Guest post by John Hopgood on behalf of Bail for Immigration Detainees (BID). BID is an independent charity that exists to challenge immigration detention in the UK. It works with asylum seekers and migrants, in both prisons and removal centres, to help secure their release. BID not only provides legal advice, information and representation to migrants, but also invests in research, policy, advocacy and strategic litigation. Follow them on Twitter @BIDdetention. This is the seventh instalment of Border Criminologies’ themed series on Current Legal Issues on Migration organised by Ana Aliverti and Celia Rooney.​

Three years ago, Bail for Immigration Detainees (BID) published a report called Fractured Childhoods, which looked in detail at the impact of separation caused by detention and deportation. It began by relating the story of Beth and Daniel, two children whose mother had been detained and was facing deportation. Daniel is disabled and, after his mother was detained, he was made subject to a child protection plan, which was drawn up by the local council in recognition of his vulnerability. The assessment stated that, “Daniel has found it very difficult being separated from his mother, he is keen for her to return home and often states that she is 'coming home today' when she is not and becomes upset when he realises this is not the case”.

The impact of those decisions on the individuals concerned are, as always, best explained by those directly affected:

'He asks the same questions every night “where is mum gone? where is mum gone?” And [my partner] said he explained to him, and he put him down [to bed], and then the next night it’s the same thing.'  Simone, talking about how her three-year old son coped with her detention.

'I think Daniel is angry and behaving badly because he is confused and misses his mum so much. He’s always asking when is my mum coming home. He often gets upset and I cannot comfort him. He just wants his mum.'  Daniel's older sister Beth talking about his behavioural problems.

'The reason I am writing this letter is to let you know how much I miss my mum, and at times I just sit and cry' Hana, aged 8, writing to an immigration judge.

Last year the UK detained more than 32,000 people under immigration powers. In the last 12 months alone, BID provided legal advice and assistance to 137 parents who had been separated from their young children by immigration detention. Though numbers alone can never convey the devastating impact that indefinite detention has, it is worth noting that BID comes into contact with just 1 in 10 detainees – the separated families that BID helps may just be the tip of the iceberg.

Fighting an immigration case – with the power of the state against you – has never been simple. Yet successive government reforms have been directed at making that task even more challenging. The right to a family and private life is enshrined within the European Convention of Human Rights under Article 8. But UK governments have sought – with some success – to erode that right by imposing increasingly harsh – `hostile’, in the words of then Home Secretary Theresa May – conditions on immigrants. The removal of publicly-funded legal aid for deportation cases in 2012 under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act has significantly affected foreign nationals fighting to maintain their family and private life in the UK.

Last autumn, BID produced a piece of research, Rough Justice, which examined the cases of 102 parents who had been separated from their children by detention while facing deportation. These were all people who, prior to the LASPO Act, would have been able to access legal aid.  However, in the wake of LASPO few were able to receive any legal advice or representation at all – just 28 (barely a quarter) were able to afford some limited, private legal representation.

Of the 102 parents, 22 (one in five) were deported from the UK without their children. Just six of those parents had legal representation while fighting for the right to remain with their families. Two parents were deported from the UK, wrenched away from their children, because of convictions for false document offences. More than half of the children who had their parents taken from them are British citizens.

During our work and research, we observed a dramatic shift from considering whether deportation would comply with our notion of what is fair and just, to a test that requires that deportation simply not be 'excessively cruel'. We experienced cases in which the Home Office argues that a parent-child bond won't be harmed by deportation because communication via Skype is possible. One client was told by the Home Office that deportation wouldn't breach Article 8 because his family life would be maintained if his British wife and 3 children moved with him to Afghanistan.  Yet, such an argument continues to be contrary to official Foreign & Commonwealth Office advice.

The ace in the government's hand, however, is access to justice. Much of the legal aid that was previously available for immigration cases has been cut. This means that few families facing separation because of deportation are able to access any legal advice or representation that would allow them to put forward their case. Even if legal representation is secured, then the Home Office will often ‘certify’ human rights claims. This is the government's euphemistic term for telling those facing deportation that, before there is a chance for a court to decide on their human rights claim, the Home Office has to make a decision on whether their human rights will be breached by being removed from the UK immediately and having their appeal heard from the country to which they have been deported. Amplifying the problem, the Immigration Act 2016 has introduced a ‘deport first, appeal later’ regime, meaning there is no appeal to that decision other than by applying for judicial review – and no assistance to overcome the difficulties of mounting an appeal against deportation from a foreign country with no legal advice or support.

BID's Article 8 & Deportation Advice Project was set up in 2014 to try to ensure that our clients in detention have some access to legal advice and representation on deportation. It helps parents challenge their deportation on family life grounds, and has, since its beginning, been overwhelmed by the demand for assistance and advice. Our Separated Families project has been running since 2010, assisting parents to get released from detention. In both projects we routinely witness the damage done to children (and, indeed, parents) by forced separation.

In no other setting would the separation of families by the state for reasons of administrative convenience occur without outrage. Yet, this suffering will continue to be faced by more children and families as the government's assault on access to justice for foreign nationals continues. Up to 1 in 4 people in detention never received legal representation, according to BID’s research, and as few as 1 in 10 people have access to a legal aid solicitor. It is therefore more difficult than ever for vulnerable families to put forward their case.

Removing legal aid for deportation cases involving families has placed an almost insurmountable hurdle in front of many whose greatest wish is simply to be allowed to live with their families. Successive governments may have found removing judicial safeguards and legal aid support straightforward and populist. But the irreversible harm caused by those changes cannot be so easily undone.

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How to cite this blog post (Harvard style)

Hopgood, J. (2017) Fractured Childhoods: The Separation of Families by Immigration Detention. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/02/fractured (Accessed [date]).