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Immigration detention Contents

1Introduction

Immigration detention in the UK

1.On average 27,000 people enter the immigration detention estate each year. These individuals spend widely varying lengths of time in immigration detention: while the great majority of individuals are held for less than 28 days, some individuals spend months and even years in detention. 5,949 individuals left detention in Quarter 3 of 2018. Of these, 4,212 spent less than 28 days in detention, 771 individuals were detained for between one to two months, 511 between two to four months, 226 between four to six months, 179 between six to twelve months and 50 individuals spent over a year in immigration detention.1

Table 1: People leaving detention in Q3 2018 by length of detention

Number of days

Number of people

%

7 days or less

2,346

39%

8 to 14 days

895

15%

15 to 28 days

971

16%

29 days to less than 2 months

771

13%

2 months to less than 4 months

511

9%

4 months to less than 6 months

226

4%

6 months to less than 12 months

179

3%

12 months or more

50

1%

Total leaving detention

5,949

100%

Source: Home Office Immigration Statistics, Detention tables, dt_06_q

2.People entering detention have no idea how long that detention will last. This lack of certainty and hope presents significant difficulties for detainees. We took evidence from three former detainees who told us that being detained alongside individuals who had spent years in detention exacerbated their uncertainty as to how long they would be detained for.2 Detainees face other challenges in detention including difficulties accessing legal advice and consequentially limited opportunities to challenge their detention; poor or prison like conditions in some Immigration Removal Centres (IRCs); unnecessarily restrictive regimes where detainees are locked in their rooms for extended periods of time; and in some cases, unsympathetic attitudes, heavy-handedness or ill-treatment by immigration enforcement teams. Such conditions can cumulatively affect detainees’ mental and physical health. One detainee told us that the experience of detention was so debilitating that “even the person with the most powerful mental resilience goes through some form of mental torture” in detention.3

3.The detention system carries a high financial cost as well as the human costs it imposes. The annual detention costs for the year ending March 2018 were £108 million.4 In addition, compensation is payable to people who have been wrongly detained—over £3 million compensation was paid in the financial year 2016–17.5

4.Given the high human and financial cost of the immigration detention system it is evident that the UK needs an immigration detention system which is fair, humane, decent and quick.

Legal framework

5.Article 5 (1) (f) of the ECHR allows deprivation of liberty in an immigration context if the purpose of detention is to prevent the “unauthorised entry into the country” of a person or where “action is being taken [against a person] with a view to deportation or extradition.”6 Article 5 further requires that detention must be proportionate and detention must be in accordance with procedures defined by law and the law must be sufficiently clear and precise. Specific safeguards must be provided when individuals are deprived of their liberty, including the right to bring proceedings to challenge the lawfulness of their detention and the right to compensation if detention is found unlawful following review by a court.

6.UK immigration legislation provides powers to detain foreign nationals for the following purposes:

These powers are vested in immigration officers or the Secretary of State. They are exercised by Home Office officials who make the initial decisions to detain.

7.Under the common law, the Hardial Singh principles apply where the immigration authorities are seeking to remove a person from the UK and they set important constraints on the state’s powers to detain for immigration purposes.11 The Hardial Singh principles are:

In addition, in order to be lawful, immigration detention must be in accordance with Home Office policy and be justified in all the circumstances of the individual case.

8.While these are all important safeguards, a comparison with the criminal justice system shows that there are significantly fewer safeguards in the immigration detention process than those applied in the criminal process.

Immigration detention compared with criminal justice system

Safeguards in the immigration detention process

Safeguards in the criminal justice process

Immigration detainees do not have automatic or immediate publicly funded legal advice or representation to challenge their detention.

When in police custody, an individual has near immediate access to legal advice and representation to challenge the loss of their liberty. The longest an individual can be made to wait before getting legal advice is 36 hours after arriving at the police station (or 48 hours for suspected terrorism).12

The initial decision to detain an individual is not automatically reviewed by a court until after four months in detention (although the Home Office has plans to launch a pilot for an additional bail referral at the 2-month point).

