2Operation of the detention estate
Overview of immigration detention
9.The key document governing the application of immigration detention is the Detention Centre Rules (2001). The Rules set out the purpose of detention as well as what detainees should have access to, including healthcare, access to welfare and privileges, safety and security.12 The Home Office policy guidance to all staff dealing with immigration enforcement is set out in the Enforcement Instructions and Guidance which includes directions on the power to detain, the decision and authority to detain, and detention procedures. Importantly, it also contains policy guidance on who should not be detained. The key chapter on detention is Chapter 55 which states:
- The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used.
- Detention is most usually 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 a grant of immigration bail.
- Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process, for example once any rights of appeal have been exhausted if that is likely to be protracted and/or there are no other factors present arguing more strongly in favour of detention.
- Detention can only lawfully be exercised under these provisions where there is a realistic prospect of removal within a reasonable period.13
10.The Home Office must specify the basis on which a decision to detain was made and “there must be a properly evidenced and fully justified explanation of the reasoning behind the decision to detain placed on file in all detention cases”.14
11.In response to the first Shaw review, the Government pledged to introduce a new ‘adult at risk’ concept into decision-making on immigration detention with a clear presumption that people who are at risk should not be detained. The new Adults at Risk (AAR) policy is underpinned by section 59 of the Immigration Act 2016. This required the Home Secretary to issue guidance for assessing whether an individual would be particularly vulnerable if detained and for making decisions to detain in such cases.
12.The Home Office Adults at Risk statutory policy guidance states that “being aged 70 or over” is an indicator of risk i.e. that a person may be particularly vulnerable to harm in detention.15 Guidance also states that, “unaccompanied children (that is persons under the age of 18) must not be detained other than in very exceptional circumstances”.16 The Home Office’s policy guidance on family separations allows for families to be separated by detention, for example if they intend to remove or deport one parent.17 However, the guidance states that: “A child must not be separated from both adults for immigration purposes (or from one, in the case of a single-parent family, if the consequence of that decision is that the child is taken into care)”.18
13.Decisions to detain an individual are taken by Home Office officials and not by a judge or court and immigration detention is overseen by the Immigration Enforcement directorate in the Home Office.19 There is no requirement in UK law for those decisions to be subject to judicial oversight within a certain period after a detention order is made.
14.The Home Office introduced a new Detention Gatekeeper Team in June 2016 to scrutinise all proposed detentions for evidence of vulnerability and advise caseworkers on detention decisions. There is no process for thorough pre-detention screening of individuals. On arrival at an IRC, all detainees receive a healthcare screening as part of the reception process, to identify the presence of vulnerabilities while the health needs of an individual are assessed.
15.Rule 35 of the Detention Centre Rules 2001 is intended to act as a safeguard against the detention of vulnerable people by ensuring that particularly vulnerable detainees are brought to the attention of relevant staff. It stipulates that the IRC medical practitioner must report on any detained person whose health is likely to be injuriously affected by detention, who is suspected of having suicidal intentions, or whom the practitioner is concerned may have been the victim of torture. Once a report has been completed, continued detention is reviewed by a Home Office caseworker, weighing immigration factors against evidence of vulnerability, within two working days of receipt.
16.In the UK, there is no limit on the length of time someone can be held in immigration detention. The length of time is heavily dependent on the efficiency of Home Office casework. Lengthy casework delays, for example regarding asylum decisions, appeals and documentation, can prolong individuals’ detention.
17.When a person is detained, the Home Office has a statutory duty regularly to review and provide written justification for their continued detention. Rule 9 of the Detention Centre Rules 2001 sets out the statutory requirement for detainees to be provided “with written reasons for detention at the time of initial detention, and thereafter monthly”.20 The Home Office introduced case progression panels in response to Shaw’s first review, to “provide an internally independent review of suitability for continued detention”. Cases are considered at these panels, staffed by other Home Office officials, at three-monthly intervals.21 Detainees in IRCs, but not in prisons, are entitled to 30 minutes’ free initial legal advice through the Legal Aid Agency.22
18.All detainees, other than those detained pending deportation and persons pending removal in the interests of national security, are entitled to automatic bail hearings after four months of detention. The Home Office has announced that it will pilot an additional bail referral after two months.
