Detention

When can you be detained?

If you do not have the right to remain in the UK, you can be detained at any time, but there are some points in the asylum and immigration process when it is more likely to happen:

• When you first enter the UK
• When you claim asylum, if the Home Office categorises your case as a Dublin safe third country case (this means you have had your biometrics taken in another EU country). This will usually happen after your screening interview.
• if you have claimed asylum, been refused and you are “appeal rights exhausted”. This means after you have been refused and either have appealed to the First-tier Tribunal and lost your appeal; or if you did not take the opportunity to appeal; or if you did not have the right to appeal. Remember – this is a Home Office term and you may in fact have legal options/further appeals available to you.
• if you do not have any immigration status or applications pending and you are picked up by an immigration enforcement team.

It is common for someone at risk of detention to be picked up when they go for their regular reporting/signing appointment.

People are also picked up from their homes (sometimes in dawn raids), during immigration raids on businesses, and stop-and-searches at train and bus stations.

Where are people held?

The UK is one of the largest users of detention in Europe. People are detained in detention centres known as ‘Immigration Removal Centres’ (IRCs), Short-Term Holding Facilities (STHFs) and prisons.
The Home Office contracts out the management of detention facilities to private providers, and to the Prison Service.

How long are people held?

The majority of those in detention will be held for less than two months. However the UK is the only country in Europe that doesn’t have a time limit on detention and some people can be held for years.
In all cases, after four months of detention, UKVI must refer a detainee to the First-tier Tribunal automatically, to be considered for immigration bail. If the detainee has submitted an application for Tribunal bail before this point, the four months is calculated from the date the Tribunal last considered an application for bail.

In all non-criminal cases, detention must be reviewed by the UKVI after 24 hours, 7 days, 14 days and then every month from the date of detention. In criminal cases (i.e. those cases involving deportation decisions after conviction of a criminal offence), detention must be reviewed every month.

Not everyone can be legally detained - The Home Office’s “Adults at Risk in Immigration Detention” policy sets out the conditions or experiences which will indicate that a person may be “particularly vulnerable to harm in detention”:

• suffering from a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition)
• having been a victim of torture
• having been a victim of sexual or gender-based violence, including female genital mutilation
• having been a victim of human trafficking or modern slavery
• suffering from post-traumatic stress disorder (which may or may not be related to one of the above experiences)
• being pregnant
• suffering from a serious physical disability
• suffering from other serious physical health conditions or illnesses
• being aged 70 or over
• being a transsexual or intersex person.

Someone falling under one of these categories does not guarantee exemption.
The policy states that detention for people “at risk” could “become appropriate at the point at which immigration control considerations outweigh that presumption. Within this context it will remain appropriate to detain individuals at risk if it is necessary in order to remove them.”

You are also likely to need to provide independent evidence of falling within some of these categories, such as if you are a survivor of torture, trafficking or sexual/gender-based violence. This is particularly the case if being part of one of these categories forms a central part of your asylum claim as the Home Office may not want to accept your identity if it could mean they would have to grant your asylum claim.

If you have been detained despite being in one of these categories, you may need a “Rule 35” report. Rule 35 requires detention centre doctors to report to the Home Office “any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.” If you think this is the case for you, you should speak to a lawyer and/or contact the organisation Medical Justice.

In addition to the categories of adults at risk listed above, unaccompanied minors should also not be detained, apart from in exceptional circumstances (though sometimes children are wrongly detained by the Home Office, because the Home Office classifies them as adults). Children can be detained as part of a family group when the Home Office is seeking to remove the whole family under the Family Returns process. Family groups can be held for 72 hours, which is extendable by a further 7 days if authorised by a government Minister.

Pregnant women can be detained for a maximum of 72 hours, which is extendable by a further 7 days if authorised by a government Minister. It is important, therefore, that you make UKVI aware if you are pregnant.

What to do if you are at risk of being detained

You should have a list of emergency contacts, and someone else should have a copy. These might include your lawyer’s number (and your case reference number the lawyer uses in letters to you), any close friends or family, people you have spoken to about caring for children in case of detention, doctors or hospitals if you have a medical condition. You might want to keep this list taped inside your phone cover.

Have copies of your documents. If you are detained, it may become impossible for you to access your documents if they are in your home. This means that vital evidence that a lawyer or a friend/supporter needs can’t be reached. You should have a copy of all your documents, not just your lawyer. Give a copy of these documents to someone you trust. Scan and email yourself copies of your important legal documents, so that you can access them if you are detained. If you haven’t got an email address, ask someone to help you to set one up in advance.

