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Points of contention in the UK’s detention policy

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The UK has the largest immigration detention system in Europe, and the numbers of persons detained in British immigration removal centres (IRCs) continues to increase. This year, events such as the hunger strike of detainees in Yarls Wood IRC in late February have captured public attention because they revealed some of the major points of contention regarding this regime today. More than a simple set of issues, these points uncover a rationale that needs to be reconsidered.

Immigration detention is a government practice where asylum seekers or other migrants are detained on grounds of needing to establish their identities, or to facilitate their claims resolution or their removal. It is administrative procedure rather than a criminal one. Border enforcement officials may detain migrants upon arrival; when being presented to an immigration officer; after an arrest or a prison sentence; and when a decision to remove the migrant has been made. However, there is a lack of information on the Home Office’s discretionary decisions on when and who to arrest and detain.

There has been a tenfold increase in the number of detainees between 1993 and 2012, and there have been approximately 3,000 migrants detained at any given time between 2009 and 2017. The 30,000 people who spend varying lengths of time in detention each year tend to be from former British colonies (South Asian countries and Sub-Saharan African countries by mid-2018). However, accurate data on detained persons is hardly available due to the complicated trajectories which could have led to a person being detained.

The most publicly criticised issue about immigration detention is the lack of a time limit. The UK has refused to institute a statutory time limit to detention and is thus the only state in the European Union without a legal detention time-limit. In 2016, around 81% of detainees were kept for two months or less. However, around 2% were in detention for 6 to 12 months, with another 1% kept for longer than a year.

Allowing for an open-ended detention period has no direct relationship with the ‘legitimate aims’ of immigration detention, which is to facilitate the processing of unclear immigration statuses or impending removal. Contrarily, this allows the government to use immigration detention for administrative convenience, and also as a means to punish and scare migrants. It causes major psychological distress; prolonged detention takes a serious emotional toll on detainees.

Yarls Wood has made the news on numerous occasions due to accusations of mistreatment and even abuse of women detainees. Women represent around 10 percent of the total population in detention and are concentrated in Yarl’s Wood. As reported by the media and a number of charities, an increasing number of women were detained despite evidence that they were victims of torture, rape and/or human trafficking. Many of these detained women were victims of gender-based violence had sought asylum on those grounds, but Home Office had violated rules by placing them in detention. Diane Abbott and Shami Chakrabarti were also disturbed by detainees’ lack of access to legal advice. Indeed, among detainees held in IRCs, just one in four were able to secure a legal aid solicitor in 2017.

The classification of detention as an administrative rather than a punitive measure has far-reaching consequences. Contrary to criminal law cases, there is no automatic judicial review of detention, which means that the Home Office, whose staff are known to be poorly trained and overworked, rather than judges, have the power to detain people. Therefore, the vast majority of detainees do not receive justice as they are entitled to and remain in uncertainty about their length of detention.

Detention is also extremely expensive. It cost the government £523.5 million between April 2013 and March 2017, with an additional £16.2 million spent on damages awarded to immigrants who were detained unlawfully in the same period. There has been much support for setting a 28-day limit to detention.

Detention has also been used almost as a prison “overflow” space. Among those detained for longer periods of time, many had some kind of criminal record and their detention periods end up being even longer than their prison sentence. This present situation is that of double punishment. In the second half of 2017, 1,671 (12%) entered through prisons, according to Home Office statistics.

In conclusion, human issues surrounding detention, as well as the financial costs have proved to be problematic, and the effectiveness of detention as a policy measure to control and patrol migration remains controversial. While major flaws are apparent, detention is far from a simple, one-root problem. It ties in to the UK’s hostile attitude towards migrants. In order to deal with the huge financial and human costs of detention, there is a need to revisit the state’s whole immigration regime, and the rationale behind it.

Elisabeth Tsouloukidse is an undergraduate student at Oxford University. Nina Khamsy is the head of Agora migration programme. Additional contributor: Jennifer Ngo holds a masters degree from SOAS University.

Where does the present state of Brexit negotiations lead?

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Despite some positive progress in negotiations in the past weeks, the Irish border remains a key obstacle to a Brexit deal. A lack of support for the Chequers Plan in both Parliament and the EU, no agreement on a trade deal, and the issue of the Irish border backstop all hinder the process of reaching a deal and may result in an extension of the negotiation period. This uncertainty over the final agreement leaves the British government with no clear direction over Brexit.

