Beyond Shaw: what does the future hold for detention? - Refugee Council
January 18, 2016

Beyond Shaw: what does the future hold for detention?

Last week a Government commissioned review into Britain’s immigration detention estate produced its conclusions. Here, Refugee Council Parliamentary Manager Jon Featonby takes an in-depth look at what the report means for the future of detention.

I spent a significant amount of time last Thursday morning repeatedly refreshing a webpage on the Home Office’s section of the Government’s website. I was waiting the release of a report on one of the murkier aspects of our immigration system. After eleven months, the “Review into the Welfare in Detention of Vulnerable Persons”, commissioned by the Home Secretary and carried out by former prisons ombudsman Stephen Shaw, was to be published.

In large part, the desire to see the Shaw Review published was to get it out of the way rather than a hope that it would contain radical recommendations for the reform of immigration detention. Since the review was announced by the Home Secretary last February, it has, more often than not, become the Government’s catch-all response to criticism of the way the detention system operates.

And there has been a lot of criticism in that time.

Shortly after the report was commissioned, Channel 4 broadcast shocking reports documenting abuse of people held inside Yarl’s Wood IRC. This was followed by the publication of a report authored by a group of cross-party parliamentarians who called for radical reform of the way the UK uses immigration detention, including the introduction of a maximum time limit on the length of time someone can be detained. The UK is, after all, the only country in the European Union not to have a maximum time limit. The Chief Inspector of Prisons has since endorsed that call.

But the answer to these calls, which MPs continued to make during debates on the Immigration Bill, were often rebutted by Government Ministers pointing to the Shaw Review as the answer to all the ills.

In many ways, this was an inadequate response. As has been pointed out elsewhere, the terms of reference for the Shaw Review specifically said that it “shall focus on policies applying to those in detention, not the decision to detain.” That it would not be able to look at how people end up in detention in the first place would, it was feared, prevent Stephen Shaw from considering the fundamental reforms campaigners had long been calling for.

So it was with a sense of “let’s get this out of the way”, that I sat refreshing my screen.

And then it appeared.

The first thing I noticed was that the Review was some 349 pages in length. The second thing, turning immediately to the relevant section, was that Shaw had made 64 recommendations.

Reading through the report, it is clear that Shaw had interpreted the terms of reference given to him slightly more loosely than many may have feared.

The key finding of the review is that the Government does not do enough to protect vulnerable people in detention. Shaw is particularly damning in his treatment of Rule 35 reports, which in theory provide a safeguard for vulnerable people whose continued detention would be detrimental to their welfare.

Many organisations, including Medical Justice and Freedom from Torture, have long argued that it is a safeguard that is failing. Shaw agrees. Furthermore, he does not believe that merely improving the way Rule 35 reports works would be enough. The issue, he says, is “that the Home Office does not trust the mechanisms it has created to support its own policy.” Shaw recommends that the Home Office “immediately” explores alternatives.

Stephen Shaw is also highly critical about the way the Home Office identifies vulnerability in its policies. Nick Hardwick, the outgoing Inspector of Prisons, previously found that 99 pregnant women had been detained at Yarl’s Wood during 2014. In his review, Shaw states that detention has an “inconvertible deleterious” effect on pregnant women and their unborn children.

Additionally, he believes that the Home Office should acknowledge that in the vast majority of cases, the detention of pregnant women does not result in their removal. Shaw recommends that there should be an absolute exclusion from detention for pregnant women.

The idea that detention should be closely tied to removal is a theme that runs through much of Shaw’s review. That detention centres in the UK are called “Immigration Removal Centres” would suggest that those people who are detained are then going to be removed.

However, during the last quarter for which statistics are available, only 40% of people who left detention did so because they were removed from the UK. For the majority of people, their detention ends with them being released back to their communities, having potentially spent months, if not years, needlessly being locked up indefinitely.

Considering that statistic adds to the niggling feeling that there is something missing from Stephen Shaw’s review. The 64 recommendations he makes are welcome, and most mirror what has been argued for in previous reports. For example, recommendations on allowing those detained to have greater access to the internet in order to better keep in touch with friends and family, restricting transfers between detention centres, and improving health care screening, were all made by the parliamentary inquiry. It is also welcome that Shaw recommends the Home Office look to develop alternatives to detention.

However, while there is a real sense that Shaw has pushed the terms of reference almost as far as he could have, the worries I outlined earlier about the scope of the review resurface. It appears that Shaw is himself aware of them. In the foreword to the review he writes:

“As my report makes clear, healthcare and particularly the impact of detention upon detainees’ mental health, has been at the heart of this review. For that reason alone, it is not possible to distinguish the fact of detention from the consequences for welfare and vulnerability. As a result, while the many proposals I make in this report should improve care and wellbeing, and ensure that the most vulnerable do not suffer unnecessarily, in themselves they do not go far enough.” (emphasis added)

That he has made 64 recommendations shows that the way the UK Government uses detention for administrative purposes does not work: fundamental reform is needed. As Shaw argues, the UK needs less detention and what detention is deemed necessary must be better focused.

And this is what appears to be missing. It would seem logical that in order to achieve these twin goals, a recommendation for a time limit should have been forthcoming.

A limit of 28 days, for example, would help ensure that people are not needlessly detained for months at a time before being released back into their communities. It would focus the Home Office on detaining only those it could be confident of removing and act as an incentive for developing more nuanced community based alternatives.

Having said that, the final sentence of Stephen Shaw’s conclusion should not be ignored:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced.”

So while not explicitly endorsing a time limit, he does unambiguously rule it in as a possible part of the solution to how the Government can reform, for the better, the way it uses detention.

And that perhaps points to what needs to happen next. Shaw’s review shows there are real problems with the detention system. Most of what Shaw finds, like the parliamentary inquiry before him, is not new: there is little in his review that will come as a surprise to people who are familiar with the issues. But what is new is who has said it and the context in which it has been said.

This was a Government commissioned review. The Home Office will need to respond to it, and indeed has already started to do so (see the page-and-a-half response issued last Thursday). It provides a marker for organisations and parliamentarians to hold Government Ministers to. It endorses many of the arguments that have been used by those advocating for a time limit and wider reform.

The Shaw Review was, in reality, very unlikely to be the silver bullet some may have wished it was. But it should be welcomed and the reform agenda it pushes embraced.

It is for those of us who believe there should be a time limit to show how such a limit would not only fit within that agenda but also ensure the changes Stephen Shaw recommends result in meaningful reform. Those efforts to shape the policy response to the review must start now—the Home Office received Shaw’s report in September so has a head-start is formulating its response—and they start with the House of Lords’ consideration of the Immigration Bill this week.

In short, the Shaw Review is not the beginning, nor is it the end. But it is a step in the right direction.