Free Movement deputy editor Conor James McKinney has been exploring the day-to-day workings of the immigration tribunals. Above is a discussion with Emily Dugan of BuzzFeed News, a journalist with a long-standing interest in immigration and asylum issues whose latest report on the subject was published over the weekend. Below are CJ’s own impressions after a recent visit to the immigration bail list at Hatton Cross tribunal hearing centre.
“I hate this place”, David says fervently. A barrister from a prestigious London chambers, his dream Thursday morning clearly does not involve pacing a charmless tribunal corridor in the middle of a west London industrial estate. But then nobody at Hatton Cross, from the judges on down, seems particularly delighted to be here.
This hearing centre, hard by Heathrow airport, is one of the largest branches of the First-tier Tribunal (Immigration and Asylum Chamber) in the country. Hatton Cross — also known as Feltham — hears thousands of appeals against Home Office decisions every year. Among immigration lawyers, it is notorious for the bleakness of the setting and the harshness of its judges.
Other visitors are even less complimentary. One visiting journalist wrote that the area “feels like somewhere where humans should not be. It’s like Worthing crossed with Bosnia. Grey, grotesquely scaled and administrative”. Frankly, I’m intrigued.
Perhaps because the reports led me to expect something a bit more JG Ballard, the tribunal building itself doesn’t seem all that bad. The Royal Courts of Justice it ain’t, but the bland exterior and functional interior are nothing out of the ordinary. This is, after all, a country in which the justice budget is in the process of being cut by 40% from one end of the decade to the other.
I’ve decided to sit in on immigration bail hearings. These involve a tribunal judge deciding on applications for release from people locked up in what are officially called immigration removal centres, such as nearby Harmondsworth IRC. Most people seem to call them “detention” rather than “removal” centres, which is more accurate: only a minority of those released from detention are actually removed from the UK. A recent Bar Council report suggested that, as a result, “detention is an immigration control tool that is failing at considerable and unnecessary human cost”.
Whatever the nomenclature, conditions in these places of imprisonment are grim. Successful bail applicants are by no means free — their substantive immigration case will grind on, and they will be subject to bail conditions designed to ensure that the Home Office can keep tabs on them — but at least they’re out from behind bars.
The hearings are due to start at 10am, so I go through to the assigned waiting area. It’s a rectangle open to the corridor, with several hearing rooms opening off both. A few seats are occupied even at this early stage, but it’s deathly quiet after the immediate hustle and bustle of the foyer.
Sitting across the way is a big man with a cane and two young children in tow — obviously not one of the lawyers, who are identifiable by their suits, briefcases and airs of weary familiarity. The children look bored but a little apprehensive, as though waiting for the GP or a parent-teacher meeting. The stakes here are somewhat higher.
By now the waiting area has come alive with migrants, supporters, lawyers, interpreters and court officials all seeking one another out. Those whose business at the tribunal is personal rather than professional are somewhere on a spectrum between bored to lost; most of the chatter comes from the regulars.
I’m a barrister. Tamzin has asked me to come down today to represent you.
Any sureties here for Mr Phagoora?
If you don’t remember something, it’s better to say you don’t remember, rather than try and guess.
It’s up to the judge what order he hears the cases.
Have I got a Bengali interpreter for room six?
I was thinking of asking for an adjournment, but with this judge, I reckon we should just go ahead.
What do you want me to do? I’ve got seven cases I’m dealing with.
This last is the clerk for the hearing room I want, which lies somewhere behind a locked door at the far end of the corridor. She looks a little harassed as worried relatives — many of them “sureties”, a recently obsolete term for people putting up bail money — cluster around her, asking when their loved one’s hearing is. Any of the seven hearings could begin at 10am, or at 4pm; it seems to be pot luck on the day.
I enquire, respectfully, about access to the inner sanctum. She’s not impressed: I can come in when court starts. No, she doesn’t know when that will be.
Rebuffed, I sidle up to chat with Tom, a barrister who handles both immigration and criminal cases. “Believe it or not,” he says, “this is actually quite organised compared to a magistrates’ court”.
So far as I can tell, the bail hearings haven’t begun yet. I’m not surprised by this, having read one of my editor’s blog posts: “in my experience it is rare for any hearing to start at 10am in any hearing room”. But it’s dawning on me that I have no way of knowing when they do begin and I’m allowed in. Most of the hearing rooms are off the main corridor, and you can just peep in to see whether there’s a judge on the dais. The bail hearing room, by contrast, is invisible on the other side of that locked door.
It’s a matter of hanging around until the clerk lets through somebody involved with the case. David, the barrister from earlier, is in the same boat. “It pays to be on the good side of the clerks”, he reflects.
The Home Office presenting officer arrives. “HOPOs”, in immigration parlance, are civil servants trained to argue immigration cases on behalf of the government. I’m slightly surprised to see her confer with David before proceeding into the secure area. A working relationship with the opposition makes eminent sense, but it’s sightly strange to see it in practice.
David says that the presenting officer has new evidence backing up the Home Office’s opposition to bail in his client’s case. He wants to “take instructions” from the client in the secure detention holding room — that is, to ask for his explanation for the incriminating documents — but doesn’t speak Bengali and isn’t allowed to use the interpreter on hand for the hearing itself. Apparently the immigration authorities worry about the interpreters getting too attached to the detainees if they speak in private, although I’m told that, inconsistently, that’s not a worry for the criminal courts.
