‘Immigration detention in the U.K. is bound up with questions of race.' This is how Lewis Kett, a supervising solicitor in the Harrow Public Law Team, introduced his talk on strategic litigation to challenge structural racism on 18th October.
Lewis was speaking at a conference hosted by Birkbeck’s Centre for Race and Law, University of London, chaired by pioneering activist academics Nadine El-Enany and Sarah Keenan, the founders of the centre. Lewis focused on his team’s challenges to Home Office detention policies on segregation (solitary confinement), and to disregard torture perpetrated by non-state actors when assessing particular vulnerability in detention. In both cases, strategic litigation run by Lewis has forced the Home Office to retract or reform its policies.
Lewis also spoke more generally about immigration detention in the UK, noting that around 30,000 men and women are detained in the UK’s notorious detention centres every year, annually costing the British tax-payer approximately £30,000 per detainee. Lewis described the appalling conditions in detention and outlined how other members of his team have exposed the policy of paying detainees £1 an hour for basic work, which he described as amounting to slave labour. Lewis added that international corporations contracted to run the centres on the Home Office’s behalf such as G4S and Serco ‘do not look after the welfare of detainees, they are looking for a profit and so are constantly cutting corners’. Lewis also highlighted the fact that many detention centres were previously prisons, and that ‘centre staff still run them as if they still are’. Lewis referred the conference to the BBC Panorama exposeé on G4S officer abuse at Brook House for clear evidence of such barbarity, noting that his team are calling for an independent inquiry into the abuse of their client, exposed in the documentary itself.
Lewis shared the panel with Ioannis Kalpouzos, of the Global Legal Action Network; Muhammad Rabbani, of CAGE UK; Gracie-Mae Bradley from Liberty and Against Borders For Children; and Chai Patel, from the Joint Council on the Welfare of Immigrants (JCWI), who all offered fascinating and informative insights into the work of their organisations in combatting racism:
- The Global Legal Action Network is challenging Australia’s notorious off-shore detention system (in Nauru and Papua New Guinea) in the International Criminal Court. Criticising the court’s focus on only ‘spectacular’ crimes, Ioannis Kalpouzos argued strikingly that the Australian state’s behaviour amounts to a crime against humanity. The attack in question is the systematic and widespread use of unlawful imprisonment. Similarly, the deportation/removal of individuals with a right to ‘be present’, without any justification under international law, to areas where they will suffer violations of human rights, could also be considered a crime against humanity.
- Muhammad Rabbani of CAGE UK spoke about his recent litigation resulting from his refusal to hand over passwords to his devices at an airport when he was subjected to a ‘Schedule 7’ interrogation. Muhammad’s devices contained sensitive information about a Qatari client allegedly tortured in the US. Muhammad was clear that he would have been happy to share information about himself, but, he emphasised, his duty was to his client and he would happily do the same again. ‘I stand before you today as a convicted terrorist’ Rabbani told us. Muhammad spoke of how around 50,000 British citizens a year are subjected to ‘Schedule 7’ searches; ‘treated like criminals’. A police officer may subject an individual to such a search whether or not they are under suspicion. Disturbingly, Rabbani told us that he has found it hard in the past to find legal representation in strategic litigation on the basis that he has a ‘beard and the wrong colour of skin, the wrong kind of client.’
- Gracie-Mae Bradley of Liberty, and Against Borders for Children spoke of her work challenging the sharing of information between schools and the Home Office, the latter using the information for the purposes of immigration enforcement. Gracie-Mae urged careful strategic consideration before launching any litigation, as the Government can respond with even more draconian and inhumane policies than that which was challenged in court. ‘Strategic litigation is one tool among many,’ Gracie-May stressed, ‘but we need to use all weapons in our arsenal. We need to make sure we don’t just go round in a nice merry-go-round of strategic litigation.’
- Finally, Chai Patel of JCWI spoke about their work challenging the Government’s ‘right to rent’ scheme, which criminalises landlords who rent to those without a (state-sanctioned) right to live in the UK. Chai mentioned landlords have ‘eagerly’ admitted to JCWI that they will discriminate against potential tenants ‘on the basis of race and nationality’. Indeed evidence compiled by JCWI from areas where the scheme has already been rolled out reveals such discrimination in practice. Chai also reflected on the importance of truly strategic litigation, since even cases that are won can have negative consequences.
The conference provided a vital space for broad and candid discussions on the effectiveness of challenging structural racism in the courtroom. There was a widely held concern that careless or failed litigation can, perversely, strengthen and normalise such structures. For instance, picking on particular inconsistencies within a policy can amount to an implicit acceptance of the policy or paradigm as a whole. As Gracie-Mae asked, ‘how do we fight for a time limit on detention while keeping open the possibility of ending the practice outright?’
Notwithstanding these reservations, it was suggested, strategic litigation remains a vital tool in fighting the system from within, while simultaneously bringing attention to the issue. The panel differed to some extent on how to effectively fight structural racism in the UK, but there was unanimous agreement that such racism exists, and that it needs to be tackled. As Muhammad Rabbani concluded, ‘we can make a change with two values: compassion and courage.’
Duncan Lewis Public Law solicitors
The Duncan Lewis Public Law Department has been recommended by Legal 500 2017, with particular praise for their work successfully challenging policies under which vulnerable individuals are detained in immigration detention centres. By way of judicial review, the Public Law Department challenges decisions made by public bodies which would otherwise be non-appealable. These can be central or local government, or other organisations carrying out public functions.
Our Public Law solicitors conduct all stages of such matters from initial pre-action correspondence to filing, conducting and settling claims and costs negotiations and litigation. Duncan Lewis solicitors carry out both publicly and privately funded work.