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 eleven Immigration Removal Centres (IRCs) in the UK (one in Scotland and ten in England).¹ Three of the eleven IRCs are run by the UK Prison Service; the others are run by private companies on contract to the UKBA. There are approximately 3000 bed spaces available within these centres.

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 However, over half those detained in IRCs have sought asylum at some stage of the immigration process.³ A third group is those awaiting deportation following a criminal conviction in the UK.

Immigration detention centres were renamed Immigration Removal Centres in 2002. 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.

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

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 and that many people who have experienced sexual violence or torture have been detained and their applications for adjournments, or to be taken out of the DFT, refused.⁵

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.⁵

There is no statutory limit to the length of detention. However, 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.⁶

Although official UKBA policy is to use detention sparingly and for the shortest possible period, BID's research showed that it was not restricted to those soon to be removed.

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.

The latest data on length of stay shows that on 31 December 2009, there were 2595 people detained in the UK. Of these, 48% had been in detention for two months or less, with 29% detained for less than 29 days. The remaining 52% were detained for over two months - 44% for two to six months, and 8% for over a year.⁷

Since 2001 it has been UK policy to detain children. Unaccompanied minors may 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).⁸ The Outcry! campaign, which campaigns against the detention of children, estimates that in 2009 about 1000 children were detained in three detention centres: Dungavel House in Scotland; Tinsley House near Gatwick airport; and Yarl's Wood in Bedfordshire. Citing the Home Office's own figures they show that 85% of child detainees were under eleven years old, and that nearly 30% were detained for over a month.

The key concern of children's organisations is the physical and mental-health impact of detention on children. In one case, a family was awarded compensation for the post-traumatic stress suffered by a child after being detained.⁹

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. 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.¹⁰

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).

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.

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.