In the criminal process, individuals can be held in pre-charge detention for up to 36 hours under the authority of a police officer of at least the rank of superintendent. If the police want to continue to hold the suspect for more than 36 hours, a warrant of further detention must be sought from a magistrates’ court for a period of no more than 36 further hours. Applications may be made and granted for further warrants of up to 36 hours each, up to a maximum total time of 96 hours’ detention.13

Other than in the cases of pregnant women and families with children14, there is no upper time limit for immigration detention in the UK.

Once sentenced, an individual will know for how long they will be detained and when they will be released.15

There are reasons why the regimes differ but safeguards against arbitrary and excessively prolonged detention are needed whatever the reason for that detention.

Policy Framework

9.In order to be lawful, immigration detention must be in accordance with stated policy on the use of detention. The main guidance for Home Office officials making decisions about detaining individuals, Chapter 55 Enforcement Instructions and Guidance, states that “detention must be used sparingly, and for the shortest period necessary” and that “there is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used.”16 The guidance also states that detention is most usually appropriate to effect removal; 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.

Guidance on Immigration Bail for Judges

10.Under the current immigration detention system, individuals can challenge their detention by initiating an immigration bail application, which considers whether a person should be released. Individuals can apply for bail via the Home Office (known as Secretary of State Bail) or via an immigration bail application to the First Tier Tribunal Immigration and Asylum Chamber.

11.The Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber) recognises the gravity of depriving individuals of their liberty. It states that:

“Liberty is a fundamental right of all people and can only be restricted if there is no reasonable alternative. This principle applies to all people in the UK, including foreign nationals. Immigration detention cannot be used as punishment, as a deterrent or for any coercive purpose […] It is generally accepted that detention for three months would be considered a substantial period and six months a long period. Imperative considerations of public safety may be necessary to justify detentions in excess of six month.17

The guidance further states that when exercising the power to grant immigration bail the tribunal must have regard to the matters listed in Schedule 10 of the Immigration Act:

12.We note that if bail is granted, the judge must impose one or more conditions.19 The Guidance lists them as follows:

(a)An “appearance date condition”, requiring the person to appear before the Secretary of State or the First-tier Tribunal at a specified time and place;

(b)An “activity condition”, restricting the person’s work, occupation or studies in the UK;

(c)A “residence condition”, specifying where the person is to reside;

(d)A “reporting condition”, requiring the person to report to the Secretary of State or such other person as may be specified;

(e)An “electronic monitoring condition” (meaning a condition requiring the person to co-operate with such arrangements as the Secretary of State may specify for detecting and recording by electronic means the location, presence or absence of the person at specified times or periods), which may be in place of a reporting condition and in some cases will be mandatory;

(f)A “financial condition” (meaning a condition requiring the payment of a sum of money by the person to whom immigration bail is granted or another person in a case where the person granted bail fails to comply with another condition of bail), which will only be imposed if a judge thinks that it would be appropriate to do so with a view to ensuring that the person granted bail complies with the other bail conditions; or

(g)Any other condition a judge granting immigration bail thinks fit.20

Our Inquiry

13.In 2018 we conducted an inquiry into the wrongful detention of members of the “Windrush generation”. As part of the inquiry, two individuals shared their Home Office case files with us. These files showed that decision makers had not understood that those individuals had the right to live and work in the UK. They had ignored evidence and pieces of information in the case files and there was an inadequate oversight of decisions. We considered then that “administrative decisions made in these cases were not justified and proportionate and did not protect against unnecessary and unlawful detention.”21

14.The failures uncovered in these two cases prompted us to investigate the use of immigration detention in the UK more widely, to assess whether individuals subject to immigration control have sufficient protection against arbitrary detention. We specifically looked at whether detention decisions are sufficiently robust and what impact the lack of a maximum time limit for immigration detention has on detainees. We assessed whether detainees have sufficient access to legal advice and representation and sufficient opportunities to challenge their detention. Our findings are discussed in detail in Chapters 2 to 6 of this report.

