What is immigration detention?
Immigration detention is the practice of holding people who are subject to immigration control in custody, while they wait for permission to enter or before they are deported or removed from the country. It is an administrative process, not a criminal procedure. This means that migrants are detained at the decision of an immigration official, not a court or a judge. Unlike most other European countries, there is no time limit on immigration detention in the UK.
Home Office policy says that detention must be used sparingly and for the shortest possible period. In our experience, detention is the norm rather than the exception: many thousands are held each year, and some for very lengthy periods, causing serious mental distress.
Who is detained?
Around 30,000 people are held under Immigration Act powers every year, for a range of reasons. Some are asylums seekers who have had their claim refused. Others are asylum seekers who have a claim in process, and are being held while that decision is made (under what is known as the Detained Fast Track). Some will have overstayed or breached the terms of their visas, or will be foreign nationals who have completed a prison sentence and are to be deported. Some will be newly arrived in the UK, others will have lived lawfully here for many years. These categories are fluid and can overlap, for example a foreign national may claim asylum from prison. The single most common category of immigration detainee is asylum seeker. Around 45% will have claimed asylum at some point.
In 2014, 99 children were held in detention, despite the government’s claim to have abolished child detention in 2011.
At the end of 2014, there were 3,462 people in detention. The top five countries of origin were Pakistan, India, Bangladesh, Nigeria, and Afghanistan.
Whatever the circumstances, being held in prison conditions without a time limit causes anxiety and distress. Many detainees already have traumatic backgrounds, and the psychological impact of being held is absolutely damaging.
What Is Removal?
Most removals from the UK of foreign nationals (that is if you are non-British and/or a non-EEA national), take place by way of ‘administrative removal’. This is simply the removal of the person from the United Kingdom. Once outside the UK, the person can apply for re-entry under the Immigration Rules, although there may be issues regarding the trigger of a possible re-entry ban depending on the immigration history of the individual concerned. Administrative removal is distinct from deportation, in that a deportation order physically excludes the person from readmission to the UK for at least three years. However, an administrative removal is a direction and not an order to be removed and has no time period attached to the implementation of the removal.
This applies to illegal entrants, and those who became present in the UK illegally, i.e. overstayers and others who have breached the conditions of their stay in the UK. Before going ahead with an administrative removal, the Home Office will review all relevant factors before making such a decision. There may be complex challenges to bring against administrative removal decisions.
If I Am In Detention, Can I Be Granted Bail?
The Immigration Tribunal* has a power to grant bail. The individual may be released on bail subject to conditions. It is important to note that at the bail hearing the burden of proof in justifying detention lies, given the presumption in favour of bail, on the Secretary of State to the balance of probabilities. The immigration judge must give a reasoned decision in writing.
How does Deportation differ?
Deportation is the process whereby a non-British citizen can be compulsorily removed from the UK and prevented from returning unless the deportation order is revoked. There is no power to deport a person who has already left the UK. A deportation order operates to cancel leave to remain (ie it removes your status to remain in the UK).
But deportation has an effect long after the removal. A deportation order continues in force until it is revoked. Deportation must be distinguished from other forms of compulsory removal which may only affect current applications and stay in the UK.