Immigration Detention In The UK

What is bail? How do you get it?

Bail is a legal procedure available to any person who has been detained by the UKBA once they have been in the UK for seven days. It is an application to a court for release, usually under certain conditions. When a detainee makes an application for bail they are brought to an immigration court (the Asylum and Immigration Tribunal (AIT)) where an independent Immigration Judge makes a decision on whether detention should be maintained.

Many detainees who can’t find a lawyer end up representing themselves in AIT bail hearings. If bail is refused, the detainee has the right to apply for bail again after 28 days unless their circumstances have changed, in which case they can apply sooner. If bail is granted there will normally be certain conditions attached. For example, the individual and their sureties (if they have any) may have to offer an amount of money considered proportionate to their financial means, an amount that would be surrendered if the detainee absconded. The Immigration Judge also often requires the detainee to live at a particular address, and report to a UK Borders Agency office or a police station at regular intervals.
 

Who can be detained and under what powers?

Asylum seekers and migrants in the UK can be detained by immigration officers exercising powers conferred on the Secretary of State under a number of different Immigration Acts.

These powers have been developed via non-statutory documents such as the UK Border Agency Enforcement Instructions and Guidance 2. The Immigration Act 1971 provides the majority of the statutory powers of detention for those subject to immigration control 3, although these provisions have been amended and added to by subsequent legislation. The Home Office has recently extended the circumstances under which detention may be used to facilitate faster decision-making on some asylum claims. In other words, detention power can now be used for administrative purposes. Prior to this development detention policy was framed in terms of use as a last resort where failure to detain might have serious consequences.

There is no statutory limit to the length of immigration detention. The decision to detain is made by an individual immigration officer and is not automatically subject to independent review at any stage. Immigration detention is subject to fewer checks than detention within the criminal justice system. Legislation providing for automatic bail hearings was contained in Part III of the Immigration and Asylum Act 1999 but never implemented, and has since been repealed by the Nationality, Immigration and Asylum Act 2002. Many detainees have no legal representation and therefore cannot access elective bail procedures. This means that in many cases the Home Office is never required to justify its decision to deprive an individual of their liberty.

The Government states that immigration detention “would most usually be appropriate:

  • To effect removal;
  • Initially to establish a person’s identity or basis of claim; or
  • Where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release” 4.

 
The current government position on immigration detention in the UK is that “detention is used sparingly and for the shortest period necessary”. However, in a number of cases, this does not often happen. Instructions to immigration officers to this effect carry no practical compulsion and have failed to prevent the Home Office from employing administrative detention for prolonged periods during the resolution of a case. It can be said that the use of detention is not restricted to those shortly to be removed.

The use of immigration detention is increasing and the government considers it to be central to asylum and immigration policy. The Five Year Strategy for asylum and immigration published by the Home Office on 7th February 20056 set out plans to “… move towards the point where it becomes the norm that those who fail can be detained”. On 19th May 2008 the Home Office announced plans for expansion of the immigration detention estate by up to sixty percent to enable the removal of more detainees and at a faster rate.

Immigration Removal Centers (IRCs) are mainly used to detain people who are awaiting decisions on their asylum claims or who are being forcibly removed from the UK following an unsuccessful asylum application. People may be detained when attending interviews with the Home Office or at a police station when they attend to comply with weekly or monthly reporting requirements. Others may be detained after they are discovered to be living or working in the UK without permission.
 

Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

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