Immigration detention hit the news over the weekend with the announcement that Harriet Harman, chair of the joint committee on human rights, has cross-party agreement to address the issue of immigration detention exceeding 28 days. Immigration detention is not uncommon; figures from the Home Office show that in 2017 10,331 people were detained for more than 28 days. Some of these periods of detention are extremely long, lasting months or even years. The majority of those detained under immigration powers (7,015, about 70%) had not been convicted of a criminal offence in the UK, so why were they locked up at all?
Immigration detention can happen to virtually anyone with an immigration case, but there is clear Home Office guidance concerning when it will be suitable to detain someone:
Detention is most usually appropriate:
- to establish a person’s identity or basis of claim;
- to effect removal; or
- where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail.
The Home Office’s detention powers can be far-reaching. Earlier this month there were reports of a British citizen baby being lawfully detained with his mother, because the Home Office had not yet established whether the child was truly British. Detention can be used as a tool to control anyone perceived to be a threat to the immigration system, but there are widespread concerns that it is being used in a disproportionate way. Conservative MP David Davis, backing a Labour amendment to the current Immigration and Social Security Bill before Parliament aimed at limiting immigration detention to 28 days, said:
“The Home Secretary makes a good case for the importance of a firm but fair immigration policy, but does he accept that when we implement such a policy, it also has to be civilised? With that in mind, does he intend to do anything about the national shame of the 10,000 migrants in holding centres in this country?”
Once in detention, there are a limited number of ways to secure release. The first – as in the case of the baby mentioned above – is to persuade the Home Office that detention is not suitable, and release on immigration bail should be authorised, usually subject to residence, reporting and in some cases electronic tagging restrictions. This might be because an individual can assert a strong claim to remain in the UK, or because the person’s removal might not be possible (eg, they might be ill and unfit to fly in the short-term).
Although there is a general presumption in favour of release on immigration bail, there is no guarantee that an individual who applies for bail will be granted it. Any person detained under qualifying immigration provisions is eligible to be granted immigration bail by the Secretary of State, but bail is often refused where an individual has a poor immigration history or a criminal record. This is significant, because the proposed cap on the duration of immigration detention does not (for now) include foreign national offenders (FNOs). FNOs can be detained under immigration powers at the end of their criminal sentences, with the individual regularly kept in prison as opposed to being transferred to a specialist immigration detention facility. As a result of these practices, people can effectively have months added to the duration of their sentence without any involvement of the criminal courts.
Where the Home Office turns down a request for bail, the next step is to seek bail from an independent Tribunal Judge. Such applications must be carefully planned; under current provisions, if refused bail by the Tribunal, an individual cannot reapply to a judge for a 28-day period (absent a significant change of circumstances). A poorly prepared bail application can therefore condemn an individual to at least another month’s detention.
The issue of immigration detention is an emotive one. The perception is that those being detained must have broken the rules in some way, and so will be deserving of their fate. but this is not always the case. In 2018 there were multiple reports of the detention of individuals caught up in the Windrush scandal; in the worst cases those people were forcibly removed from the UK, despite having a legitimate claim to remain here. Immigration detention is therefore something which must be taken seriously, and there have to be checks and balances in the system to ensure that detention is managed in a fair and safe way. The proposed cap on detention under immigration powers is a welcome start, but we hope to see a time when immigration detention is not used at all.