15.We called for evidence on 23 July 2018 and received 64 written submissions.22 In our oral evidence sessions we heard from a diverse range of individuals including representatives from advocacy organisations, independent monitoring bodies, a former Home Secretary, practitioners, former detainees and the Minister of State for Immigration. All the evidence, both written and oral, can be viewed on our website.23 We are grateful to everyone who gave written or oral evidence. We are also grateful to our Specialist Advisors, Alison Harvey and Shu Shin Luh, for their advice during the inquiry.24

Home Office reforms to the system

16.We recognise that the Home Office has sought to make a number of improvements to the immigration detention system in recent years. The number of people detained under immigration powers has fallen. In the year ending September 2018, 25,061 individuals entered the detention estate–a 9% fall compared with the previous year.25 The department has commissioned two independent reviews looking into the welfare of vulnerable people in detention over the last three years. A number of reforms were implemented following the first Shaw review, including case working changes such as the introduction of a “gatekeeper function” and “case progression panels” and a new Adults at Risk policy. The Government also introduced automatic bail consideration at the four-month point for all those not subject to deportation through the Immigration Act 2016.26

17.Further reforms were announced following the second Shaw review including piloting an additional bail referral at the 2-month point,27 increases to the number of Home Office staff in immigration removal centres and commitment to introduce an “independent element” into the decision-making process. While we welcome the Home Office’s response to dealing with some of the issues facing the immigration detention system, we consider there is more to be done to minimise the use of immigration detention and ensure that where it is used the system respects the rights of immigration detainees. This report makes recommendations to that end.

1 Home Office, National Statistics List of Tables, Immigration Statistics. 9. Detention. Detention data tables, dt_06_q

2 Q40 [Jenny, former detainee]

3 Q53 [Arrey, former detainee]

4 Home Office, Annual Report and Accounts 2017–18, 19 July 2018

5 Letter from Sir Peter Rutman KCB, Permanent Secretary, Home Office, to Rt Hon Yvette Cooper, Chair, Home Affairs Select Committee, regarding Immigration Detention, dated 25 June 2018. (See Annex C)

6 Human Rights Act 1998, Schedule 1, Article 5

7 Immigration Act 1971, Schedule 2, Paragraph 16 (1) states: “A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.”

8 Immigration Act 1971 Schedule 2, Paragraph 16 (2) states: If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 18 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending— (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions

9 Immigration Act 1971, Schedule 3, Paragraph 2 (2) states “Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court] , he may be detained under the authority of the Secretary of State pending the making of the deportation order.”

10 Immigration Act 1971, Schedule 3, Paragraph 2 (3) states “Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained [F8unless he is released on immigration bail under Schedule 10 to the Immigration Act 2016.]

11 R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB)

12 Gov UK, Being arrested: your rights

13 Police (Detention and Bail) Act 2011, Explanatory Notes

14 Families with children and pregnant women can be detained for up to 72 hours, or 7 days with ministerial authorisation.

16 Home Office, Enforcement Instructions and Guidance, Chapter 55, Use of detention

17 Tribunals Judiciary, Judge Clements, President of the First-tier Tribunal (Immigration and Asylum Chamber), Presidential Guidance Note No 1 of 2018, Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber), Implemented on 15 January 2018

18 Tribunals Judiciary, Judge Clements, President of the First-tier Tribunal (Immigration and Asylum Chamber), Presidential Guidance Note No 1 of 2018,Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber), Implemented on 15 January 2018, p 3

19 Conditions are listed in paragraphs 2(1), 2(3), 2(4) and 5 of schedule 10 to the Immigration Act 2016

20 Tribunals Judiciary, Judge Clements, President of the First-tier Tribunal (Immigration and Asylum Chamber), Presidential Guidance Note No 1 of 2018, Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber), Implemented on 15 January 2018, para 14; refer to the Guidance for restrictions on the power to tag

21 Joint Committee on Human Rights, Sixth Report of Session 2017–19, Windrush generation detention, HC 1034 / HL Paper 160, para 45.

22 Joint Committee on Human Rights, Immigration detention inquiry launched

23 Joint Committee on Human Rights, Immigration detention inquiry - publications

24 Alison Harvey Declaration of Interest: Chair of the Trustees of Kalayaan, Barrister, No.5 Chambers

25 Home Office, How many people are detained or returned? Table 1: People entering, leaving and in detention, year ending September 2014 to 2018 (November 2019)

26 Immigration Act 2016, Schedule 10, Duty to arrange consideration of bail

27 At the time of writing, this had not been implemented.



Published: 7 February 2019