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Our Hidden Borders: the UK Border Agency Powers of Detention

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Our Hidden Borders: the UK Border Agency Powers of Detention Northern Ireland Human Rights Commission Our Hidden Borders Temple Court 39 North Street Belfast BT1 1NA Tel: (028) 9024 3987 Fax: (028) 9024 7844 Textphone: (028) 9024 9066 SMS Text: 07786 202075 The UK Border Agency’s of Detention Powers Email: [email protected] Website: www.nihrc.org A summary of this document can be made available in languages other than English, in Braille, on audio tape or in large print by request to the Commission’s offi ces. It is also available on the Commission’s website at www.nihrc.org Our Hidden Borders The UK Border Agency’s Powers of Detention Protecting and promoting your rights Our Hidden Borders The UK Border Agency’s Powers of Detention Dr Nazia Latif and Agnieszka Martynowicz April 2009 ISBN 1 903681 79 0 © Northern Ireland Human Rights Commission Temple Court, 39 North Street, Belfast BT1 1NA Tel: (028) 9024 3987 Fax: (028) 9024 7844 Textphone: (028) 9024 9066 SMS Text: 07786 202075 Email: [email protected] Website: www.nihrc.org Our Hidden Borders – The UK Border Agency’s Powers of Detention Foreword Individuals who are not nationals of the UK are I would like to thank the authors of this report for particularly vulnerable to breaches of their human the way in which they applied their investigatory rights. Language barriers, lack of information on skills to this difficult subject and particularly Dr rights in accessible forms and the public discourse Nazia Latif who led the investigation from its on migration and asylum can all serve to genesis. I would also like to acknowledge all those exacerbate these vulnerabilities. When those who assisted the investigation and hope they find individuals are, as is current practice, detained by that, through their participation, the human rights state agencies in the prison estate, custody suites of all are better respected, protected and fulfilled. or removal centres the need for independent Professor Monica McWilliams inspection and investigation is crucial. Chief Commissioner The lack of publicly available information around decisions to detain highlighted a pressing need for an investigation that went beyond an examination of the places of detention to one that examined how those who are not nationals came to be detained in the first place. Our Hidden Borders examines the extent to which current law, policy and practice on the detention of perceived offenders of immigration law and asylum seekers is compliant with the UK’s commitments under international human rights law. The findings of the investigation highlight a range of human rights concerns and the recommendations in this report focus on these. They relate to the policies, law and practice governing the UK Border Agency and to the involvement of the Police Service of Northern Ireland. They have implications for devolved, non-devolved and excepted matters, and will require a range of responses across government departments. In taking forward this work, the Commission is keen to discuss its recommendations with the Home Office, the UK Border Agency and the Police Service of Northern Ireland to enable a positive response from those concerned. The Commission is also keen to ensure that a wide range of bodies become involved in helping to disseminate the findings and progress the recommendations of Our Hidden Borders. 3 Our Hidden Borders – The UK Border Agency’s Powers of Detention The authors Nazia Latif Agnieszka Martynowicz Nazia is currently Investigations and Policy Worker Agnieszka is Assistant Director with the Institute with the Northern Ireland Human Rights for Conflict Research in Belfast. Previously, she Commission where she leads the Commission’s worked in the Northern Ireland Human Rights work on asylum, immigration and criminal justice Commission as Research Worker, and at Queen’s issues. University Belfast as researcher on the Equality and Social Inclusion in Ireland Project. She has also She has a PhD from the University of Newcastle- worked in a number of voluntary organisations in upon-Tyne. Her thesis was on the subject of Poland, providing legal advice and training to Women, Islam and Human Rights. organisations such as the Prison Service and Social Services. She was a country rapporteur on women’s rights in the review of women’s status in OSCE Member-States in 2000. Agnieszka holds an MA in Law and an LLM in Human Rights, as well as the UNSSC/Fahamu Diploma in Conflict Prevention and an International Committee of the Red Cross Diploma in International Humanitarian Law. In her current post, she leads on the Institute’s work on migration and asylum. 4 Our Hidden Borders – The UK Border Agency’s Powers of Detention Contents Page 3 Foreword .......................................................................................... 4 The authors....................................................................................... 6 Acronyms.......................................................................................... 7 Executive summary ........................................................................... 9 1. Introduction ............................................................................... 16 2. International standards............................................................... 29 3. UK immigration law and policy ................................................... 40 4. The enforcement people ............................................................ 47 5. Traditional enforcement.............................................................. 62 6. Operation Gull ............................................................................ 75 7. Scrutiny and oversight of the UK Border Agency’s functions....... 83 8. Conclusions and recommendations ............................................ 93 Bibliography ...................................................................................... 94 Appendix 1: Methodology.................................................................. 96 Appendix 2: Notice to detainee: reasons for detention and bail rights.... 98 Appendix 3: Disclaimer in the case of voluntary departure .................... 5 Our Hidden Borders – The UK Border Agency’s Powers of Detention Acronyms AIO Assistant Immigration Officer CIO Chief Immigration Officer CPT Committee for the Prevention of Torture ECHR European Convention on Human Rights ICCPR International Covenant on Civil and Political Rights IO Immigration Officer LEO Local Enforcement Office PACE Police and Criminal Evidence (NI) Order 1989 PSNI Police Service of Northern Ireland UKBA UK Border Agency 6 Our Hidden Borders – The UK Border Agency’s Powers of Detention Executive summary 1. In 2005, the Northern Ireland Human Rights 7. The investigation required access to: UKBA Commission decided to conduct an staff involved in immigration control in investigation into how immigration officers Northern Ireland and PSNI officers seconded of the, then, Immigration and Nationality to the UKBA; statistics on the numbers of Directorate arrived at the decision to people against whom enforcement action recommend that individuals be detained. has been taken; UKBA operations; case files relating to individuals in contact with UKBA; 2. The Commission’s main concern was and individuals held under immigration whether the deprivation of liberty was being authority. authorised in accordance with the requirements of Article 5 of the European 8. Investigators began interviewing UKBA staff Convention on Human Rights. in November 2006, using semi-structured interviews, while some outstanding issues 3. The investigation examines the extent to regarding access to case files and UKBA which human rights are engaged in making operations were being resolved. the decision to detain and how those detained are then being protected. 9. Investigators observed UKBA operations in Northern Ireland, as well as the briefings 4. When the Commission decided to conduct prior to and post-operation which were the investigation, people detained under attended by UKBA staff and seconded PSNI immigration authority were held in the officers. In particular, there is substantial Northern Ireland prison estate. However, a concern among practitioners about the way change in UK Border Agency (UKBA) policy, in which Operation Gull is conducted and in January 2006, means that immigration whether ‘racial profiling’ is used by the detainees and some asylum seekers are UKBA. transported from police custody suites to immigration removal centres in Great Britain. 10. Investigators interviewed detainees. The UKBA was not aware that investigators 5. While the place of detention had changed, would speak to all of these detainees. the human rights concerns remained and were exacerbated by the fact that people 11. The investigation report examines the were being transported around the country. international human rights standards relating to immigration and asylum. It then looks at 6. Without the statutory powers to compel domestic legislation and policy on evidence, the Commission had to rely on the immigration and asylum and examines the co-operation of the UKBA in order to obtain extent to which this complies with the access to personnel and documentation. international standards. Obtaining the necessary access involved lengthy discussions at various levels within the UKBA. 7 Our Hidden Borders – The UK Border Agency’s Powers of Detention 12. The investigation report asserts that 17. Further, it shows how official government domestic legislation and policy leave too documentation given to all detainees fails to much
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