GUIDANCE NOTE: IMMIGRATION DETENTION

(i) Detention

1. When assessing whether detention is lawful the following questions should be addressed:

i. Is there a legal basis for the detention?

ii. Is the detention compatible with Article 5 ECHR?
iii. Is the detention in accordance with domestic case law?
iv. Is the detention in accordance with the published policy?

(ii) A legal basis for detention

(a) Detention with a view to examining or pending removal

2. A person may be detained under the authority of an Immigration Officer:

i. if they arrive at a port and are required to submit to examination (usually questioning)
under paragraph 2 of Schedule 2 to the Immigration Act 1971 („the 1971 Act‟), pending
that person‟s examination and pending any decision to give or refuse leave to enter
[paragraph 16(1) of Schedule 2 to the 1971 Act];

ii. if their leave is suspended at port under paragraph 2A of the 1971 Act, pending
completion of that person‟s examination and a decision whether to cancel that leave
[paragraph 16(1A) of Schedule 2 to the 1971 Act];

iii. if required to submit to further examination (usually questioning) under paragraph 3A

of Schedule 2 to the 1971 Act, for up to 12 hours pending completion of that
examination [paragraph 16(1B) of the 1971 Act];

iv. where there are reasonable grounds to believe that they are a person in respect of
whom removal directions may be given under paragraphs 8 – 10A or paragraphs 12 –
14 of Schedule 2 to the 1971 Act pending a decision to give such directions or pending
removal in pursuance of such directions [paragraph 16(2)(a) and (b) of Schedule 2 to
the 1971 Act is extended to administrative removals by s10(7) of the Immigration and
Asylum Act 1999 („the 1999 Act‟)]

3. A person may be detained under the authority of the Secretary of State:

i. pending a decision (by SoS) whether to give removal directions under paragraph
10, 10A or 14 of Schedule 2 to the 1971 Act and pending removal pursuant to
those directions [section 62(1) of the Nationality, Immigration and Asylum Act
2002 („the 2002 Act‟)]

ii. pending examination by and/or a decision as to whether to grant leave, to

remove or to give removal directions by the SoS under section 3A of the 1971 Act
[62(2) of the 2002 Act]

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(b) Detention pending deportation

4. A person may be detained under the authority of the Secretary of State:

i. Where a court has recommended deportation, pending the making of a deportation

order following that recommendation [paragraph 2(1) of Schedule 3 to the 1971 Act]

ii. where notice of a decision to make a deportation order against them has been given,
pending the making of a deportation order [paragraph 2(2) of Schedule 3 to the 1971
Act]

iii. where a deportation order is in force against them, pending removal or departure
from the United Kingdom [paragraph 2(3) of Schedule 3 to the 1971 Act]

iv. where a person has served a period of imprisonment and the Secretary of State
considers whether the person is eligible for automatic deportation and, if he is,
pending the making of that deportation order [s36(1) UK Borders Act 2007]

5. Points to note:

 The SoS must consider if detention is appropriate under paragraph 2(1) of Schedule 3
to the 1971 Act: Vovk & Datta [2006] EWHC 3386.
 A person can be detained under paragraph 2(2) of Schedule 3 to the 1971 Act once the
Notice of Intention to deport is ready to be served – paragraph 2(4) of that Schedule.
 The SoS only has a power to detain under Schedule 3 whilst deciding whether to
deport (“thinking time”) if there is a court recommendation. Such a recommendation
is not required under s36 of the 2007 Act.

(iii) Article 5 ECHR

6. Article 5(1)(f) ECHR permits detention of a person against whom action is being taken with
a view to deportation (this includes removal). Article 5(1)(f) requires detention to be for the
purpose of deportation and for deportation to be progressing expeditiously (Chahal v UK
1996). There is no „necessity‟ requirement in article 5(1)(f) and so detention does not, for
example, need to be necessary to prevent absconding to be lawful providing it is for one of the
purposes authorised by article 5 and this is why the fast track system is lawful (Saadi v UK
2008). It is a requirement that the detention be determined by a procedure prescribed by law
(to guarantee against arbitrariness). Article 5(2) requires that a person be informed promptly
of the reasons for his detention.

7. Detention under paragraph 16(1B) of Schedule 2 to the 1971 Act (detention before
embarking from the UK) does not fall within article 5(1)(f).

