 by Godwin Chaparadza. Mr Chaparadza, a Zimbabwean national, was awarded damages of £10,500 following his unlawful detention for a period of 70 days. The Home Office had failed to serve him with a decision on his application to vary his leave to remain before detaining him, rendering his detention unlawful.

Use of force by staff

Viewers of the Panorama documentary will recall a ‘sense of roughness’ among some staff described by Nathan Ward, a priest and former G4S Senior Manager. Nathan Ward left employment at G4S after struggling to cope in the post.

There are a number of depictions of violence against detainees in the documentary. In one scene, a staff member describes banging a detainee’s head, and forcing the detainee’s fingers back against his hand.

The courts have also seen claims brought by individuals alleging personal injury as a result of treatment at the hands of security guards while in immigration detention.

In June 2017, Ugandan national Felix Wamala was awarded £48,000 in damages following injuries sustained from private security guards contracted by the Home Office. Mr Wamala, who was a survivor of torture, was assaulted by employees of Reliance. The security guards used an unauthorised “pain compliance” technique. This led to Mr Wamala suffering “intense pain” and difficulties breathing. The judge described the CCTV images of the sustained assault as “shocking”. The judge found that Mr Wamala believed that the security guards were trying to kill him. Once again, a scene in the documentary springs to mind: the use of intense pressure applied to a detainee’s neck.

It is notable that in Mr Wamala’s case damages for physical and mental injuries totalled £30,000. The remaining damages constituted £10,000 for exemplary damages, and £8,000 for aggravated damages. The judge in Mr Wamala’s case explained:

Exemplary damages can be awarded in respect of outrageous exercises of unlawful executive power.

The subjects of treatment as described in the documentary may be forgiven for arguing that that treatment was indeed an outrageous exercise of unlawful executive power.

Detaining the mentally ill

The episode appears to depict a number of detainees in detention with serious mental illness. These include those with suicidal ideations and documented attempts at self-harm.

It has been stated Home Office policy since 2010 that people with serious mental and physical health conditions should not normally be detained, and should only be detained in very exceptional circumstances.

Yet there have been a number of cases over the last few years in which the high court has found that detained individuals’ rights to protection from inhuman and degrading treatment under article 3 of the European Convention on Human Rights have been violated.

In 2014, a woman who had been unlawfully detained for 11 months was entitled to damages both at common law and under article 3 ECHR. In this case, the unlawful detention had led to the mental illness complained of. The woman’s mental state had deteriorated during the period of detention. She had no pre-existing medical condition.

Factors which have led to a finding that article 3 had been breached in such cases include an inappropriate use of force, a failure to ensure transfer to hospital, and a failure to ensure that senior managers respond appropriately to evidence of mental illness.

It is worth contextualising the mental health problems depicted at Brook House and the cases that have already reached the courts. Trauma and distress is widespread across the detention estate. A report commissioned by NHS England reported in March 2016 that all immigration detainees experience distress which is disabling, and in some cases life-threatening. Depression, anxiety, and mood-related problems were the most commonly reported problems.

Shockingly, the majority of the detainees interviewed had experienced some form of trauma in their life prior to detention. The report gives the following examples:

fleeing a country where they were being persecuted; witnessing loved ones being killed; experiencing domestic violence, sex trafficking or female genital mutilation; or fleeing a death sentence.

Mental health problems suffered by detainees are not the product of bad apples within the detention estate. They are woven into the fabric of immigration detention.

The Shaw review

In January 2016 the Shaw review was published. The Shaw review followed a number of successful claims against the government concerning treatment in the detention estate. The review considered the welfare in detention of vulnerable persons. It called on ministers to reduce significantly and immediately the number of people in detention.

James Brokenshire, then-Minister for Security and Immigration, promised a number of reforms to “lead to a reduction in the number of those detained, and the duration of detention before removal, in turn improving the welfare of those detained.”

In August 2017, the Home Office published quarterly statistics on the number of detainees. There was no such reduction in number of detainees or duration of stay. 27,819 people entered a detention centre in the year ending June 2017. This constituted a reduction of 12% from the previous year. This was matched by a 13% decrease in those people leaving detention.

The scope of the Shaw review was narrow. It did not consider the fundamental rationale underlying immigration detention, or whether a time limit was appropriate. However, it is clear that a number of its recommendations have not been put into practice by the Home Office.

The review also recommended that those with serious mental illnesses should not be subject to immigration detention on the basis that their condition can be adequately managed in detention. This recommendation has plainly not been taken on board.

A second Shaw review has recently begun. It will consider the implementation of its recommendations in immigration detention.

