Immigration Detention

What is immigration detention?

Immigration detention is the practice of holding people who are subject to immigration control in custody, while they wait for permission to enter or before they are deported or removed from the country. It is an administrative process, not a criminal procedure. This means that migrants are detained at the decision of an immigration official, not a court or a judge. Unlike most other European countries, there is no time limit on immigration detention in the UK.

If you are detained, there are legal procedures that you can follow to be released and further details can be found by clicking here. The Home Office policy says that detention must be used sparingly and for the shortest possible period. In our experience, detention is the norm rather than the exception: many thousands are held each year, and some for very long periods, causing serious mental distress.

ICS Legal now handles a number of immigration bail and immigration detention applications, as the Home Office decides to employ strict policies of removing migrants from the UK. Home Office latest stats can be found here

A view on immigration detention?

Around 30,000 people are held under Immigration Act powers every year, for a range of reasons. Some are asylum seekers who have had their claim refused. Others are asylum seekers who have a claim in process, and are being held while that decision is made (under what is known as the Detained Fast Track). Some will have overstayed or breached the terms of their visas, or will be foreign nationals who have completed a prison sentence and are to be deported. Some will be newly arrived in the UK, others will have lived lawfully here for many years. These categories are fluid and can overlap, for example a foreign national may claim asylum from prison. The single most common category of immigration detainee is an asylum seeker. Around 45% will have claimed asylum at some point.

In 2014, 99 children were held in detention, despite the government’s claim to have abolished child detention in 2011. At the end of 2014, there were 3,462 people in detention. The top five countries of origin were Pakistan, India, Bangladesh, Nigeria, and Afghanistan. Whatever the circumstances, being held in prison conditions without a time limit causes anxiety and distress. Many detainees already have traumatic backgrounds, and the psychological impact of being held is absolutely damaging.

Is immigration detention necessary in the UK?

The UK is one of the largest users of detention in Europe. People are detained in detention centers known as ‘Immigration Removal Centres’ (IRCs), Short-Term Holding Facilities (STHFs) and prisons. There are 10 IRCs in the UK, two of which (Yarl’s Wood and Colnbrook) have residential STHFs within the facility. Harmondsworth, near Heathrow, is the largest detention centre in Europe, holding up to 630 people at any one time.

There are a further two residential STHFs (in Manchester and Northern Ireland), and a unit for families called Cedars, which is known as ‘pre departure accommodation’ – it operates as a STHF. There are also many detainees held in non-residential STHFs for up to 24 hours – at various ports and airports- and several hundred detainees in prisons. The total capacity of these bed spaces, excluding prisons is about 4270. Including prison detainees takes this total to closer to 5,000. The Home Office contracts out the management of detention facilities to private providers, and to the Prison Service.

How long are people held in immigration detention?

The majority of those in detention will be held for less than two months, but in 2014 19% (11,293 people) were held for more than two months. This includes 161 people who were held for more than a year and 27 people for more than two years. The longer someone is detained, the less likely it is that they will be removed from the UK.

The UK is the only country in Europe that doesn’t have a time limit on detention. In 2014, 29,655 people left detention. 53% were removed from the UK, which means that 47% of those detained were released back into the community.

Detention Policy

The 1971 Immigration Act first introduced administrative detention for those denied entry to the country (Bacon 2005, p. 5). According to the act, immigration officers and officials in the Home Office have the authority to detain or grant temporary admission to people through administrative discretion (Immigration Act1971, § 4; Clayton 2008, pg. 539).

Removals, detention, and the UKBA

The UK Border Agency (UKBA) is responsible for removing all persons from the country who do not have the legal right to be there, including those who enter illegally, overstay their visas, breach their conditions of stay, are subject to a deportation action, or have been refused asylum (UKBA 2009c). Unauthorized immigrants can depart voluntarily, either independently or with the support of an assisted voluntary return programme, which had been overseen by the International Organisation for Migration until March 2011, when it was shifted to the independent charity Refugee Action(MRN 2011; Home Office 2008, p. 15).

