What is detention?
Detention is the action of holding someone in official custody before they are deported or removed from the UK. The immigration decision to detain someone is an administrative decision made by immigration officers; not a decision by a judge as part of the process of the criminal justice system.
Those taken away to be detained can be held in detention centres, officially known as Immigration Removal Centres (IRC). However, the name of the facility is misleading as many detainees are held in the centres with no prospect of being removed or deported from the UK.
How long can someone be detained?
In the UK there is no time limit on how long an adult can be detained – it could be indefinite (with exceptions for pregnant women). However, according to the UK government’s policy on detention, detention is to be used for the shortest period necessary. Hence, if an individual is detained for longer than necessary, the detention will be unlawful for being incompatible with the government’s policy.
When can someone be detained?
An individual can be detained at any time that they do not have the right to remain in the UK and if they are not waiting for a response on an immigration application. Not having the right to remain can arise in the following situations:
- Upon entry into the UK – e.g not having valid permission to enter lawfully
- Upon claiming asylum in the UK as a Dublin safe third country case – namely, when the Home Office thinks you could have safely claimed asylum in another EEA country before travelling to the UK and so they could attempt to remove you to the ‘third’ country
- Upon claiming asylum and being appeal rights exhausted – this is when an asylum application has been rejected and either the appeal was refused, you did not appeal or did not have the right to appeal
- If you have an expired leave to remain and are not waiting for a decision on an immigration application
Who cannot be detained?
Certain groups of people should not be detained (unless exceptional circumstances arise), such as:
- Unaccompanied persons under the age of 18
Adults that may be “particularly vulnerable to harm in detention” as outlined in the Home Office 2016 policy, such as:
- Those aged 70 or over
- Pregnant women
- Those with serious physical disabilities
- Those with serious medical conditions that can only be managed outside of the detention centres
- Those suffering from serious mental illness, including PTSD
- Torture and trafficking victims
- Victims of gender or sexual based violence
- Those that are transsexual or intersex
Those detained may be detained in ‘places of detention’ named under the Immigration (Places of Detention) Direction 2014. This can be police cells, immigration removal centres, prions, hospitals or detention centres; official known as Immigration Removal Centres (IRC). Unaccompanied children or those below under the age of 18 may only be held in a place of safety. Families with children under the age of 18 may be held in non-residential short-term holding facilities, pre-departure accommodation or in a family suite in an IRC.
There are 10 detention centres across the UK – detainees cannot leave the centres and moving around within the centre is limited. As of January 2019, the immigration detention estates comprises of places at the following locations:
|Brook House, Gatwick||Males only|
|Campsfield House, Oxfordshire||Males only|
|Colnbrook, Middlesex||Males only|
|Dungavel House, South Lanarkshire||Males/females/families with no children under the age of 18|
|Harmondsworth, Middlesex||Males only|
|Larne House, Antrim||Male/female|
|Morton Hall, Lincolnshire||Males only|
|Pennine House, Manchester||Male/female|
|Tinsley House, Gatwick||Males/families, including those with children under the age of 18|
|Yarl’s Wood, Bedfordshire||Females/families with no children under the age of 18/males.|
How can detainees be released?
- Home Office/Immigration Bail
A detainee can apply to grant him/her immigration bail (colloquially known as Home Office Bail). The power to grant immigration bail is given to Secretary of State (in practice a person acting on behalf of the Secretary of State such as an immigration officer), under paragraph 1 of Schedule 10 of Immigration Act 2016. The person applying for immigration bail is required to apply using the specific immigration bail application form.
Alternatively, the Secretary of State may consider granting immigration bail to a person, whether or not the person has applied for an immigration bail, if the Secretary of State thinks that granting the person immigration bail is appropriate.
- First-tier Tribunal Bail
The power for Fist-tier Tribunal to grant immigration bail is contained in paragraph 1(3) of Schedule 10 of Immigration Act 2016. A person detained under the provisions listed therein can be granted bail either on application by the person or by reference by the Secretary of State.
Tribunal bail may be available for detainees for release once they have been in the UK for 8 days or more. When determining whether or not to grant bail, a judge is required to consider the likelihood of the person failing the bail condition, whether the person has been convicted of an offence, the likelihood of the person committing an offence while on bail, the likelihood of the person’s presence causing a danger to public or being a threat to the maintenance of public order and whether the person’s detention is necessary in that person’s interest or for the protection of any other person.
If an immigration bail is granted to a person, the tribunal judge must impose one or more conditions listed in paragraphs 2(1) to 2(5) of Schedule 10 of the Immigration Act. These include, appearance date condition, residence condition, reporting condition, electronic monitoring condition, financial condition, and any other condition the judge thinks fit.
- Judicial Review
The decision to detain a person can be challenged through the process of a judicial review. If it can be shown that a person has been unlawfully detained, they may be entitled to obtain compensation, apologies and other forms of redress. This can be a particularly complex process and so requires specialist experienced counsel to make a compelling case for judicial review.
How can NA Law help you if you or someone you know has been detained?
Whether you are at risk of being detained, are currently a detainee and wish to apply for bail or if you feel you are being unlawfully detained, NA Law can help you with what is often a distressing and complicated period of time in your life. Our immigration experts can help you get what you deserve and are entitled to.
Contact us today for a free case assessment of your situation and to find out how we can help you.