Should an immigrant be detained in prison? This is the question the Court of Appeal had to decide on this month. It is worth noting from the outset that the Home Office’s policy of using prisons rather than a purpose-built Immigration Removal Centres as places of detention for convicted foreign national offenders who have served their custodial sentences and are awaiting deportation from the United Kingdom.
The issue is whether the continuing detention in prison after a sentence has been served is contrary to their right to Liberty under the European Convention on Human. Considering that prisons have not been built to hold immigrants, but rather to rehabilitate criminals. Once a criminal had completed their sentence, they would have been deemed as rehabilitated, and therefore, prison liberties and freedom the law would otherwise grant them. The difficulty is however, if the criminal would be detained in an Immigration Detention Centre immediately following the completion of his sentence. In such a case, how much freedom and liberty would he really be denied by simply continuing his detention in prison rather than relocating him to a detention centre.
This case concerned an Algerian national who was sentenced to a term of imprisonment for theft in November 2012. He was sent to Wandsworth Prison. The custodial part of his sentence was completed on 14 January 2013. Thereupon, he was immediately detained by the Home Office under Immigration Law. He remained in Wandsworth Prison, although he became entitled to be treated as an “un-convicted prisoner”, that is to say, like persons in prison on remand. He stayed there until 7 November 2013 when he was moved to Wormwood Scrubs Prison. On 21 March 2014, he was moved to an Immigration Detention Centre and on 31 July 2014.
Immigration Law does not specify where a person should be detained. Until 24 January 2012, the Home Office’s policy was that post the completion of their sentence, foreign nationals “should only be held in prison where they pose a serious risk to the stability of the Immigration Centre, they would have otherwise been removed to.
However, from 24th January 2012, the Home Office policy was changed. A foreign offender will now continue to be detained in prison, before any consideration is given by the Home Office, to transferring that person to an Immigration Detention Centres, even if they do not pose a risk.
Reasons for the change in policy was both due to physical and financial pressure. As a result the Home Office purchased a number of bed spaces from prison. The number of prison places available to the Home Office under this scheme was initially 600, but it increased to 1,000 in late 2012. The general rule was now that post sentence convicts would be held in prison unless the beds were required for other detainees, in which case they would usually be transferred to an Immigration Centre on a ‘first come in first out’ basis.
The question before the Court was whether an extended detention in prison, after the completion of the sentence was contravening such individual’s right to liberty.
While the Court of Appeal agreed that what is appropriate for those who had committed criminal offences was likely to be different to what was appropriate for those who had not. However, what was required was that conditions were appropriate, not that they were the most appropriate for the detained person. However, the court held that unless the prison conditions were ‘unduly harsh’, it would not be contrary to their rights to Liberty and they could continue to be detained there.
Of course, for some vulnerable detainees, prison detention might be seriously inappropriate and accordingly arbitrary, but that would always depend on the vulnerability of the detainee and the nature of the prison conditions. However, in this case the applicant possessed good health and with no vulnerability.
What is apparent from this judgement is that for all intents and purposes, prison and Immigration Detention Centres are required to carry out the same function where foreign criminals who have completed their sentence are concerned and there is now less of a distinction between the entities.