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Administrative detention

The Government has wide powers to detain people for reasons of immigration control. Those who are subject to immigration controls may be held whilst they wait for permission to enter the UK or before they are deported or removed from the country. Immigration detention is an administrative process and is not to be confused with any criminal justice procedure. Powers to detain are exercised by Home Office officials, rather than judges.

Home Office policy states detention may be used in the following circumstances:

  • The person is likely to abscond if given temporary admission or release;
  • There is insufficient reliable information to decide whether to grant temporary admission or release;
  • The person’s removal from the UK is imminent;
  • Detention is needed whilst alternative arrangements are made for the person’s care; and
  • Release is not considered conducive to the public good.

The detention estate

Detainees are held in Immigration Removal Centres (IRCs) which are separate to prisons and short-term holding facilities. There are 11 IRCs across the UK. Most are managed by private sector companies; two are operated by the Prison Service. Foreign national offenders held for immigration purposes may be detained in prison.

Independent oversight is provided by HM Inspectorate of Prisons, Independent Monitoring Boards, the Prisons and probation Ombudsman and the Independent Chief Inspector of Borders and Immigration.

‘At risk’ adults, pregnant women and families with children

Guidance issued pursuant to the Immigration Act 2016 is intended to lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal. There is now a presumption that detention will not be appropriate if a person is considered ‘at risk’. In such circumstances detention will be used only if immigration control considerations outweigh the presumption.

Pregnant women may not be detained for longer than 72 hours, though this may be extended up to a week in total with Ministerial approval.

Changes introduced by the Coalition Government ended the pre-removal detention of families with children in Immigration Removal Centres. However, they may be detained in ‘pre‑departure accommodation’. Home Office policy sets a maximum period of 72 hours but this too may, in exceptional circumstances and subject to Ministerial authority, be extended up to a week. The lauded Cedars facility – which opened in 2011 and was jointly managed by G4S, the Home Office and Barnardo’s, who provided social work, welfare and support services to detained families – was closed in 2016 to ensure value‑for‑money.

Criticism of detention

The use of detention is one of the most controversial aspects of the UK immigration and asylum system. Recurring criticisms include:

  • That it is unfair to deprive a person of their liberty for administrative convenience
  • That detention is costly, ineffective and harmful, and that there are better alternatives to detention
  • That indefinite detention is harmful to detainees’ mental health and well-being
  • That safeguards to protect detainees and prevent inappropriate cases from being detained are insufficient and ineffective
  • That policies to guard against prolonged, unnecessary and unlawful detention are inadequately enforced
  • That there is a lack of transparency about the use of detention and conditions in IRCs, including the treatment of detainees and the conduct of detention centre staff
  • That detainees are disadvantaged by their limited and inadequate access to legal advice, external communications and healthcare

Critics call for a maximum time limit on the length of detention; for automatic judicial oversight of decisions to detain; and for consideration of community-based alternatives.

The Government asserts that detention and removal are essential to ensure effective immigration control, and insists it understands the need for the maintenance of dignity and respect. It promises that decisions to detain are never taken lightly, and points to its policy that detention must be used sparingly and for the shortest period necessary.

Stephen Shaw’s reviews of detention policies

In February 2015 then Home Secretary Theresa May tasked Stephen Shaw, former Prisons and Probation Ombudsman for England and Wales, with conducting an independent review of Home Office detention policies and procedures.

Mr Shaw made 64 specific recommendations, including that the presumption against detention be extended to include victims of rape and other sexual or gender-based violence (including FGM), to those with a diagnosis of PTSD, to transsexual people and to those with learning difficulties. He called for an absolute exclusion of pregnant women from detention, and advised that the clause “which cannot be satisfactorily managed in detention” should be removed from the section of the guidance covering those suffering from serious mental illness. Mr Shaw also found that rule 35 of the Detention Centre Rules – designed as a key safeguard for victims of torture or whose health would be at risk from continued detention – failed to protect vulnerable people in detention.

The Government accepted ‘the broad thrust’ of the recommendations and invited Mr Shaw to conduct a shorter follow-up review in autumn 2017 to assess progress made in implementing his recommendations.

On 24 July 2018 Mr Shaw published a follow up report assessing the Government’s implementation of the recommendations in his first report. Mr Shaw’s second report found that although the Government has shown a clear commitment to the broad thrust of his previous recommendations, there is a gap between policy and practice. He assessed the impact of the Adults at Risk program and found that the policy has brought a welcome focus onto vulnerability in detention. He noted that it will take time for the program to mature and made recommendations to strengthen outcomes.

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