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04 June 2020

Understanding immigration detention in the UK

9 mins

Anyone subject to UK immigration control can be detained by UK Visas and Immigration (UKVI). Below, we answer some frequently asked questions on being detained in the UK, and the ways to get out of detention. 

Can I be detained by the Home Office? 

Anyone subject to UK immigration control can be detained by immigration officers working for UK Visas and Immigration, a division of the Home Office responsible for the UK’s immigration system. A person ‘subject to UK immigration control’ means anyone who requires leave to enter or remain in the UK. 

Where will I be detained?

  • A decision to detain someone usually takes place on their arrival to the UK, while attending a reporting centre, after attending an appointment (such as an asylum screening interview), or at the conclusion of a criminal sentence. Those detained under immigration powers are usually in Immigration Removal Centres (IRCs), of which there are seven in the UK. 
  • Those who are serving a criminal custodial sentence can be detained under immigration powers and held in the prison where they have been serving their sentence. It is possible to request a transfer to an IRC.   

For what reasons can the Home Office detain me?

Detention is normally used in the following circumstances:

  • To effect a person’s removal from the UK.
  • To establish a person’s identity or the basis of their claim.
  • Where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail.

In all cases, UKVI must act in accordance with the following core principles:

  • There is always a presumption in favour of release (i.e. a grant of bail). This means that you should normally be granted immigration bail unless the particular circumstances of your case justify detention.
  • All reasonable alternatives to detention must be considered before detention is authorised
  • Each case must be considered on its individual merits, including consideration of UKVI’s duty to have regard to the need to safeguard and promote the welfare of any children affected by their decision.

I have been convicted of a criminal offence. Am I more likely to be detained?

  • The presumption in favour of release still applies, but UKVI will need to consider whether there is a risk to the public of harm from re-offending, or a risk of absconding that outweighs the presumption. UKVI will take into account the seriousness of your offending and whether there is a risk of reoffending or absconding when making a decision. 
  • In all cases, UKVI may only detain you for a ‘reasonable period,’ as described above. 

How long can I be detained for?

  • There is no limit on the length of time for which you may be detained (except in the case of pregnant women and children – see below). Each case will be assessed on its own merits but detention, in all cases, can only be for a ‘reasonable period.’ What determines whether a period will be reasonable will turn on the facts of each case.
  • 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 (below). 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. See below for more information about bail. 
  • In all non-criminal cases, detention must be reviewed by the UKVI after 24 hours, seven days, 14 days and then every month from the date of detention. In criminal cases (i.e. those cases involving deportation decision after conviction of a criminal offence), detention must be reviewed every month. 

I am pregnant. Can I still be detained?

Yes. However, there are limitations in relation to detaining pregnant women. UKVI may only detain pregnant women exceptionally, and for a maximum of 72 hours, which is extendable by a further seven days if authorised by a government minister. It is important, therefore, that you make UKVI aware if you are pregnant. 

I am under 18 years old. Can I still be detained?

Yes, you can, but only as part of a family group where UKVI is seeking to remove your family from the UK under the Family Returns Process. The use of immigration detention in these cases should be a ‘last resort’ and stays are limited to 72 hours duration, which is extendable by a further seven days if authorised by a government minister. 

Are there any other exceptional categories?

Certain adults with serious medical conditions will be considered ‘adults at risk’ in detention. UKVI has a policy that deals with these particular detainees and, depending on the supporting evidence that is provided about the condition and the impact that detention could have, this policy increases the threshold for justifying detention beyond the usual cases. 

How can I get out of detention?

Anyone who has been in the UK for at least seven days can apply for bail. 

There are three ways to be released:

1. 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 ten 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). 

2. 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 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.   

3. 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?

While every case will turn on its own facts, it usually helps to have, for example:

  • 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).
  • An address where you can live when you are released.

If you are not currently in detention and have a reporting requirement, it is important that you continue to report when required as failure to do so can and likely will be counted against you if you are detained in the future. 

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.

The Secretary of State also has the power to provide people with accommodation where there are ‘exceptional circumstances’ to justify doing so. In general, this will be in the following cases:

  • Involving people who have been assessed by Her Majesty’s Prison and Probation Service as being at a high or very high risk of causing serious harm to the public.
  • Involving people who have been assessed as posing a high risk of harmful reoffending against an individual.
  • Where the applicant does not have adequate accommodation and the provision of accommodation is necessary in order to avoid a breach of their rights under the European Convention on Human Rights. 
  • Involving people granted bail by the Special Immigration Appeals Commission (SIAC). 

Our Immigration, Asylum and Nationality team offer expert advice in this area. If you would like to make an enquiry, call our direct line on +44 (0)20 7014 2090, or submit an enquiry form.

How can we help you?

We are here to help. If you have any questions for us, please get in touch below.