By Bella Sankey
Last week, my organisation, Detention Action, held the government to account and required it to comply with the law. In a high profile case, the Court of Appeal ordered the home secretary not to deport any individual who had been denied access to a working mobile phone for five working days prior to a deportation flight to Jamaica. The government initially sought to deport at least 50 people, but as a result of the court order, removed only 17.
The court required the Home Office to comply with its own written policy on removals and upheld the ancient English right of access to justice. We produced evidence that there had been no O2 phone signal in the Heathrow detention centres for weeks leading up to our challenge. We know from the material the government was forced to disclose that despite being aware of this problem since mid-January, no action was taken to offer alternative sim cards until we filed our case. Even then only a handful of them were handed out and many booked onto the Jamaica flight were not offered them.
Following the judgment, the government briefed its "molten fury" to the press. It sought to distract from its failure to uphold its own policy by returning to the tired old theme of wanting to curb judicial review. Dominic Cummings' shaky grasp on the constitution was in evidence. He was reported as saying that the case was "the perfect symbol of the state's dysfunction". Quite the reverse. The state's inability to provide basic phone signal for people detained for forcible removal is an example of state dysfunction. Judicial review is its democractic antidote.
Access to legal advice is a cornerstone of our democracy. Upheld by our courts throughout centuries, it sets Britain apart from despotic regimes around the world. Everyone in Britain, no matter their politics, should therefore be deeply alarmed by government threats to narrow the ambit of the rule of law. Make no mistake, this was always the government's intention, a bully boy tactic intended to intimate and silence those who stand up for justice.
None of this is academic. We know from the people we support in detention just how vital effective legal advice can be. For some it is quite literally a lifeline, such as those facing a real risk of death if removed or those who were so young when brought to the UK they have no connection with their birth country. One client, Tayjay Thomson, who was originally scheduled to be on the flight, did have working phone signal. He accessed crucial advice and was able to put evidence of his situation before a high court judge, successfully arguing that he had a meritorious claim to remain in the UK.
The attention our case has attracted and the campaigning of grassroots organisations around the Jamaica charter flight has sparked a welcome and important national debate about our detention and deportation policies.
As a result of a knee-jerk law passed in 2007, the Home Office automatically pursues deportation for anyone who is not formally a British citizen who receives a criminal sentence of more than 12 months. In practice this means thousands are marked for deportation each year.They include many who have been in the UK since childhood, people with no connection to the country they are due to be returned to, those with many children and other caring responsibilities, those with relatively minor or one-off offences, and those who are completely rehabilitated. In the case of last week's Jamaica flight, the dragnet also included victims of modern day slavery, trafficking and other criminal activity.
The government's response to the public debate has been repeated claims that all those on the flight are the most serious offenders, smearing them as murderers and rapists. This not only places those removed in grave danger, it's a woefully simplistic and inadequate response to a complex situation and misleads the public as to how our laws work.
There are a small minority of individuals who have committed heinous or persistent offences and may pose an ongoing risk to the public. No-one questions that deportation should remain a discretionary option for these most serious of offenders. Public protection must be paramount. But here too government has questions to answer. If someone has been in the UK since early childhood and is considered a public safety risk, is it ethically defensible to return them to a country which has neither the infrastructure nor monitoring mechanisms to ensure they do not reoffend?
In reality, the vast majority scheduled on the flight weren't persistent serious criminals. The stories vary, but the trend is ultimately the same. Young people make mistakes. Some caved to pressure, some were groomed into infamous county lines operations, and some made poor decisions that they deeply regret and have sought to put right. No-one is condoning criminal activity. But when a serving senior Cabinet minister admits to having regularly taken Class A drugs, why must those who have already served a prison sentence for supplying someone like him with those drugs be forever banished from their home and ripped from their children's lives? This is double punishment and a further punishment for the innocent British kids forcibly separated from a parent.
Last Wednesday, many British children woke up to a world in which they may never see their mum or dad again. Some reports suggest that teenage children are already experiencing suicidal thoughts due to losing a parent and we have heard from the partners of those still detained about their children's changed behaviour, including trauma, bed-wetting and night tremors. How can this be right, proportionate or British?
This is only the second charter flight to the Caribbean since the Windrush scandal broke in 2018. The government alleges that this issue is entirely separate to Windrush. But a leaked version of the as-yet-unpublished Windrush report recommends that deportation should become an exception not a norm.
This issue cannot be divorced from Windrush. Those targeted for deportation are the grandchildren and wider descendents of the Windrush Generation. They are in the UK because the British government invited our wider Commonwealth to come and help rebuild a post-war Britain, with the promise they could make it their home. But how can a place be home if you live in fear of immigration officers taking your son to immigration detention? Or if your grandchild is deported after committing a crime that would have landed a British citizen with a brief stay in prison – or even a glittering political career?
They're rarely championed by governments, but human rights and access to justice are our bedrock. These principles are powerful, universal and timeless. They were ours long before the Johnson government took office and they will outlive this administration. But we must be prepared to fight for them. And to fight for the rights of all those on our shores, whether they have a pink or blue passport or one of another colour entirely.
Bella Sankey is director of Detention Action.
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