Detention conditions: the wider picture

Many centres across the detention estate have come been criticised for their treatment of detainees for a number of years.

The Independent Monitoring Board, which has responsibility for monitoring removal centres, published an annual review on treatment of returnees during charter flights. It expressed concerns that force and restraint had been used without due checks and for too long. In one example, a returnee who stated he did not wish tor return to his home country was put summarily into a waist restraint belt. Returnees wishing to use the toilet did so with the door open, and accompanied by an escort.

There are a number of government-commissioned reports which paint a worrying picture of detention centres in the UK. They are too many to list, but the description in the report by the HM Chief Inspector of Prisons, of unsanitary conditions, overcrowding, and staff’s poor understanding of detainees at Hardmondsworth is far from unusual.

Many non-governmental organisations have criticised the detention estate. A report and accompanying summary by Bail for Immigration Detainees highlighted the effect on children of those detained, and described

extreme distress [children] experienced during their parent’s detention. They reported losing weight, having nightmares, suffering from insomnia, crying frequently, and becoming deeply unhappy, socially isolated and withdrawn.

A notable contrast: The Independent Monitoring Board published an annual report into Brook House published in May 2016. The report noted that the detainees were treated “humanely and fairly”, that it found many examples of “good and dedicated work”, and evidence of a “can-do” management culture.

The Immigration Act 2016

The Immigration Act 2016 introduced a number of provisions which increased the Home Office’s powers of detention, many of which have not yet come into force.

Among these, one provision provides that each person awaiting an initial decision is automatically on “immigration bail”. For example, a person who seeks asylum at a port of entry to the UK will no longer be in the UK on “temporary admission”, but will be on bail. This is a difference that goes beyond mere terms, and objectionable connotations of criminality. An individual on immigration bail is liable to find themselves subject to a number of conditions as described above, unlike a person on temporary admission to the UK.

Of course, the often successive applications for bail which people already detained make can be highly distressing for the detainee. In Panorama, one man who applies for bail attempts to kill himself after his application is refused.

Immigration bail is coercive. The Home Secretary can unilaterally change its terms, and even those who cannot in practice be detained can be put on bail and made subject to conditions. These conditions are wide-ranging. They include electronic tagging, residence requirements, and indeed “such other conditions” as the decision-maker sees fit.

It is clear that tide is turning in favour or more, not less, coercive restrictions in immigration detention and bail in the UK.

Time for a time limit?

The revelations in the Panorama documentary will hopefully give rise to some soul-searching about the use of immigration detention in the UK.

A common criticism is that there is no time-limit on detention in the UK. The law provides for no automatic judicial review of the lawfulness of their detention. As at 30 June 2017, one man had been detained for 1,514 days.

Indefinite detention has been challenged unsuccessfully in the European Court of Human Rights. In Arben Draga v UK (application no. 33341/13), a Kosovan national who had been detailed for a number of years complained to the European Court of Human Rights that his two periods of detention violated his right to liberty and security under article 5 of the ECHR. Mr Draga argued that the law governing detention:

was not sufficiently precise, accessible and foreseeable in its consequences to meet the standard of lawfulness and, as such, it lacked the quality of law necessary to deprive him of his liberty.

The Court disagreed, and concluded that indefinite detention does violate the ECHR, as detainees are permitted to challenge the lawfulness of detention by way of judicial review.

Despite this setback, a number of organisations such as Detention Action continue to campaign for to introduce a time limit on immigration detention in the UK. Such campaigns will have renewed vigour in light of the depictions of people facing interminable detention in the Panorama documentary.

The future of detention

The Panorama twitter account has tweeted a response to the program by Brandon Lewis, Minister of State for Immigration, in which he promises to work “with [G4S] and the police to ensure all necessary action is taken.”

But the revelations in the BBC’s programme should give us pause for thought more generally.

The British government sees detention centres as a necessary component of immigration control. How else can individuals, at risk of absconding and refusing to voluntarily return to their home countries, be effectively removed from society in pursuit of their removal from the country?

Others may point to the human cost. They may highlight the psychological distress endemic in the immigration estate, or the cruelty of a system which detains without time-limit. They may emphasise the £86 spent by the Home Office every day for each detainee in the country. The child losing weight as a result of their parent’s detention may come to mind.

Alternatives to immigration detention are without the scope of this post, but those interested would do well to read this excellent report by Detention Action.

As the Rev. Nathan Ward explains in the documentary:

It’s too simple just to look at the individuals, even though their actions are deplorable. We need to look at the people who have put these people in place, and allowed them to do what they have done.

It is time to reconsider why long-term detention centres exist in the first place.