Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement Contents

7Immigration Detention and Bail

Immigration detention

177.Approximately 13,000 people were taken into immigration detention in the UK in the year ending March 2021. Immigration legislation provides powers to detain foreign nationals for purposes including:

178.Immigration detention amounts to a prima facie interference with the right to liberty, guaranteed under Article 5 ECHR. Article 5 permits “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”178 However, Article 5 further requires that detention must not be arbitrary, must be used in accordance with procedures defined by law and that this 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.

179.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.179 The Hardial Singh principles are:

Furthermore, 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.

180.The Joint Committee on Human Rights conducted an inquiry into immigration detention during the 2017–19 Parliament.180 The Committee had “serious concerns about the detention decision-making process at the Home Office.” It recommended inter alia that “decision making about detention should be independent. Independent decision making will ensure that the initial decision to deprive a person of their liberty is robust and fully justified. The power to detain should not be wielded by the Department which is charged with removals and deportations.”181 This recommendation was rejected by the Home Office.182

181.While the numbers in detention have recently dropped significantly,183 the organisation Bail for Immigration Detainees (BID) made clear in their written submissions to us that problems with the quality of decision making have not improved in the years since the JCHR’s report on immigration detention was published:

Detention decision-making is frequently incorrect or unlawful. In [the] last year, 77% of people detained were released back into the UK, detention having served no purpose whatsoever. The Home Office paid out [a] total of £9.3m compensation for 330 cases of wrongful detention in 2020/21 - up from £6.9m in 272 cases in 2019/20. This means that in the last 3 years, the government has paid out a total of £24.4 million to 914 people it was found to have locked up unlawfully.184

182.We are disappointed that the Government have not used the Nationality and Borders Bill as an opportunity to introduce independence into the immigration detention decision-making process. The Government must take action to ensure that people are not being detained unlawfully.

Clause 47 and Immigration Bail

183.Where a person is in immigration detention, or is liable to be detained on immigration grounds, the Home Office must consider whether they should be released on immigration bail. Detention should be used only as a last resort.185 A person detained on immigration grounds may also apply to the First-tier Tribunal for release on immigration bail. Where immigration bail is granted it must be subject to at least one condition, such as reporting requirements, restrictions on where the individual can live and the use of an electronic monitoring tag.186

184.Clause 47 of the Bill makes changes to the law governing the grant of immigration bail, adding additional matters to which Home Office decision makers and the First-tier Tribunal must have regard when making their decision on bail. Currently the Home Office and the First-tier Tribunal must have regard to:

a)the likelihood of the person failing to comply with a bail condition;

b)whether the person has been convicted of an offence (whether in or outside the United Kingdom or before or after the coming into force of this paragraph);

c)the likelihood of a person committing an offence while on immigration bail;

d)the likelihood of the person’s presence in the United Kingdom, while on immigration bail, causing a danger to public health or being a threat to the maintenance of public order;

e)whether the person’s detention is necessary in that person’s interests or for the protection of any other person; and

f)such other matters as the Secretary of State or the First-tier Tribunal thinks relevant.

185.This list does not include acts of non-cooperation with the immigration process. The Explanatory Notes state that “This means that there is a risk that acts of non-cooperation, which result in a delay to the individual’s removal, could create a perverse incentive whereby they make a grant of immigration bail more likely. The risk follows that such a person released on immigration bail may abscond and frustrate removal altogether.”187

186.Clause 47 would add to this list “whether the person has failed without reasonable excuse to cooperate with any process” for determining whether that person should be granted leave to enter or remain; for determining the details of that leave; for determining whether they should be removed; and for removing the person from the UK (i.e. every stage of the immigration process).

187.While we recognise that efficiency in the immigration system is of benefit to the Government and to those awaiting decisions on their immigration applications, we do not consider that administrative convenience is a sufficient justification for depriving a person of their liberty. Detention should only be used if it is necessary and proportionate. This means that matters should only influence a decision to release a person from detention on immigration bail if they are relevant to the necessity and proportionality of that detention. The decision-maker is already required to consider whether a person is likely to comply with bail conditions (which will include a requirement to report and thus to not abscond) and to take into account any other matters they consider relevant. To the extent that a failure to co-operate with an immigration process is relevant to compliance with bail conditions, or is considered relevant to the need for detention in any other way, it can already be taken into account. The amendment requires non-cooperation to be taken into account in every decision. Therefore, it must be taken into account even if not relevant, which inevitably risks it being given weight without justification. This could result in arbitrary detention in breach of Article 5 ECHR.

188.Bail for Immigration Detainees (BID) noted in their written evidence to us that changes in part 2 of the Bill, which introduce the possibility for additional strict procedural time limits,188 increase the likelihood that individuals may be deemed not to have co-operated with immigration processes and thus “are likely to find it harder to get released from detention.”189

189.The Joint Committee on Human Rights has previously concluded that “Detention should only be used where necessary and proportionate and where alternatives are not available or would not meet the legitimate aims pursued.”190

190.The changes proposed in the Bill increase the risk that immigration detention will be used, and prolonged, where it is not necessary or proportionate. We recommend that clause 47 be removed from the Bill to improve safeguards against detention in breach of Article 5 ECHR.

174 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.”

175 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.”

176 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.”

177 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.”

178 European Convention on Human Rights, Article 5(1)(f)

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

180 Joint Committee on Human Rights, Sixteenth Report of Session 2017–19, Immigration Detention, HC 1484;HL Paper 278

181 Ibid, para 38

182 Joint Committee on Human Rights, Second Special Report of Session 2019–20, Immigration Detention: Government Response to the Committee’s Sixteenth Report of Session 2017–19, HC216

183 We note that this appears to have been, at least in part, a consequence of Covid-19 – as immigration decreased and many in detention were released on immigration bail following Home Office review. See the Migration Observatory, Immigration detention in the UK, accessed 18 November 2021

184 Bail for Immigration Detainees (NBB0043)

185 As accepted by the Government in Joint Committee on Human Rights, Second Special Report of Session 2019–20, Immigration Detention: Government Response to the Committee’s Sixteenth Report of Session 2017–19, HC216, page 10; “Where detention is considered appropriate, the Detention Gatekeeper ensures that it is used as a last resort…”

186 HM Government, Immigration detention bail, accessed 18 November 2021

187 Explanatory Notes to the Nationality and Borders Bill [Bill 141 (2021–22)–EN] para 518

188 Bail for Immigration Detainees (NBB0043)

189 Bail for Immigration Detainees (NBB0043)

190 Joint Committee on Human Rights, Sixteenth Report of Session 2017–19, Immigration Detention, HC 1484; HL Paper 278, para 28

Published: 1 December 2021 Site information    Accessibility statement