An individual who is subject to immigration control can be detained by UK Visas and Immigration in different circumstances and for the following purposes:
- To examine immigration status
- To enable removal
- To enable deportation
Most people held in immigration detention are detained at an immigration removal centre (sometimes referred to as a detention centre).
There can be a number of reasons that someone may be detained by the immigration authorities. The following is a brief summary of some of the circumstances in which detention can occur.
Arrival – Normally someone who is subject to immigration control must have permission to enter the UK before arriving in the UK. If someone arrives in the UK without permission they will likely be detained.
Pending removal – Someone is liable to detention, pending a decision on removal, if they fit into one of a number of categories.
Pending deportation – Someone may be liable to detention if there is an intention to deport them. For example, if a court has recommended deportation, or if they commit a criminal offence which means they would be automatically deported, they will likely be detained.
Home Office’s Enforcement Instructions and Guidance includes specific instructions on the unsuitability of detention for some categories of individuals, including:
- Unaccompanied children under the age of 18
- Pregnant women in most circumstances
- Those suffering from serious medical or mental health issues which cannot be managed within detention
- Those who have been tortured and have independent evidence of this; and
- Persons identified as victims of trafficking
There is no time limit placed on how long someone can be held in immigration detention for in the UK. Those detained have the right to apply to the court for bail if they have been in the UK for more than seven days.
Someone who is detained can apply for bail to the Chief Immigration Officer or to the Tribunal. Recent changes to the law have restricted the rights to apply for bail, particularly where there are directions for removal. There are now also provisions which require repeat bail applications to be automatically dismissed without a hearing if made within 28 days of the last decision, unless there is a material change in circumstances.
The charity Bail for Immigration Detainees (BID) provides advice, information and support to those in immigration detention. For further information please visit www.biduk.org/information-detainees
The Immigration Act 2014 banned the detention of unaccompanied children for more than a 24-hour period at any one time. Restrictions were also set on where an unaccompanied child could be detained – such as where their presence is required for immigration purposes and at short-term holding facilities. Therefore children who have entered the UK can still be detained when they first arrive, but they may also be detained for criminal cases and escorting during returns.
Detention of children can also occur in ‘age dispute’ cases, where a child has stated that they are under 18 and the Home Office decides that their physical appearance/demeanour ‘very strongly suggests that they are significantly over 18 years of age’ or the local authority assesses them to be over 18.
When a decision is made to continue detention, the Home Office must consider certain principles when making a decision. These include:
- That the detention is for a legal purpose (for example – removal)
- The person should only be detained for a period that is reasonable in all the circumstances
- If the Home Office cannot remove the person within a reasonable period, detention should not be continued
- The Home Office should act quickly and effectively when planning removal
When someone is detained beyond a ‘reasonable period’ then that person’s detention will be unlawful. This means that they will be entitled to release and compensation.
It can be difficult to work out when exactly detention becomes unlawful. You often need to go to court to argue that detention is unlawful. Should you work with a young person who you think has been unlawfully detained, you should obtain further legal advice about this.
