Foreign nationals who are subject to immigration control can be held in immigration detention in certain circumstances.
The Immigration Act 1971 first included the power to detain immigrants, and later legislation has built on this. Yet, there is nothing in immigration legislation limiting the amount of time a person can be detained.
A person can be detained before a decision is made whether or not to allow them to enter the UK (this mainly affects people seeking asylum) and pending a person’s removal from the UK.
Guidance setting out when someone can be detained includes:
- when a claim for asylum is being fast-tracked (the detained fast track system), or when it is being fast-tracked without the ability to appeal ('detained non-suspensive appeal');
- when removal from the UK is considered 'imminent';
- when a person is considered likely to abscond;
- when there is not enough information to decide whether or not to allow a person to be admitted or released;
- when release is not considered to be 'conducive to the public good'; or
- while waiting for alternative arrangements to be made for the person’s care.
A decision to detain is made by individual immigration officers and, unlike people detained under the criminal justice system, its lawfulness is not automatically subject to independent review. A detained person can, after seven days have passed, apply to a judge for review of his or her detention, but many people, particularly those who don’t speak English, are unaware of this procedure and find it difficult to access legal advice.
Every year, thousands of people are locked up in immigration detention centres. Many are detained for some months and some are locked up for over a year. Despite guidance suggesting that detention pending removal from the UK should only happen when removal is 'imminent', in practice many people are locked up for weeks or months before final arrangements have been made for their removal.
And while Government policy is not to detain survivors of torture, or those with serious medical conditions or mental health problems, in practice survivors of rape and torture, pregnant women and those with severe mental and physical health problems are often found to be in detention.
Many innocent men, women and children who have been locked up in immigration detention centres have suffered severe mental health problems, with detention in many cases adding to trauma already suffered in their home country.
Liberty believes that immigration detention should only be used as an extreme last resort, and for very time-limited periods, where it can be independently shown to be necessary. Immigration detention should never be used simply for administrative convenience.
In May 2010 the Government announced that it would end the detention of children in immigration detention. Liberty has been campaigning for this for many years and we responded to the Home Office review. Unfortunately there have been reports of many children, including unaccompanied minors, being detained at our borders, and we also have concerns about alternative facilities created by the Government which, although preferable to existing detention facilities, involve significant loss of liberty for the children involved.
The Government must end the immigration detention of children without delay. We hope that the Government will then consider ending immigration detention for administrative convenience for all.