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October 12, 2024This piece begins with definitions of immigration and detention, followed by a brief history of detention centers. It will then discuss who can be detained, the duration of detention, the number of people held under immigration powers, issues surrounding immigration detention, and the legal barriers to detaining individuals. Finally, it will propose solutions to issues arising from current legislation.
Immigration and Immigration Detention
Immigration status is the kind of permission an individual has to be in the UK. Permissions have various types such as student, work, and visitor visas, leave to remain, asylum seeker, and refugee.
A person who is subject to immigration control is a person who under the Immigration Act 1971 requires leave to enter or remain in the United Kingdom. A person who is a British citizen is not subject to immigration control for an obvious reason.
Immigration detention is the practice of locking people in prison or Immigration Removal Centre (IRC) while their immigration status is resolved. It is a form of administrative detention.
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.
In accordance with Bail for Immigration Detainees’ (BiD) explanation, 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. People who have completed criminal sentences may continue to be held in prison under Immigration Act powers or be transferred to an IRC after completing their sentence and prior to their deportation.
The risk of detention is higher at some points in the asylum and immigration process. This includes on entry to the UK; when a visa or leave to remain has expired; when the applicant’s application has been refused and the applicant does not have the right to appeal; if the asylum seeker’s claim has been refused and they are appeal rights have been exhausted; when a person claims asylum; and if a person does not have any immigration status or applications pending.
Immigration Detention Centres
The history of Immigration Detention in the UK shows that the Immigration Act 1971 gave the Home Office the authority to use detention powers in relation to the administrative acts of examination, removal or deportation. Legislation in the 1990s, notably the 1999 Immigration and Asylum Act, formalised the existence of detention centres, which were officially re-named ‘Removal Centres’ in 2001.
There are currently 7 Detention Centres in the UK. Harmondsworth Detention Centre (at Heathrow Airport) was the first Centre that opened in 1970 to process Commonwealth immigrants after the Immigration Appeals Act 1969 made the current holding facilities in airports inadequate for the new timeframes put in place for this process.
Tinsley House (at Gatwick Airport) was opened in 1996 as the UK’s first purpose-built IRC. Yarl’s Wood and Dungavel opened in 2001. Colnbrook Detention Centre (at Heathrow Airport) was opened in 2004, Brook House (at Gatwick Airport) in 2009, and Derwentside in 2021.
Who can be held in immigration detention?
Three groups can be detained under immigration powers:
- Examination: people subject to immigration control who can be detained pending examination and a decision on whether to grant, cancel, or refuse leave to enter.
- Removal: 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.
- Deportation: Foreign nationals who have served a criminal sentence of 12 months or longer, those whose deportation is deemed to be conducive to the public good, or who are the subject of a recommendation for deportation can be detained post-sentence pending deportation.
Policy reasons for detaining typically include removing the person from the UK; establishing their identity or the basis of their immigration or asylum claim; where there is reason to believe they will abscond if released on bail; or when release is not considered to be ‘conducive to the public good’.
Duration of detention
As there is no time limit on detention, individuals may be held indefinitely. Exceptions are for pregnant women who can only be detained for up to 72 hours unless this is extended by ministerial approval. Unaccompanied minors should also not be detained, apart from in exceptional circumstances. However, sometimes children are wrongly detained by the Home Office because they are classified as adults.
How many people are detained in prisons under immigration powers?
According to the recent Home Office report, there were 1,808 people detained in detention centres and 105 people detained in prisons under immigration powers at the end of March 2024.
The issue with immigration detention
As specified by BiD, 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.
Under Article 5 of the European Convention on Human Rights, detention must be proportionate to the objective (e.g. removal), and alternatives to detention such as Financial Condition Supporters and reporting restrictions must have been properly considered for detention to be lawful.
According to the Home Office’s general instructions, the government’s 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. The use of detention is not restricted to those who are shortly to be removed.
Legal barriers to detaining individuals
There is no maximum period of detention, however, detention can be found to be unlawful if it does not serve the purpose for which it has been intended (e.g. removal) from the UK within a ‘reasonable’ period of time.
In addition, the Immigration Act 2016 provides for automatic bail hearings for those people held in detention under immigration powers who are not facing deportation and who have not applied for bail for a period of at least four months. The Secretary of State must arrange a reference to the First-tier Tribunal for the Tribunal to decide whether to grant bail to a person.
Furthermore, according to paragraph 2.68 of Immigration, Repatriation and Removal Services, 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 IRC, including the safety of staff and other detainees, which cannot be managed within the regime applied in IRCs. However, people held under immigration powers are routinely detained in the prison in which they have served their custodial sentence at the end of their sentence.
Conclusion
People come to the UK to escape war, persecution, or torture. Being detained is re-traumatising, many reported depression and thoughts of self-harm and suicide as a result. Although the purpose of detention is to resolve people’s immigration statuses, there is no time limit to keep people in prison or IRC. The proposed solution is to repeal the current law and add a time limit for detention under immigration power.
Written by Kourosh Fallah