19.IRC management are contracted by the Home Office to provide “secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment.”23 The Home Office is ultimately responsible for oversight of the immigration detention estate.
20.The application of immigration detention as set out in policy and guidance is meant to be carried out in line with the process described in this section. However, the evidence taken by the Committee shows that there are serious problems with almost every element of the process, which lead to people being wrongfully detained, held in detention when they are vulnerable and detained for too long. Substantial reforms are needed.
Analysis of government immigration statistics
21.The number of people held in immigration detention has been falling since 2015. However the picture is more complex than government statistics immediately suggest, which can be seen in the charts below. Despite the decrease in the number of people being detained, a higher proportion of people are being detained for longer periods of time: 12% of detainees are being held for periods of 6 months or more.24 Stephen Shaw, in his follow-up review on immigration detention, found the time that many people spent in detention “remains deeply troubling” highlighting that “the number of people held for over six months has actually increased”.25 In evidence to the Joint Committee on Human Rights the Immigration Minister, Rt Hon Caroline Nokes MP, acknowledged that the Home Office detains too many people:
Do I think we detain too many? I am saying that I want to detain fewer, so I think we can deduce from that that, yes, I probably do.26
Number of people held in detention
22.Statistics on immigration detention are published by the Home Office in their quarterly Immigration Statistics release.27 At the end of December 2018, there were 1,784 people held in immigration detention facilities across the UK (including HM Prisons), the lowest comparable level on record since 2008. Of these, 366 detainees were held in HM Prisons under immigration powers at the end of December 2018.28 Figure 1 below shows a slight rise in the number of people held in detention between 2008 - 2017.29 The number of people in detention fell in both Q3 2018 and Q4 2018.30
Figure 1: Number of people in immigration detention at end of each year from Q4 2008 to Q4 2018
23.At the end of December 2018, foreign national ex-offenders ((ex) FNOs) made up around 53% of the detained population.31 Home Office immigration statistics showed that there were 366 detainees held in HM Prisons under immigration powers at the end of December 2018 which included time-served FNOs but also may have included people who had never received a custodial sentence.32 Time-served FNOs could be held anywhere on the immigration detention estate but the available statistics do not show exactly where.
Number of people entering and leaving detention
24.In the year ending December 2018, 24,748 people entered the detention estate (down 10% on the previous year) and 25,487 left detention (down 10%).33 Of those 25,487 leaving detention, 11,152 (43.8%) were returned from the UK to another country, compared with 46.6% in the year ending December 2017; in 2018 13,945 (54.7%) were released on bail and 47 (0.2%) were granted leave to enter/remain. A further 343 (1.3%) people were categorised in the ‘other’ category, which includes people who were returned to criminal detention, people released unconditionally, absconders, those sectioned under the Mental Health Act (1983) and people who died in detention.34 The chart in Figure 2 below shows a steady increase in people entering immigration detention from 2010 to 2015 and then a steady decrease since 2015.
Figure 2: Number of people entering detention by year
Deaths in immigration detention
25.The September 2018 Home Office immigration statistics included, for the first time, data on the number of deaths in detention; the Home Office confirmed that this data would be reported on an annual basis.35 The Home Office reported that “in 2017, 4 people died in the detention estate while being held solely under immigration powers. This does not include those who died while being detained solely under immigration powers in prison, or after leaving detention”.36
Length of time in detention
26.The Home Office quarterly immigration figures capture the length of time spent in detention in categories (e.g. ‘3 days or less’, ‘4–7 days’, etc.). The latest, December 2018 snapshot of current detainees showed that just under half (42%) of immigration detainees had been in detention for fewer than 28 days.37 In the same period, there were 54 people held in detention for one year or more.38 Although the proportion held for fewer than 28 days has increased since 2015, from 37% (972 of 2,607) to 42% (754 of 1,784), the proportion being held for periods of 6 months or more has also increased, from 10% (263) to 12% (208) of detainees. This is shown in Figure 3.39 In his 2018 follow up review, Stephen Shaw found that the “average time in detention has fallen by eight days (nearly 9 per cent) since early 2015”.40 This was based on data that Shaw obtained from the Home Office, which showed the average number of nights spent in detention among the currently detained population. The average figure presumably reflects the increase in the proportion held for less than 28 days.