If you are on medication, take this with you when you go to report/sign at the Home Office. You should be able to keep this with you if you are detained, though you will be issued with new medication once you are detained. Also take your prescription for the medication with you, and if possible, a letter from your doctor explaining why you need it and why it should not be restricted or changed.

If possible, give a friend a copy of your house/room key. If you are detained, they can go and get essential things for you from your house. This may not be possible, for example if you are living in asylum accommodation. Only give a key to someone you trust, and make sure you are allowed to do this under your accommodation rules. Alternatively, give a consent letter in advance to a friend giving permission to access your room in asylum accommodation if you are detained. This consent letter is also useful so that a friend can contact your lawyer on your behalf.

Your phone will probably be taken off you when you are detained. Keep your important numbers written down. If it’s possible to still use your own sim card, it’s a good idea to have saved important numbers to the sim card beforehand (rather than to your phone handset) so the numbers will be still available in the replacement phone. If you have a smartphone, the sim card is unlikely to work in the detention centre device.

Legal Options if you are detained - Detention does not mean your case is over, in 2018 only 44% of people detained were removed from the UK, which means that 56% of those detained were released. However the people working in the detention centre will not usually provide good legal advice.
If you are detained, there can be big difficulties in accessing the legal advice you need to challenge your detention and/or progress your legal case.

There are three ways to be released: 1) ‘Secretary of State’ Bail, 2) ‘Tribunal’ Bail, and 3) A judicial review of your detention. Anyone who has been in the UK for at least seven days can apply for bail.
Secretary of State Bail (‘SSHD bail’)

You can apply for SSHD bail by sending the Home Office a form called Form 401. The application is considered by a Home Office decision-maker, rather than a judge. A decision is made by reviewing the papers and must be made within 10 working days of the application being made. If the application is successful, you will be released and normally required to adhere to certain conditions, such as reporting (attending a Home Office building on a regular basis) and/or staying at a particular address (see more about the potential conditions below).

Tribunal Bail

You can apply to the First-tier Tribunal (Immigration and Asylum Chamber) to be released on bail. Applications for bail are sent in writing to the Tribunal. A bail hearing will then take place, at which a judge will decide whether or not to grant bail. The Home Office is usually represented by a Home Office Presenting Officer and will normally oppose the application. If you have a lawyer, that lawyer will represent you at the hearing. If not, you can represent yourself. If bail is granted, you will be released with conditions (as mentioned above). If bail is refused, the judge will give reasons. You will remain in detention and will not be permitted to apply for Tribunal Bail again for 28 days, unless there has been a substantial change of circumstances.

Judicial Review

Judicial Review is a type of legal proceeding where a High Court judge, reviews the lawfulness of the Home Office’s decision to detain. One of the available remedies that can be sought is an order of immediate release on bail. Again, the release will usually be subject to conditions.

Can I get legal aid for a bail application?

Legal aid is available for advice and representation in relation to detention and bail applications, subject to you meeting the means (income and capital) requirements.
What kind of things can be done to improve my chances of getting bail?
Every case is different but it usually helps to have:
(1) Financial Condition Support (where you or someone else agrees to pay a sum of money if you fail to comply with a condition of your bail), and/or (2) an address where you can live when you are released.

What bail conditions can be set?

The potential conditions of a grant of bail are as follows:

• Appearance date condition – requiring the person to appeal before the Secretary of State or Tribunal at a specified time and place;
• Activities condition – restricting work, occupation or studies in the UK;
• Reporting condition – requiring the person to report the Secretary of State or another person;
• Electronic monitoring condition – recording and detecting a person’s presence at a location at specific times.
• Residence condition – restricting where a person is to reside.
• Financial condition – requiring payment of a sum of money from a “financial condition supporter” as mentioned above.
• Such other conditions as the person granting immigration bail thinks fit.

Can I be granted bail even if I don’t have an address?

If you are an asylum seeker or your asylum case has been refused and any appeal dismissed you are entitled to apply for accommodation under the Immigration and Asylum Act 1999 if you do not have adequate accommodation or the means of obtaining it.

Useful contacts if you are detained:- -

Avid - They have a volunteer visitor group at every single detention facility in the UK. Each week, volunteers visit these otherwise inaccessible facilities.
BiD (Bail for immirgatipn Detainees) - Their website has a lot of information on applying for immiagration bail, all the documents are available in multiple languages.