1. Who can be detained and under what powers?
Anyone subject to immigration control in the UK can be detained by immigration officers exercising powers conferred on the Secretary of State under a number of different Immigration Acts. The Immigration Act 1971 provides the majority of the statutory powers of detention for those subject to immigration control, although these provisions have been amended and added to by subsequent legislation.
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. Many detainees have no legal representation and therefore do not 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 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 (e.g. removal), and alternatives to detention such as sureties and reporting restrictions must have been properly considered for detention to be lawful.
The government position on immigration detention in the UK is that “detention is used sparingly and for the shortest period necessary”. However, in BID’s experience this is normally not 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 following three broad groups can be detained under immigration powers
- People subject to immigration control who can be detained pending examination and a decision on whether to grant, cancel, or refuse leave to enter.
- People subject to immigration control who have entered the UK illegally or overstayed a visa, have been refused leave to enter, have failed to observe conditions attached to leave to enter, who have used deception in seeking leave to remain, can be detained pending a decision on whether to issue removal directions and pending administrative removal. People reasonably suspected of falling within these categories can also be detained.
- Foreign nationals who have served a criminal sentence of 12 months or longer or who are the subject of a criminal court recommendation for deportation can be detained post-sentence pending deportation.
People may be detained when attending interviews with the Home Office or at a police station when they attend to comply with weekly or monthly reporting requirements. Others may be detained after they are discovered to be living or working in the UK without permission. Time-served foreign national prisoners may continue to be held in prison under Immigration Act powers or be transferred to a removal centre after completing their sentence and prior to their deportation. There are some overlaps between these categories.
2. Where are the centres and who runs them?
The Nationality, Immigration and Asylum Act (2002) formally changed the name of detention centres to Immigration Removal Centres (IRCs). Ministers stated at the time that the function of these centres would remain the same and the criteria for detention would not change. There are seven IRCs in the UK. The centres are:
- Dungavel (Scotland)
- Heathrow Removal Centre (merger of Colnbrook and Harmondsworth)
- Brook House (near Gatwick airport)
- Tinsley House (near Gatwick airport)
- Yarl's Wood (Bedfordshire)
- Morton Hall
There are also 'short term holding facilities'
The only dedicated centre for women is Yarl’s Wood. Since the closure of a purpose built centre for housing families with children (The Cedars) in 2016, children in families can now be held in Tinsley House.
3. How long are people detained for? Is there a time limit?
There is no maximum period of detention. In BID's experience, in many cases the Home Office has used administrative detention for prolonged periods of time. BID is concerned that these periods of detention are excessive and are a direct result of the ease with which administrative immigration detention can be exercised by the detaining authorities. However, the recent Immigration Act 2016 provides for automatic bail hearings for some immigration detainees after four months in detention for the first time. Just under 30,000 people are detained every year and 3% of them are detained for more than six months.
Figures for the length of detention of adult detainees held under Immigration Act powers are provided by the Home Office on a quarterly basis. However, this does not take into account cumulative lengths of detention, when individuals are released and re-detained.
4. Have detainees done something wrong? Why are some people detained and not others?
The Home Office does not detain people because they have committed a criminal offence, though there are people in immigration removal centres who are being held under immigration powers having served a criminal sentence. The main reasons the Home Office gives for detention are that:
- they believe a person will abscond if released
- they need to establish a person's identity
- the person is shortly to be removed from the UK (their removal is `imminent’).
Until recently asylum seekers of any nationality could also be detained for their asylum claim to be heard under an accelerated legal process called the Detained Fast Track. However, this process was ruled unlawful. Currently the cases of asylum seekers who are detained are meant to be prioritised by the Home Office’s Detained Asylum Casework team although the length of detention for asylum seekers can vary and the procedures are not as ‘accelerated’ as they were under the fast-track process.
5. Are there any groups of asylum seekers or foreign nationals who can't be detained? What about children and vulnerable adults?
Any asylum seeker or migrant can be detained on the authority of an immigration officer under Immigration Act powers. The Home Office’s Adults at Risk Statutory Guidance states that if “detention is likely to have a deleterious effect on the individual, they should not be detained unless there are public interest concerns which outweigh any risk identified.” BID's experience is that vulnerable people are routinely detained, often without access to appropriate or adequate medical help. BID regularly encounters people held in detention in spite of having evidence of being tortured, people with severe mental and physical health problems, and survivors of rape. Pregnant women can only be detained in exceptional circumstances and for up to 72 hours.
