What is immigration detention?
UK Visas and Immigration may detain an individual who is subject to immigration control in a variety of circumstances and for the following purposes:
- To determine one’s immigration status
- To make removal easier
- To determine one’s immigration status
The majority of individuals detained in immigration detention are held at an immigration removal center (sometimes referred to as a detention center).
Reasons for detention
There are a variety of reasons why an individual may be detained by immigration authorities. The following is a brief overview of some of the circumstances that may result in detention.
Normally, an individual who is subject to immigration control must obtain permission to enter the United Kingdom prior to arriving in the country. If someone enters the UK without authorization, they will almost certainly be detained.
Pending removal
If a person falls into one of several categories, they may be detained pending a removal decision.
Detention pending deportation
Someone may be detained pending deportation. For instance, if a court has recommended deportation or if they commit a criminal offence that automatically results in deportation, they will almost certainly be detained.
Who is improbable to be detained?
The Enforcement Instructions and Guidance of the Home Office contain specific instructions regarding the unsuitability of detention for certain categories of individuals, including:
- Children under the age of 18 who are not accompanied by a parent or guardian
- In the majority of cases, pregnant women
- Those who have serious medical or mental health issues that cannot be managed while detained;
- Those who have been tortured and have independent evidence of this; and
- Those who have been identified as victims of human trafficking.
Bail
There is no time limit on how long an individual may be held in immigration detention in the United Kingdom. If someone has been detained in the UK for more than seven days, they have the right to apply to the court for bail.
Someone who is detained may petition the Chief Immigration Officer or the Tribunal for bail. Recent changes to the law have limited an individual’s ability to apply for bail, particularly where removal directions have been issued. Additionally, there are now provisions requiring that repeat bail applications be dismissed without a hearing if made within 28 days of the previous decision, unless there has been a material change in circumstances.
Bail for Immigration Detainees (BID) is a not-for-profit organization that provides advice, information, and support to those held in immigration detention.
Unaccompanied children’s detention
The Immigration Act 2014 prohibited the detention of unaccompanied children for periods exceeding 24 hours at a time. Additionally, restrictions on where an unaccompanied child may be detained were imposed – such as where their presence is required for immigration purposes or in short-term holding facilities. Thus, children who enter the UK may still be detained upon arrival, but they may also be detained for criminal prosecution and escorting during returns.
Children may also be detained in ‘age dispute’ situations, in which a child asserts that they are under 18, but the Home Office determines that their physical appearance/demeanour very strongly suggests that they are significantly older than 18 years of age or the local authority determines that they are over 18.
What constitutes illegitimate detention?
When deciding whether to continue detention, the Home Office must adhere to certain principles. These include the following:
- That the detention is necessary for a legal purpose (e.g., removal); and
- That the individual should be detained for no longer than is reasonable in all the circumstances.
- If the Home Office is unable to remove the individual within a reasonable period of time, detention should be terminated.
- When planning removal, the Home Office should act quickly and effectively.
When someone is detained for an extended period of time beyond what is considered a ‘reasonable period,’ that person’s detention becomes unlawful. This entitles them to release and compensation.
It can be difficult to determine when detention becomes illegal. Frequently, you will need to go to court to argue that detention is illegal. If you work with a young person who you believe has been wrongfully detained, you should seek additional legal advice.
Henleaze Law can save you from detention
If you have been detained for any of the reasons mentioned above, you can reach out to our experts to help you with your situation. We ensure that our qualified attorneys and professionals will deal with your case to help you out of the difficult situation you are coping with.
