Facts & Figures

Asylum seekers and migrants in the UK can be detained by immigration officers exercising powers conferred on the Home Secretary under a number of different Immigration Acts[1].

These powers have been developed via non-statutory documents such as the UK Border Agency Enforcement Instructions and Guidance[2]. The Immigration Act 1971 provides the majority of the statutory powers of detention for those subject to immigration control[3], although these provisions have been amended and added to by subsequent legislation. The Home Office has recently extended the circumstances under which detention may be used to facilitate faster decision-making on some asylum claims. In other words, detention power can now be used for administrative purposes. Prior to this development detention policy was framed in terms of use as a last resort where failure to detain might have serious consequences.

There is no statutory limit to the length of immigration detention. The decision to detain is made by an individual immigration officer and is not automatically subject to independent review at any stage. Immigration detention is subject to fewer checks than detention within the criminal justice system. Legislation providing for automatic bail hearings was contained in Part III of the Immigration and Asylum Act 1999 but never implemented, and has since been repealed by the Nationality, Immigration and Asylum Act 2002. Many detainees have no legal representation and therefore cannot access elective bail procedures. This means that in many cases the Home Office is never required to justify its decision to deprive an individual of their liberty.

However, both domestic case law (which now incorporates the European Convention on Human Rights (ECHR) in the Human Rights Act 1998) and case law of the European Court of Human Rights set limits to the detention powers of the state. Under Article 5 ECHR detention must be proportionate to the objective (i.e. removal), and alternatives to detention such as the use of sureties, reporting restrictions, and electronic monitoring must have been properly considered for detention to be lawful.

In the 1998 White Paper "Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum" the Government states that immigration detention "would most usually be appropriate:to effect removal; initially to establish a person's identity or basis of claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release" [1].

The current government position on immigration detention in the UK is that "detention is used sparingly and for the shortest period necessary"[2]. However, in BID's experience this is not often the case. Instructions to immigration officers to this effect carry no practical compulsion and have failed to prevent the Home Office from employing administrative detention for prolonged periods during the resolution of a case. In BID"s experience, the use of detention is not restricted to those shortly to be removed.

The use of immigration detention is increasing and the government considers it to be central to asylum and immigration policy. The Five Year Strategy for asylum and immigration published by the Home Office on 7th February 2005[3] set out plans to "… move towards the point where it becomes the norm that those who fail can be detained". On 19th May 2008 the Home Office announced plans for expansion of the immigration detention estate by up to sixty percent to enable the removal of more detainees and at a faster rate.[4] A further 364 male beds have opened at Harmondsworth IRC in 2010, while Oakington IRC closed in the autumn of 2010. Other expansion plans are currently on hold following the Comprehensive Spending Review in October 2010.

Footnotes

[1] The Immigration Act 1971; the Immigration and Asylum Act 1999; Nationality, Immigration and Asylum Act 2002; UK Borders Act 2007; Citizenship Immigration and Borders Act.

[2] Available at www.bia.homeoffice.gov.uk/policyandlaw/guidance/enforcement/

[3]Burnham, E., (2003), "Challenging Immigration Detention: a best practice guide". Immigration Law Practitioners" Association/Bail for Immigration Detainees, London.

[4] Cited in UK Border Agency "Enforcement Instructions and Guidance", Chapter 55 "Detention and Temporary Release", p: 2. Available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/detentionandremovals/chapter55?view=Binary

[5] This phrase crops up repeatedly in government responses and statement, e.g. Government response to House of Lords European Union Committee report "Illegal Migrants: proposals for a common EU returns policy" (32nd Report, HL Paper 166, published 9 May 2006. Response available at http://www.parliament.uk/documents/upload/060804GovResrRetsRp.pdf; and "Home Office Response To HMCIP Report On The Unannounced Follow-Up Inspection Of Dover Immigration Removal Centre", 16 December 2005. Available at http://press.homeoffice.gov.uk/press-releases/home-office-response-dover-irc

[6] Home Office, "Controlling our borders: making migration work for Britain _ Five Year Strategy for asylum and immigration"', 7 February 2005, available at http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.htm

[7] UK Border Agency, (2008), "Large Scale Expansion of Britain"s detention estate". Available at www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/largescaleexpansionofbritainsdet