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Detention of pregnant women – Lords to the rescue!

Gabrielle Bourke, Policy Advisor
24 August, 2016

Detention of pregnant women – Lords to the rescue!

PA is a Congolese woman who sought asylum in the UK. She was arrested in 2014 when she was five months pregnant. She was held for 10 hours at Cardiff Bay police station and then transported to Yarl’s Wood Detention Centre in Bedfordshire in an eight-hour journey. She was due to have her 20-week scan but was not given this check during the month she was held in detention.

Last October, the High Court ruled PA was unlawfully detained and the Home Office offered her a formal apology and compensation. During the case, the RCM provided an expert opinion on the impact of detention on the health and wellbeing of pregnant women. We said:

Women who are pregnant are uniquely vulnerable in so far that they (and their babies) will always have specific, and sometimes serious healthcare needs which are time critical and may impact on health outcomes… Given these risks, and the fact that pregnant women are very rarely removed by means of immigration detention, there is simply no justification for detaining pregnant women in immigration facilities.

The RCM has long maintained that keeping a pregnant woman in detention centres is detrimental to her health and that of her baby, and so have over 300 other organisations.  All midwifery services have a commitment to ensuring that women in detention receive good care.  Midwives working in Yarl’s Wood have done their best, and we are proud to highlight the volunteering of two midwives in Yarl’s Wood, nominated for our President’s Volunteer award at the RCM Awards 2016.

But we know from PA’s case that despite the best efforts of midwives, women detained in centres suffer because of the inadequacy of the procedures and protocols that are meant to protect them.  We also know from working with the campaigning charity Medical Justice that the Home Office wasn’t following its own guidance to protect pregnant women and couldn’t even say how many pregnant women were being detained. Medical Justice carried out research in 2013 which showed that while the primary purpose of detention is removal, only around 5% of pregnant women were removed from the UK. There was evidence that the level of care given to women was falling far short of NHS equivalence and the National Institute for Health and Care Excellence (NICE) standards.

Then in early March 2015 Channel 4 showed a documentary of undercover footage taken in Yarl’s Wood, a detention centre holding 400 detainees, which included details of distressing treatment of pregnant women held at the centre. The same month the New Statesman carried an article on the same subject.

The All-Party Parliamentary Groups on Refugees and Migration began an inquiry into detention. This cross-party group of MPs, including Richard Fuller MP (from Bedfordshire, where Yarl’s Wood is located) heard compelling evidence from the Royal College of GPs, Medical Justice, the BMA and HM Inspectorate of Prisons. They concluded that the ‘UK uses detention disproportionately and inappropriately’.  Only weeks after the Channel 4 broadcast, the APPG stated their belief that pregnant women should not be detained at all, and we published a joint letter to the Guardian urging the government to listen to this opinion.

This view was further bolstered when Stephen Shaw – a former Prisons and Probation Ombudsman for England - completed his independent review into the welfare of vulnerable people in detention centres in January 2016. He was very clear that from what he had seen and heard from detainees and from healthcare experts that the scandal of detaining pregnant women must end.

The Immigration Bill working its way through Parliament in early 2016 presented an opportunity to end detention of pregnant women once and for all, as it contained provisions relating to detention which issues around pregnancy could be ‘tacked’ on. (Others too saw an opportunity in the Immigration Bill. Lord Dubs, himself a child refugee from the Second World War, successfully used the passage of the bill to make the government accept child refugees from the conflict in Syria.)

A coalition of groups brought together by Medial Justice, Bhatt Murphy Solicitors and Women for Refugee Women at an event in Parliament in March were hopeful that finally enough evidence and argument was in place. Then on 18 April, the government released a statement outlining how they would use the Immigration Bill to increase the protections afforded to pregnant women in detention, including its intention to place a 72-hour time limit on detention.

The RCM welcomed this announcement. It looked like much of what makes detention so harmful – unlimited length, no notice, inadequate transport – was to end. And when Lady Lister’s amendment to the Immigration Bill in the House of Lords to end the detention of pregnant women was passed on 12 April it looked as though the ultimate goal of ending detention of pregnant women for good was within sight.

