Immigration Detention Overview
The Home Office has the power to detain individuals under the Immigration Act 1971 for the purpose of examining them, pending a decision on their immigration status, or pending removal or deportation from the UK. Unlike detention in the criminal justice system, immigration detention is an administrative — not criminal — power, and it does not require conviction or charge of a criminal offence.
Individuals may be detained in Immigration Removal Centres (IRCs), Short-Term Holding Facilities (STHFs), or in certain circumstances in the prison estate. Detention can follow an arrest, be imposed at a port of entry, or arise during ongoing immigration proceedings.
Grounds for Detention
Immigration detention is only lawful where there is a statutory power to detain and where the power is exercised in accordance with the Hardial Singh principles — that is, the person can be removed within a reasonable period, the authorities are taking reasonable steps to effect removal, and the period of detention is not unreasonable in all the circumstances.
Common reasons the Home Office detains individuals include:
- Pending a decision on a pending asylum or immigration application
- Pending deportation or removal following an adverse decision or criminal conviction
- Where the Home Office assesses there is a risk of absconding
- Where there is considered to be a risk to the public
Immigration Bail
Detained individuals have the right to apply for immigration bail. Bail can be granted by the Secretary of State (the Home Office) or by the First-tier Tribunal. A bail application involves a hearing at which the Tribunal considers whether it is appropriate to release the individual, usually subject to conditions such as reporting, residence, and electronic monitoring.
Preparing a strong bail application requires detailed knowledge of the legal framework, a clear presentation of the individual's circumstances, and ideally the support of a suitable surety. The prospects of a bail application are significantly improved with proper legal representation.
Challenging the Lawfulness of Detention
Where detention is — or has become — unlawful, it may be challenged by way of judicial review or a writ of habeas corpus. Unlawful detention can give rise to a claim for damages. The lawfulness of detention can be challenged on the basis of breach of the Hardial Singh principles, failure to follow the Home Office's own detention policy (including in relation to vulnerable individuals), or unlawful discrimination.
Vulnerable Individuals
The Home Office operates a Adults at Risk policy which sets out that detention is not appropriate for certain vulnerable individuals, including those who have been tortured, those with serious mental or physical health conditions, pregnant women, and unaccompanied children. Where a detained person meets the Adults at Risk criteria, there is a presumption against detention that can only be rebutted by immigration factors of sufficient weight.
How Britlaw Can Help
If you or a family member has been detained, urgent legal advice should be sought as a priority. Britlaw Solicitors can advise on the lawfulness of detention, prepare and present bail applications, challenge unlawful detention by way of judicial review, and coordinate with other aspects of the immigration case including pending asylum or removal proceedings.