Border Security, Asylum and Immigration Bill

Written e vidence submitted by Detention Action, Medical Justice and Bail for Immigration Detainees (BSAIB28)

Border Security, Asylum and Immigration Bill (2025) 

Public Bill Committee

 

Executive Summary

1. Immigration detention is used excessively and operates in a dysfunctional way , causing significant harm to thousands of people detained each year. Conditions in detention are often harsh and prison-like, despite immigration detention being an administrative - not punitive - process. People can be detained for weeks, months or years at a time. The indefinite nature of detention and the inconsistent application of safeguards exacerbate the harms, leading to high rates of mental health issues, including self-harm and suicidal ideation.

2. There are numerous barriers to accessing suitable legal advice in immigration detention, creating a high risk that people with a legitimate claim to remain in the UK are unjustly detained or even removed. Despite this, more than 50% of people detained are later released on immigration bail, raising serious concerns about the legitimacy , or indeed the necessity , of their detention.

3. In addition to the significant harms caused by the use of immigration detention and its indefinite nature , the costs of unnecessary and unlawful detention to the public are high. These persistent problems could be addressed to a significant extent by the introduction of a 28 day time-limit on immigration detention, among other measures detailed below.

Evidence on Immigration Detention

4. Immigration detention is the practice of holding people in closed and often prison-like facilities , [1] to establish individuals’ identities or for the purpose of removal . Cells in immigration detention may be as small as 9 square metres [2] and people may be locked inside for up to 12 hours a day. [3]

5. The government has broad statutory powers [4] to detain people who are not British citizens. These are:

a) In order to remove or deport someone from the UK, including during the often-lengthy period when that decision is being made;

b) To examine a person arriving in the UK and while considering whether to grant them entry.

6. The decision to detain is administrative and made by an immigration official or the Home Secretary. Unlike in criminal proceedings, decisions to detain are not made by a judge. There is no fixed limit on the length of time someone can be detained (other than for children and pregnant women) and the period of detention is not predetermined by the Home Office, meaning that detention can be indefinite. Detained people often describe not knowing how long they will be detained as significantly adding to their distress.

7. In 2024, 20,604 people were placed in immigration detention. This is a 12% increase on the previous year. Of those, 14,195 were placed in an Immigration Removal Centre (as opposed to short-term holding facilities, pre-departure accommodation or in prison). This is a 26% increase on the previous year . [5]

Harm caused by detention

8. Home Office safeguards in detention have serious, long-standing flaws, are poorly operated, and often fail to identify a detained person’s vulnerability or lead to their release. The problems are so serious that the 2023 report of the Brook House Public Inquiry "found the entire [detention] safeguarding system in a number of areas to be dysfunctional." [6] This has resulted in high levels of health deterioration, self-harm and suicidality in the immigration detention system, as well as incidents of inhuman and degrading treatment. Since 2000, there have been more than 50 deaths in detention, 30 of which were self-inflicted. [7]

9. Amongst detained people, there is a high prevalence of mental health conditions [8] along with histories of torture, trafficking and other trauma. [9] These mental health conditions include depression, anxiety and post-traumatic stress disorder. Research studies have found these to be around twice as prevalent among detained refugees and migrants, as compared with the same groups when not detained. [10]

10. The Royal College of Psychiatrists’ 2021 position statement on the detention of people with mental disorders concludes that being detained in an IRC is likely to cause a significant deterioration of mental health in most cases. [11] Detention can also act as a causal factor in the onset of new mental health problems in people who were previously well, [12] and it has been found that the "only efficient way to improve… detainees’ mental health is to release them from detention". [13]

11. People in detention have described a range of factors contributing to their deteriorating mental health , including fear for their safety, the prison-like environment, feelings of criminalisation, and experiences of physical and verbal abuse. [14] In addition, the indefinite nature of detention and detained individuals’ uncertain legal status exacerbate this harm. Unmet medical needs, language barriers and isolation can all add to, and further complicate, deteriorating health.

 

Can people in detention access legal aid and support in detention?

12. Immigration detention is an administrative process that lacks the safeguards that should be present when depriving someone of their liberty. Unlike legal advice at police stations for those who have been arrested for criminal offences, there is no automatic access to legal advice or allocation of legal representation for people in immigratio n detention .

13. The Detained Duty Advice Scheme (DDAS) offers people held in IRCs in England 30 minutes of free legal advice, in person or by phone. Since its introduction more than a decade ago, the DDAS has operated with persistent, fundamental problems, including people waiting days for an appointment with a solicitor, solicitors on the roster not actually having capacity to take on cases and interpreters not being used.

14. In addition, unlike for an individual who retains their legal aid lawyer throughout a criminal process, for legal aid to continue beyond the initial 30 minutes of advice, individuals need to pass a merits test. Cases are sometimes incorrectly assessed as not having merit: in one year, almost 90% of cases that B ail for I mmigration D etainees (BID) assisted were granted bail, including cases that had previously been assessed as having no merit. [15]

15. The failings in the DDAS and legal aid scheme leave individuals without adequate advice and representation and mean that any errors or oversights in deciding immigration status or to remove someone from the UK may be impossible to correct before that person is removed.

