by Professor Devyani Prabhat, The Law School, University of Bristol
A woman held at the Manston holding facility in Kent is taking legal action against Home Secretary Suella Braverman. The asylum seeker claims that she was held unlawfully in “egregiously defective conditions” at the centre. Her case is supported by the organisation Detention Action, and another case is being put forward by the charity Bail for Immigration Detainees. Braverman has denied ignoring legal advice about conditions at the centre, which is meant for a maximum of 1,600 people but was holding more than 4,000 and has had outbreaks of norovirus, scabies and diphtheria. Braverman has been accused of not making alternative arrangements, such as hotel bookings, to accommodate the additional people. The Manston facility has become a flashpoint for criticism of the government’s current and past policies, and treatment of asylum seekers. But the situation at Manston is not just dismal, it is a violation of legal requirements in international law, domestic law and the government’s own policies.
Under the Immigration Act 2016, an asylum seeker is normally given immigration bail which permits them to live in the UK until their case is determined. During this period, people are supposed to be accommodated in suitable conditions, provided by local authorities, registered social landlords (housing associations) and private landlords. They might be briefly kept in a short-term holding facility (such as Manston) before they are transferred to asylum accommodation, but they are not supposed to be in immigration detention.
UK law does not dictate a maximum time limit that people can be detained.
However, detention is only supposed to be used when deportation is imminent, for example if someone’s asylum claim was rejected. The Hardial Singh principles, which stem from a 1983 detention case, limit the government’s detention powers. Still, people have been found to be detained for weeks, months or even years.
The people at Manston are not meant to be in detention at all. Government rules state that short-term facilities should only be used for transfers or short holding for a maximum of seven days. Manston is intended to accommodate people for a few days, but some people have been held there for weeks.
The legal action against the Home Office asks Braverman to declare that anyone held at the centre for longer than 24 hours has been unlawfully detained. This is presumably because after 24 hours, people are supposed to be given reasons in writing for their detention.
Additionally, the European Convention on Human Rights, part of UK law under the Human Rights Act 1998, says that detention must be proportionate to the objective – such as imminent deportation. In Manston, there are particular concerns about the holding of children, including unaccompanied children, for whom there is a special duty of care under the Borders, Citizenship and Immigration Act 2009.
Deprivation of liberty must be pre-authorised by a specific provision of law in order to not amount to false imprisonment. In a 2019 case, the Supreme Court found the Home Office liable to pay asylum seekers damages for false imprisonment when they were unlawfully detained for periods between five and 16 weeks. In another case where an asylum seeker was unlawfully deported, his detention prior to deportation was also held to be unlawful.
How did we get here?
The chief inspector of prisons reported on conditions at Manston and two other short-term holding facilities in August. While acknowledging progress had been made since earlier inspections, the report described “significant concerns” about the conditions and length of holding time at the centres.
People are being held for too long, in poor conditions and in large numbers because there is no space to accommodate asylum seekers in regular asylum accommodation. This is because of the massive asylum case backlog, which has been years in the making.
The chief inspector of borders and immigration also recently published a report on the government’s inability to handle the increase in small boat crossings, citing the Home Office’s “refusal to transition from an emergency response to what has rapidly become steady state, or business as usual.”
Small boat arrivals
Braverman has controversially referred to people arriving on boats as an “invasion”. The 1951 Refugee Convention recognises that people fleeing persecution may have to use irregular means in order to escape and claim asylum in another country. At present there is no legal way to travel to the UK for the specific purpose of seeking asylum. The people who risk death during sea crossings are more likely to be fleeing horrific life situations than simply seeking better opportunities. Whether or not they have an asylum claim needs to be assessed through the proper channels.
The Nationality and Borders Act 2022 complicates this by linking the support available for asylum seekers with their mode of entry. A refugee who is considered to have entered unlawfully may be restricted in their ability to get long term secure status and may have no recourse to public funds. Their family members may be prevented from joining them or remaining with them in the UK.
The government claims this is to prevent people from being trafficked via unsafe modes of transportation. Indeed, there are reports in the media about many channel crossers being trafficked from Albania rather than being asylum seekers. If that is true, and presumably not just from Albania, the focus should be on preventing trafficking and on consequences for traffickers – not improperly detaining those who have been trafficked.
The legal liabilities stemming from improper use of detention powers should not be a reason for offshoring asylum processes to countries like Rwanda. The focus should be on making the process fair and efficient here. Sending people far away only makes their plight less visible than when they are detained in facilities like Manston.