Ten minute read
The nationality and borders bill is a bit of a dog’s dinner at the moment, with over 80 amendments (and counter amendments). It is very difficult to anticipate which provisions will make it onto the statute book. However, its overarching intention – to make the UK the most hostile country in Europe for refugees, as set out in the new plan for immigration and the changes to the immigration rules published last October – remains undiminished.
In this article I look specifically at the provisions in the bill which, combined, allow the government to set up refugee internment camps in or outside the UK and to detain asylum seekers without time limit. The government’s previous history of operating internment camps suggests that these will be sites of great cruelty and abuse.
Criminalisation of asylum seekers
The bill proposes that people who arrive in the UK without prior electronic entry authorisation (EEA) will be deemed to be illegal immigrants and ineligible to apply for asylum. Governments can deny asylum to people convicted of a criminal offence and, by criminalising the means of arrival, the government may hope to keep within international law.
Those without an EEA may be sentenced to imprisonment for up to 12 months in the lower courts, or five years on indictment prior to deportation. As entry into the UK without prior authorisation will be a criminal offence, the bill proposes a presumption against bail while the case is processed. In other words, asylum seekers are to be detained from the outset, as criminals.
There are no exemptions for children.
While the bill requires that all those seeking asylum without an EEA are treated as criminals, some provisions indicate the government anticipates that some of those seeking asylum will not be charged with a criminal offence or may be found not guilty and subsequently given some form of protected status. Should refugees slip through the criminalisation net, they will still be denied leave to remain permanently in the UK.
The bill allows for a life-long threat of arbitrary removal preceded by detention as soon as the government considers it safe to do so. Removal may not be to the refugee’s country of origin but to any country that will accept them, and they may be detained in or outside of the UK.
Refugees as commodities for sale
Under the 1951 UN Convention on Refugees anyone who sets foot on British soil has a right to apply for asylum and criminalising the means of arrival may not prevent claims being made or having to be heard (there are many provisions in the bill that are likely to be contested in court).
To avoid the possibility of an asylum seeker setting foot on British soil and claiming asylum, the government proposes to stop boats in British waters and take passengers directly to an immigration centre outside the UK.
The bill allows for the removal of a person seeking asylum to a third ‘safe’ country, including children. The government has been clear in its intention that immigration processing centres will be off shore; the UK hoped that Albania or St Helena or Ascension Island might accept this role. David Davis MP attempted to amend the draft legislation to prevent asylum seekers being moved while their case was under consideration, but the amendment was defeated. Davis has also previously tried, unsuccessfully, to limit immigration detention to 28 days.
Neither the immigration plan nor the bill specifies that these immigration centres will be places of detention. But, as the current draft of the bill designates asylum seekers without an EEA as illegal immigrants awaiting deportation, and as such there should be a presumption against bail, it is difficult to see how any new centres will be anything other than ‘immigration detention centres’ under the proposals.
Essentially then, the bill allows for internment of asylum seekers without time limit, in or outside the UK. It offers refugees as commodities for sale to poorer countries or as a condition of international aid.
The Australian model
The government’s proposals for internment camps are primarily based on the Australian model, where those seeking asylum were shipped directly from the sea to the islands of Nauru and Manus belonging to Papua New Guinea, but the onshore camps are more akin to those operating in the US. There are still about 1.6m people held in US internment camps, many of whom were children separated from their parents on arrival by President Trump in 2019.
Just as the UK is now proposing, the Australian system categorises all those without visas as illegal immigrants. Detention for those without entry papers is automatic and lasts until such time as their case can be heard. Most of those detained are deported to their country of origin or to another country that will accept them. Australia does not offer permanent settlement to refugees and asylum seekers who cannot be deported and can no longer be detained, having been categorised as refugees, have no permanent rights.
The average length of stay in detention prior to deportation is 530 days. The longest is nearly seven years. Detention centres also house people whose visas have been revoked, having committed a criminal offence. Families including children are detained. Some form of mandatory detention has operated since the 1990s and some form of offshore detention since 2007. The numbers and processes have waxed and waned according to the political climate, the international situation and numbers of refugees seeking asylum, and the level of scrutiny and censure by civil society, the International Criminal Court and the UN.
Poor conditions lead to death and misery
The Australian Refugee Council has collated from the UN, NGOs and parliamentary and independent enquiries a wealth of evidence of the abuse and harm caused to those detained. This has included:
- “Sexual and physical abuse, including of children, women and homosexual people
- Inhumane or degrading conditions, including through overcrowding, poor quality housing and services
- Exposure to violence and harm, including from the military and the local community
- Grossly inadequate access to health services
- Deaths and harm caused by negligence or delays in getting medical treatment
- Terrible consequences to mental health, caused by indefinite and prolonged detention and the limbo caused by the uncertainty of the policy.”