Peers used the testimony and expertise of many organisations to make their winning arguments:              

'If we extrapolate from that and from those women talking about it to women detained for what seem to be not very good reasons, it is really important that we have an absolute exclusion on pregnant women being detained. I hope that people will look at the evidence given by the Royal College of Midwives. That made it absolutely clear that unborn children may well be traumatised by the experience. I do not believe that we in this House would wish to take responsibility for that.' Baroness Neuberger - access full article here

The government was defeated, and now the Commons would be forced to look at the issue again.

What followed is a process colloquially known as ‘ping pong’. As the government attempts to pass laws, it must have the support of both the Commons and the Lords. If one chamber agrees to something, the other must too for it to become law, and so the issue goes back and forth between the houses until a settlement is reached. The Lords cannot stop the government from passing something they promised in their manifesto; this is to ensure that what people voted for in an election is faithfully delivered. But the Lords can press the government on other issues, especially civil liberties and human rights, as many peers have particular expertise in this area and speak up forcefully for many marginalised people. Like detained pregnant women, for instance.

The government argued that ending the detention of pregnant women was not in the ’national interest’, and so they overturned Lady Lister’s amendment on 26 April. Whilst this was greatly disappointing, the focus shifted to arguments over:

  • How decisions to detain would be made – who gets to choose? What kind of oversight would that decision have?
  • How women are transported – how much notice would they get? How long would they be forced to travel in the back of vans?
  • How long to detain – What reasons could justify detaining her for longer than 72 hrs?

The government used their majority in the Commons to pass amendments to the Immigration Bill on these issues, while  Lady Lister and Lord Ramsbotham continued to table amendments in the Lords to beef up these safeguards, and press government ministers for assurances.  Organisations such as ourselves keep up our lobbying of peers and MPs, and the Immigration Law Practitioners’ Association was outstanding in keeping us all up to date on the Bill’s progress day-by-day (and in the case of tabling amendments, hour-by-hour!)

While we haven’t been able to end detention for good, we have made significant progress.

Under the revised legislation pregnant women can only be detained in very exceptional circumstances and the detention can only be for a maximum of 72 hours.

Those exercising the power to detain must also have regard to a women’s welfare before deciding to detain. For example, if a pregnant woman arrives at a remote port and there are exceptional circumstances to detain but no appropriate place to detain her, then, being compelled to have regard to the woman’s welfare would be a determining factor not to detain her.

The Ministers has also clarified that, like all persons subject to detention, pregnant women are only detained for the purpose of removal and as the detention of pregnant women is subject to a time limit, then detention will necessarily be short.  Some cases will have exceptional circumstances, but by definition not many.  The clause allows for the detention of pregnant women only when they can be quickly removed or when they can be quickly removed and exceptional circumstances pertain.

Conclusion

So what are the learning points that come out of this campaign?

  • Tipping points matter. What began as a small campaign by some dedicated charities was amplified by the  quick succession of the All-Party Group report, the Channel 4 documentary, the Shaw Inquiry, and the case of PA.
  • Persistence matters more. It has taken years for this issue to be taken up by the media and discussed in Parliament. And there is still a way to go, as the guidance to follow after this legislation will be crucial to improving the health and wellbeing of pregnant women who are detained.
  • Build a coalition. Medical Justice’s research and their volunteers, not to mention the ex-detainees they continue to advocate for, brought the real-life stories. ILPA brought their detailed legislative expertise, Channel 4 saw the public interest in the experiences of these women, and the RCM brought clinical expertise. Other organisations which have campaigned on this issue include Freedom from Torture, the Children’s Society, the Helen Bamber FoundationDetention ActionAmnesty International, the Refugee CouncilRefugee ActionMigrants’ Rights NetworkHuman Trafficking FoundationLiberty, and many immigration law expertise  It all added up.
  • Help members and peers to help us. Politicians get a bad rap, and in the midst of the EU referendum debate and hardening attitudes towards immigration, taking on this issue takes courage. We are so thankful to parliamentarians for listening to our evidence, and speaking up for some of the most vulnerable people in our country who are often voiceless. 
     

August 2016 update

Following on from the legislation, the Home Office is developing a new Detention Services Order. This document outlines the detail about detention of pregnant women – how they must be cared for and the correct protocols for staff working in detention to follow. The RCM will continue to monitor the Home Office’s approach to this issue and keep the wellbeing of detained pregnant women high on our agenda.

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