Britain's Forgotten Prisoners

16/10/2012 10:04 BST | Updated 15/12/2012 10:12 GMT

You do the crime, you do the time. For the majority of those given determinate prison sentences in the UK, this captures the essence of their criminal justice journey: you're convicted of an offence, you go to prison, you serve the sentence you're given, and you're released. For non-UK citizens, however, the saying fits rather less neatly. 'You do the crime, you do the time, and then probably quite a bit more' would be a more accurate - if admittedly less catchy - summary.

Foreign nationals who have served a prison sentence and who are facing deportation very often continue to be held in custody following the completion of their sentence. A 2011 report from the Chief Inspector of Borders and Immigration highlighted that, in January last year, more than 1,600 foreign national ex-prisoners were being held post-sentence under immigration powers, whilst the UK Border Agency (UKBA) pursued deportation action against them.

Whilst some are transferred to immigration removal centres (IRCs), a significant number remain in prison. Figures just obtained under the Freedom of Information Act by the charity I work for, the Detention Advice Service (DAS), show that the population of post-sentence detainees in prison across 2012 has ranged from around 540 to 600 at any one time.

These detainees are not included in official statistics: when the Home Office says, as it does in its most recent quarterly bulletin on migration, that "as of the end of June 2012, 2,993 people were in detention", what it actually means is that just under 3,000 people were being held in immigration detention facilities - IRCs, short-term holding facilities and 'pre-departure accommodation'. In fact, including the figures we have obtained under the FOI Act, at the end of June this year, there were 3,558 people in detention.

Given that those being held under immigration powers in prison make up just under one-fifth of the overall detained population, it's far from clear why they are excluded from the Home Office figures. Prison detainees' lack of visibility in official records, however, provides a neat metaphor for their situation. Published in 1992, a report by DAS entitled 'Britain's forgotten prisoners' highlighted the difficulties faced by immigration detainees in prison, and their lack of access to services and support. Twenty years on, disturbingly little has changed.

Lack of access to legal advice is one of the most significant issues faced by prison detainees. Though not without its problems, in IRCs, there is coordinated provision of immigration legal advice through the Detention Duty Advice (DDA) scheme. In prisons, however, no such provision exists. Some prisons, including the 12 that DAS works directly in, engage the services of an independent advice service; the majority, however, do not.

Without ready access to such advice, detainees - who may have little or no grasp of English - are left to face the complexities of the immigration system by themselves. As a result, many do not understand their situation, or, if they do, they are able to do little about it, causing them considerable anxiety and distress.

In many instances, distress resulting from an individual's immigration situation is exacerbated by lack of understanding of the prison system. Although many detainees in prison do not speak, read or understand English well or at all, as the Prisons Inspectorate has highlighted, in many prisons there is limited use of the telephone interpretation service - in our experience, prisons can be reluctant to use this because of its high cost, and sometimes staff simply don't know how to operate it - as well as a lack of translated printed information.

Prison detainees also face significant barriers to communicating with the outside world, and so with any external sources of support they may have. Email and the internet are not freely available, and mobile phones, permitted in IRCs, are prohibited in prison. Detainees have to make use of communal phones, of which there are rarely enough; making calls from these phones is, moreover, expensive, particularly to mobile phones and abroad. As well as hindering contact with family and friends, this hampers detainees' communication with their legal representative (if, of course, they have one).

Most worryingly, these detainees continue to be held in the purposefully punitive environment of prison after they have completed the custodial sentence handed to them by the criminal courts. In its standards on the treatment of persons deprived of their liberty, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) clearly sets out that holding immigration detainees in prison is "fundamentally flawed".

Indeed, in its most recent report on the UK, published in 2009, the CPT highlighted its concern that it had encountered "a number of foreign nationals who were being held in prison a considerable time after their sentences had expired", and clearly stated that "such persons, if they are unable to be deported at the end of their sentence, should be transferred to a facility designed to provide conditions of detention and a regime in line with the status of immigration detainees."

The figures obtained last week by DAS, however - alongside an earlier response to an FOI request, which shows that the population of prison detainees across 2011 ranged from around 450 to 610 - demonstrate little willingness to respond to this concern.

The 2011 report by the Chief Inspector of Borders and Immigration highlighted that, in spite of the official policy that the decision to detain foreign national prisoners post-sentence should take into account a number of factors, including the risk of reoffending, there remains within UKBA "a culture that detention is 'the norm' ... the default position is to identify factors that justify detention, rather than considering each case in accordance with the published policy." A more sparing use of immigration detention is clearly needed; we would argue that its use should be exceptional. Where it is used, however, prison can never be an appropriate environment for those who have completed their sentences and are being held under immigration powers alone, and this needs to be addressed with urgency.