COVID-19 – Implications for Immigration Detention

The COVID-19 pandemic has had significant and widespread effects on immigration detention. Hundreds of detainees have been released and the Home Secretary is no longer detaining migrants from dozens of countries. This note sets out some of the significant changes.   

Who is being detained?

The Home Secretary disclosed evidence during Detention Action and Mikhail Ravin v Secretary of State for the Home Department (CO/1101/2020) that, in light of the likely return timescales, nationals of the following countries should only be referred for detention if they are “high harm FNOs [i.e. foreign national offenders]”:

• Africa: Algeria, Cameroon, Egypt, Kenya, Libya, Mauritania, Morocco, Somalia, Zimbabwe
• Asia: China, India, Pakistan, Sri Lanka
• Caribbean: Jamaica
• Europe: Albania, Austria, Bulgaria, Croatia, Cyprus, Italy, Poland, Ukraine
• Middle-East: Afghanistan, Iraq, Jordan, Kuwait, Lebanon, Saudi Arabia, Turkey

The same evidence explained that the following countries are not accepting returns under Dublin III and therefore individuals liable for removal to the following countries under this procedure should not be detained:

• Austria (unless tested negative for COVID-19), Croatia, Cyprus, Czech Republic, Denmark, Finland, Greece, Italy, Latvia, Lichtenstein, Luxembourg, Netherlands, Portugal, Poland, Romania, Slovakia, Slovenia, Spain.

It is unclear who is likely to fall within the category of “high harm FNOs”. Without any clear definition of the term, practitioners should be arguing for it to be interpreted and applied restrictively.

In the Detention Action claim, the Home Secretary stated that she would be urgently reviewing all cases and it appears that this will be taking place over the next month.

Aren’t all detainees at risk of COVID-19?

In Detention Action the High Court found that the Home Secretary had taken sufficient steps to ensure that detainees were able to self-isolate and socially distance in detention. The Court reached this view despite the evidence of Professor Richard Coker (consultant physician at Imperial College and head of the Communicable Diseases Policy Research Group) who concluded that up to 60% of immigration detainees could contract COVID-19. There continue to be reports of inadequate sanitation, space and protective equipment within the detention estate.

The High Court’s decision makes future challenges based on the risk of contracting COVID-19 whilst in detention very difficult. However, practitioners should still take detailed instructions from clients about the provisions in place to protect their health and safety as a case by case approach will be necessary.

What is the impact of the restrictions on international travel?

With most international travel suspended, detention is in many cases to may become unlawful on the basis that removal cannot be effected within a reasonable time. Practitioners will be very familiar with R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, which sets out the principle that if it becomes apparent that the Home Secretary will not be able to effect deportation within a reasonable period, she should not detain the individual in question.

There is simply no time frame for removal of detainees from nations which are currently not permitting international flights, either in general or specifically from the UK. Estimates for the lifting of travel restrictions are highly unpredictable but largely range from three to six months. The result is that every detainee faces a protracted period in immigration detention. It is worth noting the guidance given to First-tier Tribunal Judges considering bail applications:

“It is generally accepted that detention for three months would be considered a substantial period and six months a long period. Imperative considerations of public safety may be necessary to justify detention in excess of six months.” 

The Foreign and Commonwealth Office’s Travel Advice pages provide detailed information on the restrictions on international flights to various countries. This is an invaluable resource for anyone seeking to mount a challenge on the basis that their client cannot be removed within a reasonable period. However, as the bail application guidance foreshadows, the Hardial Singh principle of reasonableness will undoubtedly be looked at through a new lens, with public health imperatives casting a new light on what can be expected of the Secretary of State as far as non-dilatory action is concerned.

What about Adults at Risk?

It is arguable that any individual who is at ‘increased risk’ from COVID-19 may be an Adult at Risk for the purposes of immigration detention. They should therefore benefit from a stronger presumption in favour of release.

The NHS’ guidance notes that a wide range of individuals are at increased risk from Covid-19 including those over 70, individuals with heart disease, lung conditions, or diabetes who in the community are subject to “shielding”.  The steps taken to protect individuals in detention from COVID-19 may not be sufficient in individual cases to avoid someone in the high risk group from being particularly vulnerable to infection. Many individuals who fall into the high-risk group would in any event be adults at risk (for instance pregnant women or those over 70). It is worth noting that the Ministry of Justice has announced that pregnant women in custody who do not pose a high risk of harm to the public will be released in order to protect them and their children from COVID-19. No similar announcement has been made by the Home Office.

What effect has the Coronavirus Act 2020 had?

The Coronavirus Act 2020 does not make significant changes to the immigration detention system itself. It does, however, give new powers to immigration officers. Under Schedule 21(7) of the Act, if an officer has reasonable grounds to suspect that a person in England is potentially infectious, they can direct that person to go to a “screening or assessment place” or remove the person to that place. This power must be used in a necessary and proportionate fashion.

It is an offence to fail to comply with such a direction without reasonable excuse. Any conviction would lead to a fine rather than a risk of imprisonment.

Once at the screening and assessment place, Schedule 21(13) of the Act grants powers to immigration officers to keep the person there for a period of up to nine hours.

Schedule 21(2) permits an immigration officer to use reasonable force, if necessary, to exercise these powers.

Materially identical powers are set out in Schedule 21 Parts 3, 4 and 5 regarding Scotland, Wales, and Northern Ireland.

The contents of this briefing are not intended as legal advice.