Children can only be detained in a family group under the Home Office’s Family Returns Policy, and only for up to 72 hours. Government policy does allow for families to be separated by detention, for example if they intend to remove or deport one parent. In some cases this leads to children being taken into the care of social services.
6. How are immigration detainees treated?
BID has found that detention has many very adverse effects on people’s lives. Significant numbers of detainees we represent have serious medical and psychological needs that do not appear to be adequately met in IRCs. A significant number of detainees have reported to BID that they have suffered ill-treatment in detention at the hands of escort companies or detaining officers.
7. What is bail? How do you get it?
Bail is a legal procedure available to any person who has been detained by the Home Office once they have been in the UK for seven days.
There are two ways to get released on bail from immigration detention:
- Secretary of State Bail (Home Office bail)
- Bail from an immigration judge (First-tier Tribunal bail)
A detainee can apply for Home Office bail to the Home Office by completing a Form 401. Detainees should be provided with a copy of this form by staff at Immigration Removal Centres or by the Home Office if detained in a prison. Home Office bail is considered on the papers only by Home Office decision makers; there is no bail hearing before an immigration judge. If successful the Home Office will usually release the detainee with conditions, such as a requirement to live at a particular address and to report to the Home Office on a particular date.
First-tier Tribunal bail requires an application to a First-tier Tribunal hearing centre for release. When a detainee makes an application for bail they are brought to an immigration court (the First-tier Tribunal, Immigration & Asylum Chamber) where a First-tier Tribunal judge (also known as an immigration judge) makes a decision on whether detention should be maintained. The case should be presented by a legal representative and opposed by a Home Office Presenting Officer. However, many detainees who cannot find a lawyer end up representing themselves in bail hearings. If bail is refused, the detainee has the right to apply for bail again after 28 days unless their circumstances have changed, in which case they can apply sooner. If bail is granted there will normally be certain conditions attached. For example, the individual and their financial supporters (formerly known as sureties)(if they have any) may have to offer an amount of money considered proportionate to their financial means, an amount that would be surrendered if the detainee absconded. The immigration judge sometimes requires the detainee to live at a particular address, and report to a reporting centre or a police station at regular intervals. For more information see the BID handbook `How to Get out of Detention’.
8. Is a successful bail application the only way of getting out of detention?
Legal representatives can apply to the High Court for a judicial review of the government’s decision to detain, if they think that the decision to detain or to maintain detention was unlawful. This can result in the person being released on bail. For more information on these remedies see the BID handbook `How to Get out of Detention’.
9. What happens to detainees once they are released on bail?
If someone is granted permission to live in the UK (‘leave to remain’ or ‘leave to enter’) they will be released from detention and and/or they will no longer be on bail.
All asylum seekers and foreign nationals who are released from immigration detention are on bail and they may be supported through the Home Office’s Asylum Support system. They are subject to the same rules and procedures as other asylum seekers and immigrants who have not been previously detained but who are also on bail pending a final decision on their application for asylum or permission to remain in the UK. People who have not previously applied for asylum and who are facing deportation from the UK may only be allowed to apply for ‘exceptional circumstances accommodation’ and support. Such accommodation and support is in fact extremely difficult to obtain and it is only rarely provided by the Home Office.
Bail is rarely granted for an indefinite period of time. If Home Office bail has been granted, bail and conditions of bail can be varied at any time by the Home Office. When making an order for First-tier Tribunal bail, the immigration judge can either decide that the First-tier Tribunal will be responsible for the future management of bail and bail conditions; or transfer management of bail to the Home Office. The detainee can also consent to the transfer of management of bail to the Home Office when they complete their application form for First-tier Tribunal bail.
10. How many people abscond if they are not detained?
The use of detention is often justified on the basis that unsuccessful asylum seekers and foreign nationals will otherwise abscond, deliberately lose contact with the authorities, and "go underground". However, the Home Office provided evidence to the Parliamentary Inquiry into Immigration Detention stating that 95% of people complied with their conditions.