In 2015, the Guardian published a harrowing database of ‘incidents’, misery and desperation on the island of Nauru, including sexual abuse and abuse of children. In 2017, Manus was closed and the refugees moved to Larengau on Manus Island by the Papua New Guinea government. In 2020 ,it released details of the torture of 18 prisoners in Bomana prison.
Government’s poor record on protecting those detained
Detention centres are, by their very nature, places rarely visited by the outside world. Over the centuries the high level of deaths in internment camps have been primarily attributed to poor administration, insufficient rations, overcrowding, poor hygiene and poor controls over disease, rather than systematic abuse. The Australian regime did not necessarily set out to be cruel; but the model inevitably leads to cruelty.
The UK has had a long history of failing to protect those it detains and governments have failed those for whom they have a responsibility. Current (criminal justice, mental health and social care) inspection reports indicate that the government has yet to find a way to detain people safely in institutions and the more people detained, the greater is the challenge.
The UK government is not alone. Other countries that detain high numbers of people also have a poor record of protection. It is for this reason, the UN Universal Declaration of Human Rights states that “no one shall be subject to arbitrary arrest, detention and exile”. It is simply not possible to have a large number of people incarcerated safely.
Immigration detention has been particularly poor in the UK. Older immigration inspection reports (pre 2018) into Colnbrook, Campsfield, Tinsley House and Yarl’s Wood all noted poor conditions and abuse at the time of their publication, but these reports have not been updated for some time. More recent reports – Brook House and Morton Hall, both 2019 –were equally scathing about the conditions, and the management and treatment of refugees. Only Dungavel House in Scotland has had a moderately favourable inspection report but even then, inmates were held for exceptionally long periods with no prospect of release or being deported to their homeland, and women were housed alongside men known to abuse women.
So extensive was the abuse of inmates at Brook House immigration centre in 2017, a public Inquiry was called and is hearing evidence until 10 December. The catalogue of abuse presented in evidence in the past week is shocking and sickening to hear.
The government now proposes to reopen Medomsley detention centre as an immigration centre for women to replace Yarl’s Wood. Yarl’s Wood has had a notorious history of extreme abuse and neglect and its closure is long overdue, but Medomsley was the site of decades of sexual and physical abuse of young men incarcerated for minor criminal offences; abuse which came to light in 2001.
Home Office resistance to scrutiny and indifference to harm
Home Office’s resistance to scrutiny must also be a major concern in respect of future safety for asylum seekers. It has consistently delayed publication of inspectorate reports, often for as long as six months, while failing to undertake any of the measures demanded in the reports. It has still not published the responses to the consultation on the nationality and borders bill, while playing down or ignoring the responses (most of them) which indicated that the bill would fail in achieving its objectives. Nor has it published the Home Office’s own risk assessment of the provisions.
The Windrush scandal must add to concerns. Not only were people wrongly detained and forcibly removed and exiled from the UK, but the government has subsequently failed to put the wrongs right or to pay the compensation it owes to the victims of its behaviour and policies.
If the UK government had a strong record of providing good quality accommodation, with good access to legal and other services and with efficient processes that minimise the length of time people might spend in custody, the proposals in the bill might not cause such alarm. But the government has shown itself incapable of ensuring anyone detained in the UK will be safely held and their rights protected irrespective of the reasons for their detention. Its handling of asylum matters has been consistently poor and the backlog of cases increases daily.
Internment camps are a new and more serious risk
Internment camps are places to which large numbers of people are detained on the basis of their collective status or identity. They operate ‘extra-judicially’ in that there is seldom any legal process through which the detention has been authorised, appeal is denied, and release is dependent on the country’s administrative rather than legal system. Detention is indefinite.
Internment camps have no purpose other than holding people until they can be released. It is generally assumed that, unlike concentration camps, cruelty, where it exists, is not an intended feature but may be a by-product of a harsh or under-resourced regime. However, internment camps can easily tip into being something much worse. For example the Nazi concentration camps started off as forced labour internment camps for political dissidents and only later because extermination camps.
The ‘refugee’ camps of the Boer War, housing those fleeing the UK government’s ‘scorched earth’ policy, were re-labelled concentration camps after the deaths of 26,000 Boer women and children, some of whom were deliberately shot. And the atrocities committed in the Guantanamo Bay internment camp by US forces suggest more cruelties are taking place than those caused by containment alone.
The first step in preventing the risk of such atrocities is to ensure the nationality and borders bill is not passed into law.