 

Prolonged Detention

16. The Home Office recognises that domestic case law establishes clear limits on detention, stating that ‘where a person is being detained to effect their removal, the detention power can be exercised lawfully only if there is a realistic prospect of removal within a reasonable timeframe.’ [16]

17. In reality, people continue to be detained for months or years without a realistic prospect of removal. The most recent immigration system statistics released by the Home Office indicate that 34% of people leaving detention in 2024 were detained more than 28 days, while 570 people ( 2.8%) were detained more than six months. 51% of people leaving detention were released on immigration bail or granted Leave to Enter / Leave to Remain (LTE/LTR) and only 44% of them were removed from the UK. [17]

18. Those spending longer in detention go on to be released into the community at higher rates. In 2024, 77% of people detained for three days or less left detention due to removal from the UK. However, for people detained for more than three days the rate of return dropped to 36%, with 60% leaving detention due to receiving immigration bail or LTE/LTR. [18] Such outcomes indicate that people are subject to detention by the Home Office even when it is evident that there is little prospect of their removal.

19. HM Inspectorate of Prisons (HMIP) reports common reasons for excessive periods of detention as including: poor case progression; delays obtaining travel documentation; delays in securing appropriate release accommodation; and failures or delays in recognising high levels of vulnerability. In some cases, the reason for prolonged detention or delayed release was unclear. [19]

20. As the Home Affairs Select Committee recognised in 2019 "while the indefinite nature of detention traumatises those who are being held, it also means that there is no pressure on the Home Office to make swift decisions on individuals’ cases". [20]

 

Cost of Immigration Detention

21. The cost of detention is currently estimated at £122 per person detained, per day (£4 4 , 530 per year). [21] From 2021 to 2024, the Home Office paid out £40.6 million in compensation for unlawful detention, across 2,146 cases. [22]

Recommendations to Committee

Detention Action, Medical Justice and Bail for Immigration Detainees recommend:

22. The introduction of a statutory time limit on the use of detention, allowing the Home Office to detain a person for a maximum of 28 days. The time limit would reduce the number of people detained unnecessarily and unlawfully and help ensure that detention is used sparingly and only when removal is imminent and realistic. Other expert bodies have also recommended the introduction of a 28-day time limit, including the Brook House Inquiry , [23] the Home Affairs Select Committee [24] and the Joint Committee on Human Rights. [25]

23. The introduction of j udicial oversight of detention , via the First-Tier Tribunal, with automatic bail hearings after 96 hours of detention , in which a judge would assess:

a) whether removal is imminent; and whether the person’s detention is necessary or justified;

b) whether the continued use of detention remains justified and whether bail should be granted.

24. The automatic allocation of legal aid representation within the first 48 hours of a person being detained. This aid should continue until the person detained is either released, removed or deported. We also recommend that all non-asylum immigration work, work relating to people who have been trafficked and citizenship applications should be brought back into the scope of legal aid.

25. Section 12 of the Illegal Migration Act (2023) transfer red the primary responsibility for establishing the lawfulness of detention from the courts to the Home Secretary. [26] In effect, the Home Secretary retains the primary authority to decide whether the period of a person’s detention is reasonable. Section 12 further introduced a power to detain even when the Secretary of State considers that removal or deportation is not possible within a reasonable time, for as long as Secretary of State considers appropriate to make arrangements for their release. Article 5 ECHR permits detention "with a view to deportation" but arguably this new power exceeds what Article 5 permits. To ensure fairness and the vital, independent role of the courts, we recommend that the government repeal Section 12 of the Illegal Migration Act (2023).

26. The Brook House Inquiry issued 33 recommendations for change that reflect the interlinked nature of problems occurring in the immigration detention system. As of 15 January 2025, 30 recommendations have been accepted or partially accepted, and twelve have been implemented. [27] However, n o details have been provided as to which recommendations have been accepted and what parts of the " partially accepted " recommendations have been accepted or rejected. We urgently recommend the full implementation of all 33 recommendations made by the Brook House Inquiry, including those rejected by the Home Office, along with a report detailing progress made to date, in order to reduce the risk of further mistreatment, abuse or deaths in detention.

Submission made by:

· Detention Action is a human rights charity committed to defending the rights and improving the welfare of people held by the government in immigration detention. Since 1993, we have been challenging injustice in the UK’s detention, deportation, and asylum systems while providing critical frontline support to people in detention through our Casework Service.
 

· Bail for Immigration Detainees (BID) is an independent national charity established in 1999 to challenge immigration detention. We assist those held under immigration powers in removal centres and prisons to secure their release from detention through the provision of free legal advice, information and representation.

· Medical Justice is the only charity in the UK to send independent clinicians into all IRCs across the UK to visit detained people, to document their physical and mental scars of torture, serious medical conditions, the impact of detention on their health and injuries sustained during violent removal attempts. Evidence from our casework informs our research into systemic failures in healthcare provision, the harm caused by these shortcomings, and the toxic effect of immigration detention on the health of people in detention.

For further information, please contact :

Detention Action

Graeme McGregor, Campaigns & Communications Manager: graeme@detentionaction.org.uk

Medical Justice

Elspeth Macdonald, Parliamentary & Research Analyst: e.macdonald@medicaljustice.org.uk

(Submitted 06/03/2025)