The power of the Home Office to overrule decisions made by immigration judges has been branded “deeply concerning” by the Law Society of Scotland.
The professional body for nearly 12,000 Scottish solicitors says that the current immigration bail system does not “guarantee independent judicial oversight” which is contrary to what the Home Office says.
The Law Society spoke to The Ferret after providing a submission to Westminster’s Joint Committee on Human Rights (JCHR), whose latest report recommends that immigration detention powers should be stripped from the Home Office and passed to independent judges.
JCHR’s report described the UK’s immigration system as “slow, unfair and expensive to run”, adding that indefinite detention is “traumatic” and that the practice should be stopped, with people ideally held for no longer than 28 days.
About 27,000 people a year are detained in Britain for immigration purposes, usually without being given a date for release or deportation. A small proportion are held for more than a year.
In its submission to the JCHR, the Law Society highlighted a number of concerns including the issue of Home Office officials being able to overrule judges who sit on immigration tribunals.
“Another significant barrier in a detainee’s release from detention arises from the statutory provisions in the Immigration Act 1971, as amended by the Immigration Act 2014,” the Law Society said, explaining that in certain circumstances, the Home Office can ignore an immigration judge’s decision to grant bail.
The Law Society described this as “deeply concerning” and said that a statutory provision which entitles a member of the executive to overrule a decision of the judiciary – because that official does not agree with it – is “not in keeping with the principles of the rule of law”.
No matter what the tribunal says, the Home Office can turn round and say, 'we don't really agree'. Bilaal Shabbir, Law Society
In an interview with The Ferret, the Law Society’s Bilaal Shabbir, who works for MBS Solicitors in Edinburgh, said: “Basically, the new powers that came in with the Immigration Act 2016 meant the Home Office can refuse to consent to bail. No matter what the tribunal says, the Home Office can turn round and say, ‘we don’t really agree’.
“That’s enough to overrule a tribunal. It’s kind of mind blowing when you think about it. Decision makers now are Home Office reps. Even though you have this independent (immigration) tribunal which is technically supposed to have oversight of this process, their hands are tied when it comes to making decisions like this.”
In its evidence to JCHR the Law Society also said the UK Government should limit detention at Dungavel Immigration Removal Centre, South Lanarkshire, adding that four monthly reviews are too “infrequent”.
Another concern was over “remote detention” with the Law Society saying: “Where detainees are held in removal centres which are distant from their homes, their ability to access support networks – including financial guarantors and legal representatives – is inevitably compromised.”
Kate Alexander, director of Scottish Detainee Visitors, said the JCHR’s report is the latest in a “long line of reports and inquiries to highlight the injustices and harms of indefinite immigration detention”.
“The lack of a time limit and of judicial oversight of decisions to detain and maintain detention have been raised time and again by people with experience of detention and organisations working with them,” Alexander added.
Scottish Detainee Visitors said it shared the Law Society’s concerns on remote detention. “The different legal aid systems in England and Wales on the one hand, and Scotland on the other, add to the complexities which detainees face in accessing the support they need to challenge detention and apply for bail,” Alexander said.
“Where a Scottish resident is detained in a removal centre in England and Wales, their access to legal representation may be interrupted or blocked as a result of being moved outside the usual jurisdiction of the Scottish Legal Aid Board, and English or Welsh residents likely face similar problems.”
She continued: “We also recognise the Law Society’s concerns about remote detention. We frequently visit people in Dungavel who have been brought there from places as far afield as Bristol, Birmingham and London. This inevitably causes distress as they are unable to see their families, but can also have impacts on their legal cases, as the JCHR report recognises.”
Labour MSP Pauline McNeill said: “I share the Law Society’s concerns. Seems to me that the normal rule of law is that the Home Office would respect and apply a judicial decision. What kind of democracy are we if we do not accept the rule of law and respect for the courts.”
A Home Office spokesperson said: “Detention is an important part of the immigration system – but it must be fair, dignified and protect the most vulnerable. Immigration detention decisions are subject to judicial oversight.
“Detainees can apply for bail at any time. Additionally, last month we launched a six-month pilot to automatically refer detainee bail applications to the First-tier Tribunal after two months, building on the current statutory requirement of four months. This provides further certainty that detention is subject to independent judicial oversight.”
Last year The Ferret reported concerns that the Home Office officials had overruled reports by GPs who expressed concerns over the mental health of people detained at Dungavel IRC while recommending they should be released from detention.
This story was updated at 09.39 on 2nd March 2019 to add a comment from the Home Office.