In October 1998, Law Centre (NI) was awarded funding by the Northern Ireland Voluntary Trust to conduct action research into the detention of asylum-seekers in Northern Ireland. The Law Centre has been providing legal representation to asylum-seekers since the 1980s, and was becoming increasingly concerned at the growing number being held in prison for lengthy periods. Concern about the situation of asylum seekers in Northern Ireland was expressed during debates on the 1999 Immigration and Asylum Act, and visits to Northern Ireland to examine the issue were made by a representative of the UN High Commissioner for Refugees and members of the European Committee for the Prevention of Torture. In response, the Home Office Minister responsible for immigration and asylum policy, Barbara Roche MP, announced that the Home Office and the Northern Ireland Prison Service would carry out a joint review of the use of detention policy in Northern Ireland. This review is currently under way, and is due to be completed in late 2000. The Law Centre’s report, which is to be published in October 2000, aims to contribute in a constructive manner to the developing debate on the detention of asylum-seekers in Northern Ireland and to provide an information resource which will inform the Home Office review and future policy development.

Background and methodology

In its July 1999 White Paper on immigration and asylum, the Government began its statement of policy principles by saying:

This statement set out a conception of immigration policy based on the twin objectives of firm and effective enforcement of immigration control and compliance with international human rights standards. The emphasis on human rights compliance was timely, coinciding as it did with the government’s announcement that the European Convention on Human Rights would form part of UK domestic law from October 2000, and, in Northern Ireland, with the entrenchment of human rights and equality standards at the heart of the Good Friday Agreement and the 1998 Northern Ireland Act.

The report therefore seeks to analyse the use of detention in Northern Ireland in the light of the twin aims of human rights compliance and enforcement of immigration control. It examines the cases of the 75 individuals detained in prison under immigration legislation in Northern Ireland during the period between 1 January 1999 and 31 June 2000, focusing on a core group of 52 asylum cases in which the Law Centre provided advice or representation. After setting out the legal and factual context within which immigration detention takes place, the report summarises the provisions of international human rights law against which the exercise of detention powers must be assessed, and then moves on to analyse the use of detention in the 52 core cases in terms both of compliance with human rights and equality standards and of effectiveness in securing removal where the asylum application was unsuccessful. It examines who was detained, in what circumstances, the reasons for detention, and how detention was brought to an end. The second part of the report looks at the location and conditions of detention, and makes a number of recommendations based on international human rights and equality standards and guidance issued by the Chief Inspector of Prisons and others.

Seventy-five asylum-seekers were detained in prison during the eighteen-month period covered by the report. Thirteen were women, held at HMP Maghaberry, and 62 were men, detained at HMP Magilligan. Of the total number held, five were already detained on 1 January 1999, 37 were first detained during 1999, and 33 were first detained between 1 January 2000 and 31 June 2000. The average period of detention was 35.8 days, with overall length of detention ranging from one to 235 days. Nineteen nationalities were represented, with Romanian, Nigerian and Chinese detainees together forming 67% of the total number. In only eight of the 52 core cases was English spoken as the first language. The maximum number of detainees held at the end of any one month was seven at Magilligan and three at Maghaberry.

In Northern Ireland, the decision to detain an asylum-seeker is taken by an immigration officer, in the exercise of discretionary powers conferred by the 1971 Immigration Act. The Act permits the detention of anyone who is awaiting a decision on an application for leave to enter, or who is awaiting deportation or removal from the UK. The legislation contains no criteria setting out the circumstances in which the power should be exercised, and places no limit on the length of time for which someone may be held. Asylum-seekers have the right to apply for bail to an independent immigration adjudicator, but in Northern Ireland, unlike in Scotland and (soon) England and Wales, there is no access to Legal Aid for representation at bail hearings.

International human rights law and refugee law places limits on the power to detain. Article 5 of the European Convention of Human Rights (1950) enshrines the right to liberty, but authorises detention to prevent unauthorised entry or where action is being taken with a view to deportation or removal. However, detention must be necessary in all the circumstances of the case, and must be in accordance with a domestic legal regime which is sufficiently precise to enable an asylum-seeker to foresee the consequences of her/his actions. Detainees have the right to receive reasons for their detention, to bring a prompt legal challenge to the decision to detain, and if detained unlawfully, to receive compensation. Article 9 of the International Covenant on Civil and Political Rights (1966) contains similar provisions.