Figure 3: People currently in detention in Q4 2015 and Q4 2018 broken down by length of detention.
Categories of people who are detained
27.Detainees are a mix of people who may be in the UK unlawfully such as overstayers, people seeking asylum, and foreign national offenders (FNOs). There also may be an overlap between these categories, for example an overstayer could make an asylum claim from within detention. As at the end of December 2018, 61% of people (1,085) held in immigration detention were asylum seekers; the number of asylum seekers as well the number of people in detention at the end of December 2018 was lower than in December 2017 and December 2016. However, as a proportion of the total number of people in detention, the proportion who were asylum seekers was higher than in previous years: 61% compared to 59% in both December 2017 and 2016. The proportion in June 2018 (64%) was the highest since December 2010.41
28.The latest Home Office immigration statistics show a decrease in the number of people being detained. We welcome this recent reduction. However, we are deeply troubled that, beneath this headline figure, there is an increase in people being held in immigration detention for over six months, many of whom are foreign national offenders.
29.We are also concerned about the fact that more than half of the people being detained in the year to December 2018 were simply released again, raising important questions over whether the power to detain is being used appropriately. The power to detain is a necessary one, but should be used only if there are no other options, as a last resort prior to removal. The power should be exercised for the shortest possible time and only when there is a realistic prospect of removal within a reasonable period.
12 The Detention Centre Rules 2001; Q365 : In oral evidence to us on 8 May 2018, Rt Hon Caroline Nokes MP stated that a review of the Detention Centre Rules 2001 would be “occurring this year”.
13 Home Office Enforcement Instructions and Guidance ; [Chapter 55.10, “Adults at Risk” was removed from the Home Office Enforcement Instructions and Guidance following the introduction of the AAR policy and is now available at Immigration Act 2016: Guidance on adults at risk in immigration detention, July 2018.
14 Home Office Enforcement Instructions and Guidance, Chapter 55.6.3, Form IS91R Reasons for detention: This form must be “served” on every detained person. “In addition, there must be a properly evidenced and fully justified explanation of the reasoning behind the decision to detain placed on file in all detention cases”. The guidance states that there are “five possible reasons for detention” which are set out on the IS91R form, these are: “ • You are likely to abscond if granted immigration bail. • There is insufficient reliable information to decide on whether to grant you immigration bail. • Your removal from the UK is imminent. • You need to be detained whilst alternative arrangements are made for your care. • Your release is not considered conducive to the public good”.
16 Home Office Enforcement Instructions and Guidance, Chapter 55.9.3; An unaccompanied asylum seeking child is defined as an individual who is: under 18 years of age when the claim is submitted; applying for asylum in their own right; separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so [Home Office, Safeguarding Strategy Unaccompanied asylum seeking and refugee children, November 2017, p7].
17 BID frequently asked questions, see number 5 https://www.biduk.org/pages/88-frequently-asked-questions-faqs#
18 Home Office, Family separations guidance, 11 December 2017, p6.
19 Home Office Enforcement Instructions and Guidance. Chapter 55.5, Levels of authority for detention.
20 The Detention Centre Rules 2001, Rule 9; Chapter 55.8 of the Home Office, Enforcement Instructions and Guidance advises Home Office staff on the management of monthly detention reviews. The guidance states that “Detention reviews are necessary in all cases to ensure that detention remains lawful and in line with stated detention policy at all times. Detention reviews must be carried out at prescribed points throughout the period a person remains detained under Immigration Act powers, whether the person is held in the immigration detention estate or elsewhere, for example, secure hospital or prison”.
