Immigration detention is the practice of holding foreign nationals in custody for the purpose of immigration control.
Its use is limited to administrative purposes. In most cases the reason is to effect an individual’s removal from the UK. But detention can also be used to establish someone’s identity, or where there is reason to believe they will abscond, and even when release is not considered to be ‘conducive to the public good’.
A key feature of immigration detention, however, is that it is not a criminal procedure (it is an administrative one) and, therefore, should not be punitive. In this sense, immigration detention is completely different to imprisonment and public authorities can only resort to detention in cases where it is necessary for a specific lawful purpose (such as facilitating removal) and there are no reasonable alternatives to detention.
According to the Home Office’s own polices, immigration detention “must be used sparingly, and for the shortest period necessary”. These policies are designed to reflect the state of the law in the UK in relation to administrative detention, which requires a ‘strict and narrow’ interpretation of the phrase ‘the shortest period necessary’. Such an interpretation requires that detention must always be strictly confined to the time required to meet a permitted statutory purpose. In the now infamous Hardial Singh case, for example, the court held that where there is no prospect of removing someone within a reasonable timeframe, “detention becomes arbitrary, and consequently unlawful… and the deportee must be released immediately”.
Despite this emphasis on the short-term nature of any detention, the UK remains the only EU member state which does not set an explicit limit on the period of time that a person can be held in immigration detention. The reasoning is that the risks of arbitrary and prolonged detention are sufficiently minimised by the legal principles enshrined in UK law, described above. Rather than being automatically released after a fixed statutory period, detainees under UK law must, in theory, be released as soon as their detention is no longer necessary for a specified purpose, which could be earlier than a statutorily fixed period.
That’s the law. However, the Home Office has the discretionary power to detain a person at any point of their immigration process and there is little to no judicial oversight when the initial decision is taken. However, in practice, people are being wrongfully detained, held in immigration detention when they are vulnerable and detained for too long, contrary to the Home Office’s own Guidance and, in many cases, in breach of their human rights.
While immigration offices and ports of entry are supposed to have an absolute detention time limit of 5 consecutive days, immigration removal centers (“IRCs”), such as the Heathrow Immigration Removal Centre, has no limit on the duration of a person’s detention. Recent reports have given examples of detainees being held at Heathrow IRC for 12 months, two years, and even up to four years and six months before being released on bail. It is difficult to conceive such lengthy periods of detention as ‘reasonable’ and serious questions arise as to just how the Home Office can argue that a period of over two years in detention could ever be the ‘shortest period necessary’ to facilitate removal.
According to the Independent Monitoring Board for Heathrow IRC, the frequent inappropriate use of immigration detention has a damaging effect on the mental health and wellbeing of detainees and can amount to ‘inhuman and degrading treatment’. However, the duration of detention is only part of the issue. Heathrow IRC has been condemned for the conditions in which detainees there are kept. Designed for ‘short term detainment’, there have been reports on the worsening health conditions of detainees at the IRC, resulting in gang crime, psychoactive drug problems, mental and physical harm and insufficient access to medical treatment.
Around 30,000 people are held under Immigration Act powers every year, for a range of reasons. In 2018, 24,748 people entered detention. As of April 2019, there are seven IRCs (Brook House, Colnbrook, Dungavel, Harmondsworth, Morton Hall, Tinsley House, Yarl’s Wood), two STHFs (Manchester Residential STHF, formerly Pennine House, and Larne House), one pre-departure accommodation facility, and 30 holding rooms. There are also short-term units within some IRCs, including at Colnbrook and Yarl’s Wood.
The systemic failure of the immigration detention regime in the UK can be seen in the statistic that out of the 10 main detention facilities in the UK, each housing 2,000-3,000 people at a time, the nationwide removal rate for those held is less than 50%. The remaining 50% of detainees are eventually released after overturning ‘incorrect’ Home Office decisions. Such figures highlight the continuing and growing problems of immigration detention, with numbers of detainees increasing, and the release statistics remaining stagnant. Changes are required, and in this context the growing Parliamentary pressure for the 28–day detention limit is encouraging.
Whatever the circumstances, being held in prison-like conditions for people who in most cases have not committed a crime, without a time limit, causes extreme anxiety and distress. Many detainees already have traumatic backgrounds, and the psychological impact of being held is highly and potentially permanently damaging. The 28-day detention plan being advocated by both Parliament and the Independent Monitoring Board for the Heathrow IRC may be a step in the right direction, but is little comfort to those currently enduring years in detention. In the short term and at the very least, urgent and decisive measures must be put in place to address the weak administrative process and the serious lack of judicial oversight of the decision to detain which currently affects the UK immigration regime and blemishes the reputation of the UK as a fair and compassionate society as a whole.
If you have been detained or have any questions or queries with respect to immigration detention, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.