The UN Refugee Convention (1951) provides at Article 31 that asylum-seekers who enter a country illegally should not be penalised for their illegal entry, provided that they present themselves to the authorities without delay. It also prohibits unnecessary restrictions on their freedom of movement. These provisions have been strengthened by conclusions and guidelines issued by the office of the UN High Commissioner for Refugees, which state that as a general principle asylum-seekers should not be detained.

In the 52 cases analysed, the majority of those held were first detained whilst travelling to Northern Ireland from other parts of the UK. 67% were detained upon disembarking ferries from Stranraer to Belfast, leading to concerns that unofficial internal immigration checks are being conducted. Others were detained following enforcement visits to a home or place of work, disembarking flights from Luton, following arrest by the police, or on applying for asylum at the airport or immigration office. In all 52 cases the individual concerned had sought or wished to seek asylum in the UK or the Republic of Ireland, with 37% having already applied in the UK at the time of initial detention, and 25% with applications pending in the Republic. Two asylum-seekers were detained after presenting themselves voluntarily to apply for asylum, in breach of the Immigration Service’s own guidelines on detention. The report identifies a number of concerns around the reasons for detention.

A particular concern was the high number of cases in which individuals who had applied for asylum in the Republic of Ireland and then crossed into the North were detained for lengthy periods whilst the UK immigration authorities made formal requests to the Department of Justice in Dublin that they be accepted back. Delays within the Home Office meant that the average period in detention before transfer was 49 days, despite the fact that the asylum-seekers themselves wished to return as quickly as possible. In a significant number of such cases, parents were separated from young children, and in two cases, children were taken into care as a result. In other cases, parents were separated from families in England for lengthy periods.

One of the most striking aspects of the statistics was the very small number of cases (8%) in which detention led to the asylum-seeker’s enforced removal. More than four times this number (38%) were eventually released on bail. The small number of enforced removals casts serious doubts on the effectiveness of the use of detention as an immigration enforcement tool. Whilst a further 23% of detainees were removed to the Republic, the fact that the asylum-seekers concerned consented to this, and wished to travel to the Republic in any event, undermines any suggestion that such removal amounted to positive enforcement of immigration control and casts serious doubt on the need for detention in the first place. A major concern was the high number of asylum-seekers (27%) who opted to withdraw their asylum claims and return to their countries of origin, leading to concern that detention in prison conditions is inhibiting access to asylum de-termination procedures.

The primary recommendation of the report is that asylum-seekers should only be detained in cases of necessity, in accordance with the guidelines issued by the UN High Commissioner for Refugees. These permit detention in four narrow sets of circumstances only: to verify identity, to determine the basis of the asylum claim, where the asylum-seeker has attempted to deceive the immigration authorities by destroying travel documents or using fraudulent documents, or to protect national security or public order. Detention should always be for the shortest possible period.

Alternatives to detention should be developed which permit close supervision of individuals thought to be at risk of absconding. A dedicated accommodation facility could be developed in Belfast which would provide asylum-seekers with access to welfare and community support. Where necessary, conditions could be imposed to enable the Immigration Office to exercise close supervision without resorting to detention. These could include the imposition of strict reporting requirements, a condition that an asylum-seeker reside at a particular address or even requiring her/him to sign in and out each time s/he leaves the building.

The report examines the international standards applicable to conditions of detention is some detail, including the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (1988), the European Prison Rules (1987), and recommendations by the UNHCR, UN Committee Against Torture, the European Committee for the Protection of Torture and others. These conclude that in no circumstances should asylum-seekers be held with convicted prisoners.

Other commentators, such as the Chief Inspector for Prisons, have said that asylum-seekers should not be held in prison. It is therefore grounds for considerable concern that asylum-seekers in Northern Ireland are held in Magilligan and Maghaberry Prisons, alongside sentenced prisoners, and the report therefore recommends that this practice be brought to an end as a matter of urgency. It recommends that if a small number of asylum-seekers are to continue to be detained each year in Northern Ireland, consideration be given to developing a small immigration detention facility located close to or in Belfast, and structured arrangements for support from ethnic minority groups, access to interpreters and legal advice, and other specialist facilities be put in place.

In recognition however that this facility may take some time to develop, the report also sets out a number of recommendations derived from reports by the Chief Inspector of Prisons, the Prison Reform Trust and others which should be immediately implemented at Magilligan and Maghaberry.

1 Fairer, Faster and Firmer - a Modern Approach to Immigration and Asylum Cm 4018, 27 July 1998

Copies of the full report are available from Law Centre (NI)

© Law Centre (NI) 2000

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