Pro bono support for asylum seekers detained in the UK
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In July this year, trainee Ella Rees, associate Rhona Egerton and lead partner James Freeman – all based in London – helped to launch a project to process bail applications for asylum seekers being held in immigration detention in the UK.
This is an issue becoming increasingly difficult for immigration lawyers to tackle given the growing number of refugees now being detained indefinitely.
The project with our long-term partner Bail for Immigration Detainees (BID) has been developed specifically to support asylum seekers at risk of removal to Rwanda under the new UK Government scheme introduced in April this year.
Most asylum seekers issued with these notices are recent arrivals to the UK and have nothing to suggest they pose a flight risk or danger to the public. The UK is also the only country in Europe that puts no limit on the length of time individuals can be detained in immigration centres.
“These are some of the most vulnerable asylum seekers who really struggle to get their voices heard within our justice system,” says Rhona.
“All the clients we’ve worked with so far have mental health issues. Many have experienced severe trauma directly linked to previous detention experiences and, in a lot of cases, show indicators of trafficking,” she says.
Ella identified the potential opportunity through volunteering with another NGO and was heavily involved in the project design process.
“The fact that this group can be detained indefinitely in the UK system – with the added looming threat of being put on a flight to Rwanda after everything they’ve already been through – made this project feel urgent and much needed,” she says.
For lead partner James, establishing a team, recruiting volunteers and organising training – all within a couple of weeks – was no mean feat. “I was so impressed at the speed with which BID and the A&O team worked to get this off the ground and am very pleased to be sponsoring such an important project.”
Legal and practical obstacles
A combination of high demand and cuts to legal aid have resulted in a huge backlog of bail applications. A&O’s team has been working with BID and its supervising barrister, Nic Sadeghi, to prepare bail application forms, draft the grounds for and proposed conditions of bail, as well as prepare evidence bundles and help to brief counsel for tribunal hearings.
A number of common grounds form the basis of most applications – including applicants being at high risk while in detention, unlikely to abscond, and having no timeframe for being removed from the UK – in other words, facing indefinite detention. Forming an effective process by which these reasons can be articulated as clearly as possible makes it easier and quicker for a tribunal to grant bail.
“We’ve found, however, that the hearings are often being scheduled very quickly after the bail application form is lodged,” Rhona says. “This means we’re faced with tight deadlines to prepare the grounds and proposed conditions for bail, and to submit finalised applications.”
The evidence available for each client is often also limited, so volunteers work carefully through what is available to extract the relevant information and piece together the full picture of why each client should be granted bail until their immigration hearing. Many clients speak little or no English, nor do they have an email account, so the documentation has to be submitted by fax.
Where concerns arise over individuals being victims of trafficking, volunteers alert the National Referral Mechanism, which identifies victims of modern slavery in need of support. Two clients were referred through this as a result of issues spotted during preparation of their bail applications. Both clients have been identified as potential trafficking survivors at the initial decision stage and referred for additional support.
“It can be a huge mental boost for a client to feel like they have someone on their side who listens to them, and who will make good on their promise to do their best to help,” Rhona says.
100% success rate for asylum seekers
Every asylum seeker that BID’s project has helped so far has successfully been granted bail, or bail in principle. This included one particular individual the A&O team supported, who had been held in a detention centre for three months.
“Our client had been taken to detention almost immediately after arriving in Dover on a small boat,” Ella explains.
“He had reported a history of torture in Libya, was clearly suffering from severe mental health issues and had already tried to commit suicide in detention – yet, despite medical reports stating the damage prolonged detention was likely to do, he had still not been granted bail.
“We subsequently collated the evidence and submitted a bail application for him, ultimately succeeding in securing his release from detention into Home Office accommodation,” she says.
Bail without tagging
BID has also successfully argued for the majority of clients to be released on bail without being subject to electronic monitoring – ie tagging.
Tagging all asylum seekers who have arrived by small boat is a policy the UK Home Office has stated it intends to pursue. It is already trialling a pilot scheme under which applicants are offered immediate bail on the condition that they agree to be tagged. Read BID’s recent report on this here.
“Tagging is offered without reference to the right to seek Tribunal bail,” Nic says. “It is made to people who are traumatised, scared and have already been detained for a prolonged period of time. They’re essentially being invited to exchange one curtailment of their liberty for another – both of which are disproportionate in the circumstances.
“Having made bail applications for 16 recipients of ‘notices of intent’, only two that we’re aware of were given a tagging condition by the Tribunal – at least one of which was ultimately expunged following judicial review steps by a public law solicitor,” says Nic.
The fact that Tribunal judges have generally not ordered tagging when granting bail in these hearings underlines the importance of BID’s project in ensuring that bail is not only granted, but is free from excessive and potentially unlawful conditions.