The failure of Chequer´s plan

Failure to conclude the Withdrawal Agreement by October 2018, as both the EU and UK had agreed to in the December 2017 Joint Agreement, creates uncertainty around reaching a deal by the expected time-framework. The Prime Minister’s so-called ‘soft-Brexit’ Chequers plan received little support from Parliament. Conservative MP Jacob Rees-Mogg stated that, “Theresa May’s soft Brexit agreement could be worse than a no deal”.

Disagreement amongst the MPs and with European Commission over the plan calls in to question the ability of the current government to provide a workable plan for all stakeholders. The former Brexit Secretary David Davis and Foreign Secretary Boris Johnson both resigned, calling Chequers a “suicide vest” for Britain and Conservative Party. The EU’s Chief Negotiator Michel Barnier regarded the plan as “strongly opposed” to the Union’s organisational objectives. In fact, Barnier has already proclaimed that the EU is preparing for a no-deal scenario. Moreover the European Research Group, the Democratic Unionist Party, the First Minister of Scotland, and Scottish Tory leader have all opposed the Chequers plan as they argue that the UK should remain in the Customs Union.

Irish backstop and extended negotiation period

The failure to provide a draft of withdrawal agreement by October, 2018 as both the EU and the UK agreed in the Joint Report of December 2017, creates uncertainty around reaching a deal within the expected timeframe. One of the most important issues in these negotiations is that of the Irish backstop. Significantly, the issue of the ‘backstop’ was mentioned when the UK government agreed to negotiate it in order to allow talks to progress beyond ‘phase one’ of talks. It refers to a plan to avoid a hard border between Northern Ireland and the Republic of Ireland, where this cannot be achieved through a broader trade deal between the UK and EU.

The Northern Ireland backstop is an issue not referred to in either the EU’s initial negotiating guidelines or in the following directives. The European Commission has proposed that Northern Ireland remain within the Customs Union and broadly continue to apply European rules on goods and trade, to allow for frictionless access to the EU. The UK has claimed that this would create a border in the Irish Sea. The Prime Minister therefore suggested that the UK as a whole stay in the Customs Union until December 2021 at the latest, but the EU has said that a backstop will not work if it is time-limited.

President of the European Council Donald Tusk has stated that there are “no grounds of optimism” regarding the Irish border. That leaves the UK government with no clear direction and, once again, a need to create a new plan that would be supported by both the Cabinet and the European Council. Tusk said that the EU leaders would discuss the ‘no deal’ scenario and make “every effort to reach the best agreement possible for all sides”.

A foreseeable ‘no deal’ outcome

The inconclusive discussions over the Irish border and the EU’s favoured position on the Customs Union continue to hinder process on reaching a deal. A lack of support for the Prime Minister’s proposals by both the UK Parliament and the EU has led to a situation where a deal might not be reached in time. While the EU and the UK agreed on a ‘temporary’ customs arrangement, cabinet Brexiters have insisted that the UK must have the power to leave the arrangement that has been negotiated as a means of avoiding a hard border in Ireland.

‘No deal’ seems to be the plan B for Britain at this stage. Plan A is to achieve a trade agreement with the EU that allows tariff and non-tariff barrier-free access to European markets, whilst remaining autonomous in terms of laws and regulations, and avoiding a hard border between Northern Ireland and Republic of Ireland. This plan A appears to be fading away, though, as EU and UK fail to agree on such a deal.

Maria Ioannou is a Campaigns Assistant at an NGO and interested in issues related to Brexit and European politics.

UK detention policy: time to change a broken system

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In the wake of Brexit, while the issue of immigration prevails in national debates, the damage of the Government’s ‘hostile environment’ policies, designed to deter illegal immigrants in the UK, are being put under increased scrutiny. The hunger strike of detainees in Yarls Wood Immigration Removal Centre in late February has captured media and public attention, while detention also came to the forefront of discussions after the Windrush scandal. The UK Immigration detention is one of the main areas of contention in the British asylum system. Why is it broken and how should it change?

While detention seems to be a convenient option for the state to manage migration, it is a costly solution. It also has damaging effects on detainees, as well as on the legitimacy of the UK’s immigration system. Every year, around 30,000 people pass through immigration removal centres (IRCs), also known as detention centres.

