Bail for Immigration Detainees (BID) has succeeded in persuading the HO to reverse its decision to redact particular parts of its Country Returns Documentation Guide. Having initially refused to release the full document in response to a Freedom of Information request – a decision subsequently upheld by the Information Commissioner – the matter was resolved on the first day of the hearing of an appeal brought by BID to the First-tier Tribunal.
The Country Returns Documentation Guide contains information relating to the timescales and obstacles for obtaining travel documents to enable the removal of foreign nationals from the UK. In particular, it contains information on the prospect of obtaining Emergency Travel Documents (ETDs). BID argued that access to this information is crucial to allow an assessment of the lawfulness of immigration detention and to ensure a fair hearing for people making a bail application.
The newly released Guide contains previously redacted information including the Home Office’s assessment of the likelihood of obtaining an ETD for each country, current country information, and constraints on the ETD process. Limited country-specific information for Cuba and Kuwait remains redacted. However about 95% of what was previously redacted has now been published.
Commenting on the agreement, BID’s Assistant Director Pierre Makhlouf said:
“I’m delighted that we have been able to secure the release of the Home Office’s Country Returns Documentation Guide. This would not have been possible without our amazing legal team including Timothy Pitt-Payne QC and Tom Cross of 11 King’s Bench Walk, along with James Neil, Andrew Denny, Maeve Hannah and Peter Tolson of Allen and Overy Solicitors, all of whom provided us with their services pro bono.”
“The Country Returns Documentation Guide is vital for people detained under immigration powers. It allows them to have all the information at their disposal when they put forward their case for bail, and prevents the Home Office from asserting that their removal is imminent when it is not.
“Where the evidence shows that removal is not possible, or not imminent, continued detention may be unlawful. Individuals should not continue to be detained if it is not possible to obtain a travel document.
“Immigration detention in the UK is only permitted for the shortest possible time, and only to facilitate removal. The Home Office’s Documentation Guidance provides realistic timescales for securing an ETD for each country. The truth is that in many instances there is no established timescale, or frequent, significant delays.
“At BID we help more than 3000 people a year apply for bail, and we rely on this information to guide our clients. We are firmly opposed to the use of immigration detention and believe that asylum seekers and migrants in the UK have a right to liberty and access to justice. This document is vital in bringing at least some transparency to the immigration bail process and we’re very satisfied that it will once again be in the public domain.”
Andrew Denny, partner at Allen & Overy, added:
“The team’s success in reversing the Home Office’s decision is a well-deserved victory for BID and its clients but it also sends a very clear message about how important transparency, the right to freedom and access to justice are in this country. We have worked with BID on a number of cases related to immigration detention and so this particular case was a natural fit for us, we are thrilled with the outcome and hope the benefits are felt by all of those in need of BID’s services.”
Notes:
1. The full document is made available on BID’s website as part of our Travel Document Project
2. In a decision dated 9 June 2015 the Information Commissioner agreed with the Home Office’s decision that had found that the redactions were necessary for the protection of the UK’s immigration controls and in favour of the UK’s international relations.
3. BID argued that the Home Office’s concerns were misconceived and that by disclosing the information to all detainees those wishing to return voluntarily would be assisted.
4. BID argued that Home Office concerns that the information could be used by uncooperative or partially cooperative detainees were also misplaced. A detainee who is uncooperative makes this abundantly clear and lack of cooperation can also be identified, and indeed can result in prosecution for a Section 35 criminal offence under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
5. BID also argued that disclosing the information at an early stage could help speed up the documentation process thereby reducing some unnecessary and long immigration detentions. This would help minimise the cost to the public purse of unnecessary detention and allow further savings through the early removal of persons seeking to leave the UK.
6. In its grounds of appeal BID also drew the Tribunal’s attention to a decision made on 28 May 2010 when the Home Office agreed to publish an earlier version of the Country Returns Documentation Guide. BID cited the Home Office’s agreement that “No evidence was identified that the release of the earlier Travel Document Information Guide was prejudicial to either international relations or the operation of immigration controls.”
7. BID argued that no evidence had been put forward following the disclosure of previously unredacted versions that publication of the Guide had undermined immigration controls or international relations.
8. Allen & Overy’s pro bono work is concentrated on providing access to justice for people and communities who may otherwise miss out. A&O’s global pro bono practice is focused on providing support in four areas where our pro bono work can have the biggest impact: providing free legal advice to disadvantaged individuals, supporting human rights work, assisting with microfinance and social investment projects and developing the rule of law in emerging economies. In the last financial year, Allen & Overy undertook 27,685 hours of pro bono and community investment work globally.
