Detention and removal

Asylum seekers may be detained at any time during the asylum process, whether because they are in the fast track 'segment' of the New Asylum Model, or for some other reason, especially if they have reached the end of the asylum process and their removal from the country is imminent.

Asylum seekers who are not granted refugee status, humanitarian protection or discretionary leave are expected to leave the UK after the end of the appeal process. If they do not leave voluntarily, they can be detained in one of ten Immigration Removal Centres (IRCs) in the UK (one in Scotland and nine in England).¹ 

Not all detainees are, or have been, asylum seekers. Others detained may be people subject to immigration control who are in breach of their conditions or who entered illegally.² In 2010, just under half of those detained in IRCs had sought asylum at some stage of the immigration process.³ A third group is those awaiting deportation following a criminal conviction in the UK.

Since the introduction of the Detained Fast Track (DFT), IRCs are used to detain people judged to have a claim that could be decided rapidly as well as to hold people for removal. Asylum seekers can therefore be held at any stage of the immigration process.

Concerns have been expressed that the speed of the fast-track system pre-empts the possibility of asylum seekers providing adequate documentation of their need for protection, of obtaining meaningful legal advice, or effectively challenging a negative decision on appeal. In spite of the intention of speed, detainees often spend long periods in detention.^4,5,6,7

The decision as to whether a person is suitable for the DFT is made at the asylum screening interview by an assessor. Despite a list of factors which would make a person unsuitable for this process, there is evidence that the screening process is inadequate. Many people who have experienced sexual violence or torture have been detained. The Chief Inspector of the UK Border Agency found that of 114 cases examined, 30% of individuals were taken out of detention at some stage. Many (44%) were released due to health issues or evidence that they were victims of torture or trafficking.In addition, applications for adjournments, or to be taken out of the DFT, are frequently refused.^8,9,5,6

Although asylum claimants with an infectious disease are considered unsuitable for the DFT, one study found several women who were diagnosed with HIV in detention, and one who was under treatment, none of whom was released from the fast track.⁸ A Medical Justice investigation of the clinical care of people with HIV held in detention found that of 33 cases examined, three individuals were detained fast track.¹⁰

The length of time that people can be held in immigration detention is indefinite (the UK opted out of the EU Return Directive, which includes an absolute maximum of 18 months for immigration detention). In principle, Article 5 of the Human Rights Act 1988 and case law from the European Court of Human Rights establish that detention must be proportionate to the objective of removal, and that alternatives to detention such as having sureties (financial guarantees) and reporting requirements must have been considered. This means that if a detainee applies for bail, to refuse it the Home Office must be able to demonstrate that the applicant is likely to abscond if not detained.

In practice very few do abscond. A study commissioned by Bail for Immigration Detainees (BID) in 2002 traced 98 former detainees who had been bailed in 2000 and 2001 and found that over 90% had complied with their bail conditions, even though some of those were due for removal and, in fact, were later removed from the UK.¹¹

Although official Home Office policy is to use detention sparingly and for the shortest possible period, its use is not restricted to those soon to be removed.

Of the ten IRCs in the UK, three are run by the UK Prison Service and the others are run by private companies on contract to the Home Office. There are currently 3408 residential detention spaces available within these centres.

However, there are also foreign national prisoners held in mainstream prisons after the completion of their sentence (an average of 635 individuals at any one time). In addition, many people are held under immigration powers outside of IRCs in residential short-term holding facilities, non-residential holding facilities, hospitals and the new pre-departure accommodation for families with children known as Cedars, Pease Pottage.

The Home Office has only recently begun to publish figures on numbers of people in detention. As there is constant turnover with people coming in, being transferred from one IRC to another, being released or removed, quarterly information is gathered by means of a 'snapshot' census on a single day. At the end of September 2012, 3091 people were in detention, the highest number recorded since publication of the data began in 2001. Roughly 15% of the detainee population are female. In the third quarter of 2012, 48 children entered detention.¹² 

According to the University of Oxford’s Migration Observatory, “About half of immigration detainees are held for more than two months. A relatively stable share of about half of immigration detainees are held for less than two months. It is also not uncommon for detention to span two to six months. A small but consistent minority of detainees – just under 10% – are held for more than one year.”¹³

Between 2001 and 2010 it was UK policy to detain children, but the government pledged to end the detention of children in their May 2010 Coalition Manifesto, following pressure from NGOs.

The key concern of children's organisations was the physical- and mental-health impact of detention on children. Medical Justice’s study found that 74 children were psychologically harmed by detention; 23 children would not eat food for a period of time; and 48 children witnessed some form of violence, mostly during removal attempts.^14,15 In one case, a family was awarded compensation for the post-traumatic stress suffered by a child after being detained. In 2012, four children who had been held in detention centres for 13 months received compensation from the Home Office. (Thirteen months is the longest duration children have ever been detained in the UK.) The children’s lawyer claimed that they had been detained unlawfully and for too long, but the case was settled out of court.¹⁶

In December 2010, the government introduced a new policy under which families with children could be detained only in exceptional circumstances prior to their removal from the UK, for up to 72 hours. In 2011, the government opened “pre-departure accommodation” for such families called Cedars, Pease Pottage.¹⁷ Whilst the government claims that the detention of children has ended, some campaigners argue that it has been re-branded and Cedars is a secure detention facility. In the first quarter of 2013, 37 children entered detention.¹⁸

Moreover unaccompanied minors may continue to be detained as adults if the UKBA disputes their age, even if they have not been independently age assessed (a process itself subject to serious dispute).¹⁹

It is possible for detainees to apply for bail after having been detained for seven days, and if unsuccessful they can reapply after 28 days, or sooner if they can show evidence of a change in circumstances. The case for bail may be strengthened by reference to inadequate or inappropriate treatment in an IRC.  Normally bail will only be granted on the production of two sureties (people offering financial guarantees), an address where the detainee must live, and requirements to report regularly at a Home Office reporting centre or police station.

Often detainees do not have a lawyer to represent them and apply and represent themselves at bail hearings. Bail for Immigration Detainees provides assistance to detainees who wish to represent themselves. It also offers legal representation to some detainees, giving priority to those detained with children, people who suffer from serious health problems or who have been detained for over a year.²⁰

Detainees are also sometimes released on Temporary Admission (TA) with reporting requirements and an address. If the detainee has a lawyer they can apply for Chief Immigration Officer (CIO) bail which does not require a court hearing, but usually requires much larger sureties. In some cases their lawyer can apply for judicial review of the decision to detain or for a writ of habeas corpus (if it is thought that the detention is unlawful).

It is important that professionals working with people with HIV who are subject to immigration control (and therefore potentially liable to detention) make sure that their clients inform them, or their legal representatives, as soon as possible if they are detained.

Detainees are allowed to keep mobile phones with them in IRCs, provided they do not have cameras. In some IRCs, there is provision to buy or borrow mobile phones, and there are also usually limited facilities for detainees to make phone calls using the IRC's lines. They also have access to fax machines.