Cases of abuse have increasingly occupied the mediatic space with reports of charges over misconducts in places such as Brook House, an IRC near Gatwick Airport. For instance, detainees taking part in February’s hunger strike were protesting about the poor conditions in detention, but also the greater issue of the UK’s much-criticised indefinite detention. The strike started with a group of roughly 40 women, and numbers quickly swelled to over 120 by March. However, results remain to be seen. More recently, a survey has re-emphasised the urgency to tackle the deplorable situation in UK detention centres, where almost 56% of the study’s sample were either suicidal, seriously ill or victims of torture. This suggests that Home Office guidelines on detention have been breached, since such individuals are only supposed to be detained in extreme cases.

Immigration concerns are considered to be a main driving force behind the vote to leave the EU in 2016. They were a contentious and spotlighted issue during the Brexit referendum. In the following months, the government’s post-Brexit programme on migration will be watched closely by both national and international parties. This moment may also constitute an opportunity for deeper understanding and reflection on alternatives to the costly and damaging immigration detention system. As the new Immigration Bill is to be set out next year, detention will feature prominently in the framework of immigration law enforcement and related policy, and is inextricably entwined with the UK’s border and immigration regime and rationale.

As the largest immigration detention estate in Europe, the UK is also the only European country where indefinite detention is declared legal. However, as expressed by Shaw’s report to the Home Office, there is still too little known and little understood on the political, media and public understanding of institutions and processes linked to the immigration detention. In this regard, “public policy is not assisted when there is so little informed interest and debate”, according to Shaw.

To fill these gaps, Agora’s Migration Programme has undertaken an investigation to shed light on different aspects of UK detention policy. This is our series entitled: ‘UK detention policy: time to change a broken system’.

Our series starts with an overview of the UK’s detention policy and an outline of the major points of contention regarding this piece of government policy, which not only include its financial cost, but also the lack of detention time limit and claims of mistreatment. Our second blog article sheds light on the privatisation of immigration detention in the UK, and explores why outsourcing the immigration detention system makes accountability impossible. Our third article looks at the legal challenge of the immigration detention. It is followed by a blog on the media representation of detention centres in the UK. Our following blog article provides an overview of UK’s detention policies in comparison with EU countries. Our final article, for now, resumes the recommendations and sketches lines of future policies.

Jennifer Ngo holds a Masters degree from SOAS University and is a contributor to the Agora Migration programme. Nina Khamsy is the head of the Migration programme at Agora.

Freeze thaw: the Arctic, Russia and the naval threat to UK

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The recent strategic attention being given by the House of Commons to the Arctic is overdue but budget constraints are likely to hamper good strategy. Given dramatic increases in Russian activity in the Atlantic and High North and the UK’s location on the Northern Sea Route, the UK Armed Forces must grow their ability to operate in this challenging theatre.

Over the past six months, we have seen a flurry of parliamentary strategies on the Arctic from a diplomatic, ecological, economic and security perspective. The Defence Committee’s report published in August 2018 is dedicated to this latter issue, considering the preparedness of the UK in a region with a rapidly changing ecological and geopolitical environment. Granted, the UK only holds observer status on the Arctic Council and has no claims to the 5.5 million square miles of frozen terrain. However,  increased Russian military presence in the region and the opening of Northern shipping lanes on the edge of British waters impact the UK’s security, making it crucial that the UK has the ability to promote peace, stability and environmental responsibility through diplomatic and military means.

Preparation for a future with warmer winters and receding ice shelves requires a security policy that anticipates busier shipping lanes in Arctic waters north of the UK. Greater reliance on passage through Northern waters for European supply chains may put further pressure on future naval resources. In particular, the ‘GIUK gap’ between Greenland, Iceland and the UK on the Northern sea route risks becoming a strategic choke point. All of this means that the maritime environment is becoming more important, more hostile and closer to home.

The UK has neglected the Arctic and High North since the Soviet Union’s collapse. August’s parliamentary report emphasises that “the focus on operating in this challenging environment has been reduced over the long years of engagement in expeditionary operations in hot weather climates.” Indeed, HMS Trenchant’s experience in ICEX 2018 ends an eleven-year hiatus of Royal Navy participation in a biennial U.S. Navy Submarine Force tactical development and torpedo exercise in the Arctic Ocean (ICEX), suggesting a degradation of UK extreme cold weather operational skills.