22 The Legal Aid Agency (LAA) is an executive agency of the Ministry of Justice (MoJ) established under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 to commission, procure and pay for legal aid services from providers (solicitors, barristers, mediators and the not for profit sector). The Legal Aid Agency and the majority of the provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 apply to detention in England and Wales only.
23 The Detention Centre Rules 2001: Rule 3 (1) of the Detention Centre Rules 2001.
24 Home Office immigration statistics, December 2018, detention tables, dt_11_q.
25 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, a follow-up report to the Home Office, July 2018, Foreword, viii.
26 Q71, Joint Committee on Human Rights, oral evidence: Immigration detention, HC1484, Wednesday 5 December 2018.
27 Home Office immigration statistics, year ending December 2018. The most recent data is for Q4 2018.
28 Ibid; data for detainees held under immigration powers in HM Prisons can be found here: Table dt_13_q; the Home Office User Guide to Home Office Immigration Statistics 25 February 2019 stated that: “Data on the number of individuals held in HM prisons under immigration powers at the end of the period are included in the detention tables from the end of Q3 2017. These data include time served foreign national offenders (FNOs), those formerly on remand, and those unsuitable to be held in the immigration detention estate”.
29 The facilities included in the count are the eight Immigration Removal Centres (IRCs), two short-term holding facilities (STHF) and one pre-departure accommodation (PDA).
30 Home Office Immigration Statistics, Detention tables, dt_12_q: the total number of detainees fell from 2,758 in Q1 2018 to 2,226 in Q2 2018. In Q3 2018 the total number of detainees was 2,049 and in Q4 2018 the number was 1,784 (including HM Prisons).
31 Home Office Immigration Enforcement statistics, Q4 2018, table FNO_11, Time served foreign national offenders: there were 944 time-served FNOs in detention at the end of December 2018; Home Office Immigration statistics quarterly, year ending December 2018. Table dt_12_q; The Home Office statistics on the length of time spent in immigration detention are not disaggregated for (ex) FNOS and non FNOs.
32 Home Office immigration statistics, year ending December 2018. Table dt_13_q; User Guide to Home Office Immigration Statistics, 28 February 2019, p88: Data on the number of individuals held in HM prisons under immigration powers at the end of the period have been included in the detention tables from the end of Q3 2017. These data include time served foreign national offenders (FNOs), those formerly on remand, and those unsuitable to be held in the immigration detention estate. On completing their custodial sentence, time-served FNOs could be housed anywhere on the detention estate. This includes HM prisons, IRCs, and Short Term Holding Facilities (STHFs). The User Guide (p86) states that. “the data may include a small number of individuals who have never served a custodial sentence. These individuals are held in prisons as 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”.
33 Home Office Immigration statistics, as of December 2018. Table dt_01_q (entering detention) and dt_05_q (leaving detention).
34 Home Office immigration statistics, Table dt_05_q: People leaving detention by reason and age.
35 Home Office Immigration Statistics quarterly release, ending September 2018; The Home Office clarified that “Data on deaths in detention include those who died while held solely under immigration powers in detention facilities (such as IRCs, STHF, and PDA). They do not include those who died while being held solely under immigration powers in prison, or after leaving detention”.
36 Home Office immigration statistics, year ending September 2018; User Guide to Home Office Immigration Statistics, 28 February 2019, from the third quarter of 2017, the Home Office began capturing data of those held in prisons under immigration detention powers in their system (p88).
37 Home Office Immigration Statistics, December 2018; Table dt_11_q: People in detention by sex and length of detention.
38 Ibid
39 Home Office immigration statistics, December 2018, detention tables, dt_06_q.
40 Stephen Shaw, Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons, July 2018, p26.
41 Home Office immigration statistics quarterly, December 2018, Table dt_13_q
Published: 21 March 2019