Those who opt out of voluntary return can be issued a deportation order by the Home Secretary and be detained under the Immigration Act for examination or removal (UKBA 2009c). Detention under Immigration Act powers is intended to be administrative and not punitive (BID 2010a, p. 8). According to the UKBA’s Enforcement Instructions and Guidance, “Detention must be used sparingly, and for the shortest period necessary” (UKBA 2009b, chp. 55.1.3). Nevertheless, the United Kingdom is one of the few countries in Europe that has yet to impose limits on the length of time a person can spend in immigration detention (LDSG 2009, p. 11).

As the agency in charge of removals, UKBA is also the authority that has custody over immigration detainees. In 2007, the UK Borders Act expanded the detention role of the agency and introduced new grounds for detaining non-nationals (Bosworth 2008; Scottish Government 2009).

However, the UKBA’s role in the detention estate has come under increasing criticism, with some officials arguing that the agency should be replaced. In July 2010, Anne Owers, the Chief Inspector of Prisons, argued that UKBA should be stripped of its detention functions, arguing that there was a conflict between forced removal of non-citizens and the appropriate treatment of detainees. Said Owers: “The job [of UKBA senior management] is removal, and detention is incidental to removal. So I don’t think there is always an appreciation [of] what is happening on the ground about detention. So I float the idea of whether the process of looking after people who are in detention wouldn’t be better separated from the perfectly proper role of UKBA as an organisation that has to enforce immigration controls. Immigration detention should not be the same as prison. When we are looking at prison, the role of the Prison Service is to try to hold people safely in detention—that is not the core role of the UK Border Agency” (Verkaik 2010).

Frequently asked questions

Why cant people return home?  Many people in detention cannot return to their countries, even if they want to. Some are stateless, because their country will not accept them back. Most asylum seekers come without a valid passport. But countries like Iran and Algeria will not normally allow people to return unless they have a passport. Other people in detention have lived in the UK legally for many years or decades, and can no longer prove their original nationality. Under international law stateless people have similar rights to refugees and should be allowed to stay, but many find themselves detained indefinitely.

Other people are detained indefinitely because their countries are too dangerous for deportations to take place. For example, people from Zimbabwe and much of Iraq and Somalia cannot be deported because of the dangers involved in traveling there. Instead of being allowed to live in the community, many people are detained indefinitely. Unlike many other countries in Europe, there is no time limit on the length of time someone can be detained in immigration detention centres.

How many people are in long term immigration detention? According to Home Office statistics, at any one time between 210 and 260 people in detention have been held for over a year. However, these figures exclude the many people held in prisons under immigration powers, so the true figure will be significantly higher.

What are the rights of those who are detained by the Home Office? People in detention have the right to apply for bail. If they are granted bail, they can live outside detention while they wait for their immigration case to be resolved. This usually involves living at a designated address, reporting regularly to the Home Office, and sometimes electronic monitoring.

However, it is very difficult to be released on bail. Around 90% of our clients’ bail applications are refused. People with minor criminal convictions are usually refused bail, even if deportation is impossible. They are often refused release despite doing everything that the courts and the Home Office have told them to do in order to return or be released.

Home Office policy on long term immigration detention? Home Office refuses to publish statistics on how many people released from detention later abscond. However, evidence gathered by NGOs shows that the vast majority does not go underground. Many are still awaiting appeals and hope to be allowed to be granted legal status in the UK, so have strong reasons not to disappear. Others live with children, partners and families.

Detention is justified as a way to deport people, but the majority of people detained for more than a year are not ultimately deported. If the UK Border Agency cannot deport anyone in a year, it is unlikely that more time will make it possible.

How much does it cost the taxpayer for a person being detained? One year of detention in Colnbrook, where many people are held for long periods of time, costs over £70,000.

If you or your family member/friend has been detained, get legal advice immediately. You can contact our legal team on 0207 237 3388 or e-mail us on info@icslegal.com