While there is increasing recognition that the Arctic Ocean is fundamental to the security of the North Atlantic, this has not yet fed through to the UK’s defence policy and capabilities. Crucially after the retirement of Nimrod in 2010, the RAF currently lacks a Maritime Patrol Aircraft (MPA) capability, the backbone of anti-submarine warfare (ASW). The first new P-8 Poseidon MPA is not due until 2020 with the full squadron of nine expected to be operational by late 2023. Until then, the UK is dependent on NATO allies flying sorties from RAF Lossiemouth. The postponement of the Type 31e frigate procurement, which is due to play an active role in ASW missions, threatens the degree of British deterrence in an ever-changing region. The long-awaited defence review and a future National Security Capability Review should reprioritise ASW missions and the Arctic theatre, addressing these concerning naval capability gaps, although this remains unlikely.

Russia appears to have been emboldened by the decline in NATO’s extreme cold weather and ASW capabilities, as evidenced by the huge rise in recent maritime and military activity in the region. The recapitalisation of a previously ageing Russian submarine fleet under the Russian military modernization programme (GPV 2020) since 2008 has helped facilitate a “tenfold increase in the amount of submarine activity in the North Atlantic on behalf of the Russians” according to Defence Secretary Gavin Williamson in February 2018. At the same time, Chatham House Russia & Eurasia Research Fellow and Arctic specialist, Mathieu Boulegue, highlights Russia’s increasing military footprint in the Arctic through new bases, equipment and training in Russian territory in the Arctic and High North. While efforts must be made to avoid an Arctic arms race, Russia is beginning to assert itself beyond its defensive right to uphold its sovereignty.

In this security environment, the UK’s long-term freedom of navigation depends on growing its cold weather capability and Arctic interoperability with NATO allies. This includes an emphasis on bolstered submarine under-ice operations, Arctic training across the Army and Royal Marines, extreme cold weather requirements for equipment procurement and a robust Arctic concept of operations. The MoD faces difficult trade-offs due to post-Brexit budget constraints, weaker Sterling and competing policy priorities that include Tempest, F-35, two carrier groups, plus neglected operation and maintenance budgets. Gavin Williamson’s announcement on 30 September of plans to rotate 800 British commandos to Norway on an annual basis for the next 10 years is progress in the right direction. However, there is little doubt that improving British cold weather capability requires increased long-term MoD funding and a coherent, actionable “Arctic defence strategy” due to its close proximity to the UK and the fast-changing security situation. The UK must, therefore, work for the best but prepare for the worst on an environmental and a strategic level to maintain the policy goal of a “peaceful, stable and well-governed Arctic.”

Dan Fitter is Head of the Defence & Security Programme at Agora.

What future for intelligence cooperation between the UK and the EU post-Brexit?

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Common and borderless threats require strong intelligence cooperation and joint operations between European states to minimise risks. It is essential that the UK and the EU develop a new security partnership which reflects the depth of their current collaboration.

Europe is currently facing growing borderless threats; terrorism, violent extremism, nuclear weapons, misinformation, and cyberattacks to name but a few. While intelligence is at the heart of national sovereignty, the answer to those threats can only have a positive outcome with an increasing and durable intelligence cooperation, data sharing and joint operations among European countries. Security and defence collaboration has become a source of leverage for several prominent decision-makers and a cause for concern in the Brexit talks. In her speech at the Munich Security Conference in February 2018, Theresa May stressed the need to maintain and strengthen security cooperation with European countries. Andrew Parker, gave the first-ever public speech of an MI5 Director outside of the UK in Berlin, emphasising the importance of the vital intelligence partnerships the UK has bilaterally and within European institutions. Although neither the UK nor the EU is willing to compromise the safety of their citizens and institutions, intelligence cooperation is being exploited by British leaders as a bargaining chip to minimise post-Brexit losses and by the EU as a threat.

The main reason for intelligence cooperation is pragmatic. However, such collaboration is highly dependent on common threat perception, shared interests and trust. States, therefore, tend to prefer collaborating bilaterally instead of multilateral settings where there are higher risks of data misuse, breaches of confidentiality to third parties and reputational damage. In the case of the UK, bilateral partnerships will not be affected by Brexit. Trust with European partners will not cease following Brexit as it has been proven over years of mutual collaboration. Furthermore, those partnerships take place outside of the European institutions, so it will not be negatively influenced by any deal outcomes.