At all events, David is not confident about the prospects for bail. When a bail application is rejected, a fresh one can’t generally be made for at least 28 days, and a month is a long time in immigration detention. This restarting of the clock appears to weigh heavily on tribunal judges: David tells me that they used to suggest that a detainee withdraw a doomed application and apply again, without triggering the 28-day moratorium, but that there are now guidelines in place designed to stamp this out.
I’ve made it into the hearing room. Abul, the bail applicant, is already sitting in the dock flanked by two prison officers. David gives him a cheery wave.
The judge arrives through a separate entrance and the hearing begins. David raises the issue of taking instructions on the new Home Office evidence. The judge says that it hardly matters: the new evidence is “not a major point, looking at the case in the round”. This doesn’t sound promising.
Nor is the general argument David puts in favour of bail, in response to the presenting officer’s recitation of Abul’s “immigration history”, which includes living in the UK illegally for the best part of a decade.
Matters have changed, David says. (Lawyers never say “things” when they can say “matters”, just as “people” are always “individuals”.) An expert report is being prepared on the danger Abul will be exposed to on return to Bangladesh as the supporter of an opposition party. The fact that Abul admitted to the ten years of unlawful residence means that he is now cooperating with the authorities. Besides, the legal aid solicitors representing him are a respectable outfit, not one prone to “take on meritless cases willy-nilly”.
This one seems like barrel scraping, although I later learn that solicitors’ success rates are monitored by the Legal Aid Agency and they can risk their legal aid contract if they lose too many asylum cases in the tribunal.
The judge says she’s tempted to refuse the bail application. But she thinks that Abul might like to withdraw it at this point, and try again when there’s been a development with the expert report, as that might be within 28 days. She leaves the room while David and Abul confer. Naturally, they decide to take her up on the offer.
“So much for the judicial guidance about not encouraging people to withdraw!”, David announces. The presenting officer seems unruffled.
A young Turkish man with no lawyer, no English and a stutter recognisable even through the language barrier, Kismet says that he has constant vomiting and headaches in detention. He’s never experienced anything like it. The judge tries to steer him toward addressing the points made by the Home Office, but despite the improbably formal tone in which the interpreter renders his submissions, it’s obvious that they have no particular legal merit:
If it is possible to grant me permission I would like to stay with my elder brother please. Because whilst inside, my psychological state is continually deteriorating.
The brother, sitting beside me, hangs his head. No bail. As we leave the hearing, he tells me that Kismet has been self-harming in detention.
But not long afterwards, back in the waiting area, a successful bail applicant emerges with his twin escort of prison officers. To my immense surprise, one of the guards hugs the waiting lawyer, a handsome young Asian man. “You’ve done it again!”, she laughs. This has got to be against regulations, but my confidence in the system’s capacity for basic decency rises markedly.
According to a recently issued training note for tribunal judges
withdrawals should not be encouraged as an alternative to refusing bail. Although it is appropriate for a judge to give a preliminary view to ensure all matters have been considered, these [sic] should not be seen as encouraging last minute withdrawals.
There is, to put is mildly, some divergence between this stipulation and the reality on the ground in Hatton Cross. I’m now on the fourth hearing in which the judge has suggested that since the application is about to be refused, it might as well be withdrawn.
This applicant, Mark, is appearing on video link from the detention centre. Having missed the first part of the case, I don’t quite understand why the judge was leaning towards refusal, but piece the case together with Mark’s barrister, Emma, later on. There had been a recess while Mark faxed through evidence said to excuse a previous period in which he was out of contact with the Home Office (he had been in jail at the time, apparently). But there’s been nothing through after an hour, and while the clerk admits that could be down to an overburdened machine, the judge says they can’t wait any longer today.
Mark groans. His disappointment is evident even through the video link and he’s reluctant to leave the recording room at the far end.
My mind goes to a recent article in the Economist that took the continued use of fax machines as a case study in the UK’s economic backwardness. I haven’t used one in about a decade but they are a fixture in the immigration tribunal.
Emma later says that this judge seemed sympathetic, but once the paperwork is sorted and a fresh hearing arranged, it’ll be in front of a different judge. She’s not confident that Mark will get out if the new judge takes a harder line. Luck of the draw.
By now the hearing centre is virtually deserted. It’s an eerie contrast to the earlier maelstrom, like being in school on a Saturday. There are only two people left, Mohammed and his son Mizanur. “We’ve been here all day waiting for my brother’s case”, Mohammed says, “since 9.45 am”.
“Usually it doesn’t take that long”, their lawyer, Luke, chimes in. “It’s because of interpreters, and bringing people here in person rather than doing hearings over video link”. I bring up another article from Free Movement’s back catalogue. Because the immigration tribunal refuses to give cases a start time rather than just a date, Colin Yeo writes, “our clients end up sitting around all day… having all been told to turn up at 10am”. That was in 2008.
After the six-hour wait, it turns out that the bail application was straightforward. Bail is granted in a matter of minutes; Luke has all Mohammed’s paperwork in order. The presenting officer examines some of it, each movement methodical and purposeful — every inch the strong arm of the state.
Outside, though, waiting for the brother’s release, the all-business demeanour drops. “If only all my bail applications were that quick”, she jokes, heading for the exit. Luke laughs along, but his eyes follow her down the corridor. “The Home Office wasted everybody’s time by resisting that application”, he says quietly. “No reasonable judge would have refused it. They fight everything tooth and nail”.