Lifting the lid on child detention

Children’s Commissioner Sir Al Aynsley-Green has said the detention of immigrant children is wrong. The report is the latest in a series critical of the current process.

Jill Rutter works for a charity supporting refugees and migrants and is an associate fellow of the Institute for Public Policy Research; she is writing in a personal capacity

Yesterday Sir Al Aynsley-Green, Children’s Commissioner for England, published a follow up report on conditions faced by children held at the Yarl’s Wood Immigration Removal Centre in Bedfordshire. The report is the latest in a series critical of the current process.

Every year about 2,000 children are held in detention centres such as Yarl’s Wood, most of whom are held for periods of less than seven days. Aynsley-Green’s report acknowledges improvements to the physical environment at Yarl’s Wood, but argues that the detention of children subject to immigration control is wrong. His report is the latest in a long line of publications that are critical of the detention of children subject to immigration control, most recently a policy statement from the Royal Colleges of Paediatrics and Child Health, General Practitioners and Psychiatrists. Another recent report from Save the Children suggests frequent police station reporting and graduated systems of community supervision as alternatives to detaining asylum-seeking families.

Aynsley-Green’s report provokes many questions. Why are children being detained? Is an end to the detention of children a realistic call? Are there alternatives to detention for families who face removal from the UK? How can we safely return children who have exhausted their rights to stay in the UK? Crucially, are those who criticise the use of administrative detention for children focussing on the right issues?

Home Office statistics show that 315 children were held in immigration detention in the third quarter of 2009, of whom 63 per cent were asylum-seekers, with the remainder households who had overstayed their visas. The Government argues that it only detains children as a last resort, prior to that family’s removal from the UK. The statistics show otherwise – just 48 per cent of children held in detention ended up being removed from the UK in the third quarter of 2009. The remainder were released within the UK, often because a new solicitor had made successful representations for these families, or submitted new evidence to back up an asylum claim.

This startling statistics throw light on one of the major reasons that children are being held in detention. Poor quality legal advice, in some cases no legal advice, result in badly prepared asylum applications being sent to the UK Border Agency. These asylum applications may not disclose the full facts behind flight to the UK. Additionally, the quality of asylum decisions made by the UK Border Agency often leaves much to be desired: research reports and whistleblowers talking about a culture of disbelief held by immigration officers and the evidence submitted by asylum-seekers and expert witnesses dismissed. All this means that a good solicitor can often challenge an asylum decision and that family can be released from detention.

Ensuring early access to quality legal advice would certainly reduce the numbers of asylum-seeking families held in detention. Campaigners for refugees argue that asylum-seekers should be referred to competent legal advisers at the point when they request asylum. An asylum application should include witness statements and corroborative evidence, rather than be based solely on an oral interview. Solicitors should be reimbursed to provide this initial support in a manner that covers their expenditure. While all this would cost money, it would also reduce costs to the public purse, through a reduction in expensive asylum appeals and the need for detention places.

But introducing early access to legal advice is only part of the story. We also need to improve the quality of asylum decisions in the UK. This too, would reduce the numbers of families held in detention then released again. Our present asylum system is adversarial – the asylum-seeker is pitted against the UK Border Agency. It is also prone to politicisation – with governments exerting pressure to reduce asylum numbers and reject asylum applicants. Many commentators, including Iain Duncan’s Smith Centre for Social Justice, now argue that we need an asylum application system that is inquisitorial and independent of government, perhaps mirroring Canada’s asylum determination system. Here asylum-seekers lodge written evidence with the independent Immigration and Refugee Board (IRB), explaining the reason for seeking refugee in Canada. The asylum-seeker then attends an oral hearing that further explores the reasons for seeking asylum in an non-adversarial manner. The IRB also has access to a high quality information base that can be used to check the credibility of an asylum case. Better quality initial decisions reduce appeals and the need for last-minute interventions by solicitors when a family is in detention. In Canada less then 1 per cent of initial decisions were over-turned on appeal in 2007. In the UK, 89 per cent of negative decisions were appealed in the same year and 23 per cent of appeals resulted in initial decisions being over-turned.

While improvements to the asylum determination system would reduce asylum-seeking families held in immigration detention, we must not forget that children who are not asylum-seeker are also detained. They are mostly from families that have overstayed their visas, who are effectively irregular migrants. Unless we support a policy of open borders, return to their home is the only policy position we can advocate and detention prior to return is probably a necessary evil. But among those who support migrants’ rights there has been very little consideration about what might constitute a just return policy that does not cause undue stress to children.

We need to think if there are any alternatives to detention for irregular migrant families – a group who may be more likely than asylum-seekers to abscond. We need to consider whether we should limit the detention of families to a maximum period. We need to put more resources into voluntary return and re-integration. Policy makers must also understand the pressures that cause some families to live as irregular migrants and the factors that stop them considering return. And we need to ensure that our foreign policy interventions tackle the root causes of irregular migration – lack of economic opportunities, instability and a lack of a welfare safety net.

Rather than focus solely on conditions facing children held in detention centres, we need to look at broader and more difficult issues. We need to examine the asylum-determination system, what constitutes a just return policy and how we respond to irregular migration. Unless we confront these issues, we are going to see many more reports about the detention of children in Yarl’s Wood.

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