At a European level however, the UK will most likely be forced to withdraw from European intelligence institutions after Brexit. While the necessity of European intelligence cooperation is certainly not called into question since it addresses common threats and shared interests, the access to key data and strategic intelligence platforms will be diminished. The main European intelligence sharing agencies or systems affected are Europol’s platform for criminal intelligence sharing and police cooperation, Intcen, the European intelligence entity providing analytical assessment on current threats and the Schengen Information System II (SIS), which allows European countries to include and check live alerts on missing individuals, suspects as well as goods. Additionally, the UK will be restricted in its ability to access the Passenger Name Record Directive (PNR), the system to better detect and follow criminals and terrorists travelling in the EU.

Theresa May, supported by Andrew Parker and the Heads of the foreign intelligence agencies of Germany and France among others, promotes the indispensable collaboration among European agencies. She also declared that a security alliance between the UK and the EU was “fully achievable.” Nevertheless, no such partnership illustrating the depth of UK-EU relations currently exists between the EU and a third country. Theresa May is right to defend the necessity of a strong alliance with the UK along with her affirmation of the importance of British intelligence. Michel Barnier, the EU chief Brexit negotiator, declared in June 2018 that the UK decided to leave the European “ecosystem” and could only expect to be treated as a third country. Nonetheless, the UK undeniably has substantial assets in the domain of intelligence. Firstly, it is one of the main participants, providing crucial data and resources to Europol, Intcen and SIS as well as further European security programmes such as the European Arrest Warrant or Galileo. The UK is also a close partner to the US, which provides significant intelligence and know-how in the domain of security worldwide. Lastly, the UK is part of the Five Eyes, which is the intelligence sharing arrangement of five leaders in the global intelligence community: the USA, Canada, New Zealand and Australia.

The UK possesses strong bargaining chips to conceive a potential special intelligence relationship with the EU. Yet, British decision-makers also need to be more realistic and reduce their red lines, particularly regarding the European Court of Justice, which should be recognised as the institution overseeing joint operations and resolving legal disputes with the EU. If no agreement on security collaboration is found or if the UK is seriously limited through the new alliance, the EU will lose a major source of intelligence and the security situation of both sides will end up worse off. Political realism and pragmatism must prevail to ensure the safety of European citizens.

Marine Paclet works in public affairs in London and holds a Master degree in Public Policy.

Can we make Brexit work for the environment?

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Michael Gove’s Environmental Principles and Governance after EU Exit consultation document should be used as an opportunity to set up binding environmental standards.

Climate change will affect all of us: rising temperatures, poor air quality and unpredictable weather do not distinguish. When announcing a consultation on the contents of the new Environmental Principles and Governance Bill, which shall lead to the creation of a new, world-leading, statutory and independent environmental watchdog, environment secretary Michael Gove has stated that ‘we will discuss with the devolved administrations the possibility of shared environmental principles and whether they wish to be covered by the new body. Alternatively, they may wish to create their own national arrangements’. Now that the UK is leaving the EU, Scotland, Wales and Northern Ireland will be autonomous on this subject and differences among their regulatory frameworks may occur.

As this issue that affects all British citizens equally, whether in Glasgow or Portsmouth, the UK government together with devolved administrations should seize the opportunity to ensure all regions of the UK are held to the same minimum environmental standards. To do so effectively, it should establish a watchdog holding all governments accountable over delivery of and compliance with environmental law.

The current consultation instead would concern and affect environmental governance in England only, although the government is also exploring with national administrations whether they want to follow a similar approach. If disparities among regions’ environmental policies are permitted, regions which have less stringent regulations will hurt people from across the country. Air, water and earth are shared commodities.

In addition, in his March speech announcing ‘Green Brexit: a new era for farming, fishing and the environment’, Gove kept labelling people and mentioning differences between Leavers and Remainers, as if environmental issues affect these groups differently. When speaking about the environment, the Environment Secretary should rather abandon this referendum rhetoric, as this may actually detract him from his greater goals: strengthening environmental protection and establishing an effective environmental watchdog for the UK.

In fact, the majority of UK citizens does believe we need to do more to tackle climate change. A poll conducted by ComRes in 2017 found that 69 per cent of people polled in Scotland, 67 per cent in Wales and 63 per cent in England believe that climate change is a reality Moreover, 80 percent of respondents considered harm to wildlife and nature as a key concern. Accordingly, protecting the environment shall transcend the shallow ‘Leave/Remain’ boxes.

Whether a Leave or Remain voter, Scottish or Cornish, all British citizens deserve an enforced minimum of environmental standards. The fight to save the environment is bigger than Brexit, and tribal labels should remain outside of the conversation.

Roz KennyBirch (22) is a Communications Officer at Local Partnerships, living in London.