11. Aren’t legal representatives supposed to make bail applications? Why does BID need to exist?
Public funding was introduced for bail applications in January 2000. However many legal advisers prefer to concentrate their efforts on the client’s main case once public funding has been agreed. Because a decision to take on a case is subject to a strict merits test, many detainees remain unrepresented through their appeal process, and by extension, without assistance with applying for bail. As a result the demand for our services is very high. In the last twelve months BID has provided support to 5,840 people.
12. How much does detention cost?
According to Home Office figures released in February 2018, it costs £85.97 per day to keep an individual in detention. During the period 2016-2017, as stated in the Home Office Annual Report, detention cost the government £118 million. These costs don’t include the administrative costs, the cost of opposing bail and other legal costs which could amount to many thousands of pounds per detainee, nor do they include the costs the Home Office has paid out in compensation for unlawful detention (£1.8 million in the period 2016-2017).
13. Can people be detained in prisons under immigration powers?
Yes, although the Prison Service Instruction 52/2011 `Immigration, Repatriation and Removal Services’ (2011) issued by the National Offender Management Service (NOMS)/ HM Prison Service, states: “Immigration detainees should only remain or be moved into prison establishments when they present specific risk factors that indicate they pose a serious risk of harm to the public or to the good order of an Immigration Removal Centre, including the safety of staff and other detainees, which cannot be managed within the regime applied in Immigration Removal Centres. This regime derives from Detention Centre Rules and provides greater freedom of movement and less supervision than prisons, as well as access to the internet and mobile telephones” (NOMS, 2011: para 2.68). BID’s experience is that foreign national prisoners are routinely detained in the prison in which they have served their custodial sentence at the end of their sentence.
14. How many people are detained in prisons under immigration powers?
According to Home Office figures for 2017, there were 1,671 people held under immigration powers in prisons in the UK.
15. Are people detained in prisons treated like serving prisoners?
The Prison Service Instruction 52/2011 `Immigration, Repatriation and Removal Services’ (2011) issued by the National Offender Management Service (NOMS)/ HM Prison Service, states: “2.65 Where foreign national prisoners have reached the end of their custodial sentence but continue to be held under immigration powers there is no automatic requirement to return them to a local prison, although they should be treated as unconvicted prisoners (see PSO 4600 Unconvicted, Unsentenced and Civil Prisoners)”. However, again, in BID’s experience, they continue to be held as if they were prisoners serving criminal sentences.
The PSI further states: “2.66 Persons detained only under immigration powers must be treated as an unconvicted prisoner with the same status and privileges (see PSO 4600). Where a prisoner is held beyond the end of his custodial sentence in a prison which does not normally hold unconvicted prisoners, consideration may be given to enable the prisoner to remain where (s)he is. The prisoner must be made aware that (s)he will be held with convicted prisoners and his/her agreement must be recorded on the form at Annex C. Where an immigration detainee opts to be held with convicted prisoners, all reasonable efforts must be made to accommodate the privileges to which unconvicted prisoners are entitled. However, it remains a matter for the Governor to determine whether or not it is appropriate for the prisoner to remain in convicted conditions.”
While Home Office managers routinely state that detainees are held in the prison estate under remand conditions, it appears that little has been done by these same managers to check whether or not this is in fact the case. One only has to visit prisons where immigration detainees are held, as BID Legal Managers do on a regular basis, or read letters to BID from detainees held in prisons, to discover that it is not. Detention under serving-prisoner conditions is the norm – not the exception – for BID’s prison-held clients, and in each of the prisons where we deliver face to face legal advice to immigration detainees.
Holding detainees in prison conditions without automatic access to immigration legal advice inhibits any resolution of immigration cases and severely restricts individuals’ access to justice. Serious practical barriers to communication limit detainees’ interactions with the Home Office just as much as with legal representatives and family members. In the aspects of prison regimes that really matter to detainees trying to resolve their immigration case, including access to legal advice and the courts, it is clear that being held in a prison puts detainees at a clear disadvantage when compared with detainees held in IRCs.
16. Can people detained in prisons be transferred to an Immigration Removal Centre?
Yes. A prisoner can request a transfer to an IRC. However, the Home Office is not obliged to accede to this request, although they are obliged to provide a reasonable explanation should they decide to decline a transfer request.
For more information, see BID’s briefing paper, “Denial of justice: the hidden use of UK prisons for immigration detention" available here.