Overview of Immigration Detention
Immigration detention involves holding a person under immigration powers while the Home Office deals with their immigration position, examination, removal or deportation.
A person may be detained in an Immigration Removal Centre, another secure facility or, in certain circumstances, a prison under immigration powers.
Detention is different from imprisonment following a criminal conviction. Immigration detention is connected to immigration control and must have a lawful basis.
Why Are People Detained?
Immigration detention can be used in different circumstances, including where the Home Office considers that a person may be liable to removal or deportation.
Detention may be used while arrangements are made for removal, while immigration issues are considered or where there are concerns about compliance with immigration control.
However, detention is not intended to continue indefinitely. Current Home Office guidance states that detention for removal purposes requires a realistic prospect of removal within a reasonable period and that the authorities must act with reasonable diligence and expedition.
Detention Must Be Lawful
The lawfulness of detention depends on the statutory power being used and the circumstances of the individual case.
Relevant matters can include the prospects of removal, the person’s immigration history, compliance with immigration requirements, risk of absconding, criminal history and any relevant vulnerabilities.
The Home Office must also consider relevant circumstances when deciding whether detention should continue.
Where there is no realistic prospect of removal within a reasonable timeframe, continued detention may become unlawful. Current Home Office guidance specifically requires removability and the realistic prospect of removal to be considered on an individual basis.
Vulnerability and Detention
Certain circumstances may make detention particularly significant.
The Home Office has policies concerning adults at risk in immigration detention and the treatment of people with vulnerabilities or particular health and welfare concerns.
Evidence relating to vulnerability should not be overlooked when detention is reviewed. Depending on the circumstances, medical evidence and other supporting information may be relevant to whether detention remains appropriate.
Detention Reviews
Immigration detention should be reviewed during the period of detention.
The reasons for detention may change over time. For example, removal arrangements may become delayed, a travel document may not be available, an appeal may be lodged or new evidence may create a legal barrier to removal.
A person may therefore have grounds to seek release even if detention was initially lawful.
The question is not simply whether a person was lawfully detained when they were first detained. The continuing lawfulness of detention must also be considered.
Release on Immigration Bail
A person detained under immigration powers may apply for immigration bail.
There are two main routes: bail from the Secretary of State and bail from the First-tier Tribunal. A person can apply for Secretary of State bail from the first day of arrival in the UK, while an application to the First-tier Tribunal is generally available after the person has been in the UK for more than eight days.
Bail can result in release into the community subject to conditions.
Conditions can include regular reporting, living at a specified address, attending appointments or hearings, electronic monitoring and restrictions concerning work or study.
Challenging Continued Detention
Where continued detention is unlawful or disproportionate within the applicable legal framework, there may be grounds to challenge it.
The evidence required will depend on the circumstances. This may include information about delays in removal, unresolved legal barriers, medical or vulnerability issues, family circumstances, compliance with reporting requirements and the availability of accommodation.
A judicial review may also be relevant in appropriate cases where the lawfulness of immigration detention is challenged. This may include situations where continued detention is considered unlawful or where the relevant legal requirements have not been properly followed.
Our Immigration Detention Advice
We can assess the circumstances of detention, review the reasons for continued detention and advise on immigration bail or other legal options.
Where appropriate, we can assist with bail applications, evidence, representations and challenges concerning the lawfulness of detention.