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(iv) Domestic case law

8. The leading case is Hardial Singh [1983] EWHC 1 (QB) which set out the following points:

 The express power to detain under the Immigration Acts is subject to limitations.
 The person can only be detained for the purpose permitted under the particular power
e.g. pending the making of a deportation order or removal.
 The power to detain is limited to a period which is reasonably necessary for that
purpose.
 What is a reasonable period will depend on the all the circumstances.
 If it becomes apparent in the process that the purpose cannot be achieved within a
reasonable period, detention will become unlawful.
 The SSHD must exercise all reasonable expedition to take steps to effect
deportation/removal within a reasonable period of time.

9. Essentially, the court will ask itself whether the strategy or proposals being considered by
HMG offer a realistic chance of achieving, within a reasonable period of time, a lawful
removal.

10. Risk of offending on release may be pertinent in CCD cases but should not lead to an
assumption of detention. The reasonableness of the detention must be fully assessed in light
of all the circumstances of the case.

Reviews

11. Regular detention reviews must be carried out in accordance with the Detention Centre
Rules 2001 (made under the Immigration Act 1971). The Court of Appeal has accepted that
the absence of those reviews does not itself render the detention unlawful (although this is
being appealed to the House of Lords). That is because paragraph 2 of Schedule 3 to the
Immigration Act 1971 does not specify that compliance with the rules/guidance is a condition
precedent to lawful detention. However, a breach of the rules or Manual could attract other
remedies in public law, such as a declaration of non-compliance by the SSHD - SK
(Zimbabwe) v SSHD [2008] EWCA Civ 1204.

(v) The published policy

12.This can be found at chapter 55 of the Enforcement Instructions and Guidance. In particular
note that this says that detention should be used sparingly and for the shortest possible
period. Reference should be made to 55.3.1. „Factors influencing a decision to detain‟.

The policy can be found at:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/d
etentionandremovals/

Detention for reasons which are contrary to published policy will be unlawful - Nadarajah &
Amirthanathan v SSHD [2003] EWCA Civ 1768.

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(vi) Children / families

13. There are a number of additional domestic and international safeguards which must be
met when deciding to detain a family with children.

 Domestically a new statutory duty is expected to come into force in October 2009
which requires SoS and the Director of Border Revenue to make arrangements to
ensure that officials have regard to the need to safeguard and promote the welfare of
children in the UK when carrying out the department‟s functions. The duty also
requires that individuals exercising those functions have regard to guidance given as
part of those arrangements.

 Internationally there is the United Nations Convention on the Rights of the Child 1989
(„the convention‟). This is not directly binding but can and has been relied upon to
interpret ECHR rights and ambiguous legislation. Article 3 and 37 are particularly
relevant to detention. The court has previously found that there is no material
difference between Article 37(b) and UKBA‟s policy to detain only where all
reasonable alternatives are discounted and the detention is for the shortest period
possible S,C,D v SSHD 2007 EWHC 1654 (Admin). The convention can be found at:

http://www.un.org/documents/instruments/docs_en.asp

14. It is not clear how the court will interpret the new duty. Case law on the convention has
indicated that despite a child‟s interests being a primary consideration it cannot preclude
detention in all circumstances- S,C,D v SSHD 2007 EWHC 1654 (Admin). It is hoped but not
certain that the courts will take a similar stance in relation to the duty.

15. Before the position is settled UKBA are advised that when deciding whether to detain
children the relevant sections of Chapter 55 and Chapter 45 should be carefully followed and
the reasoning behind the decision carefully recorded.

(vii) Tort of false imprisonment

16. Where a claim if brought for the tort of false imprisonment the claimant must prove
imprisonment and then the defendant must prove justification: Youssef v Home Office [2004]
EWHC 1884 (QB).

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(viii) Miscellaneous

 The PACE Codes of Practice do not apply to immigration detention except for
minimum standards of treatment in custody: PACE Code C; s145 of the 1999 Act and
the Immigration (PACE Codes of Practice) Direction 2000
 Where a person is liable to detention under paragraph 16(1) or (2) of Schedule 2 to, or
paragraph 2(1) to (3) of Schedule 3 to, the 1971 Act he can instead be subject to
residence, employment or occupation restrictions or subject to a requirement to report
to the police or an IO – paragraph 21 of Schedule 2 to, and paragraph 2(5) and (6) of
Schedule 3 to, the 1971 Act.
 Electronic monitoring can be imposed on an adult who is subject to a residence
requirement or who could instead be subject to a reporting restriction: s36 of the 2004
Act.
 Electronic monitoring can also be a requirement of bail and it may or may not be a
condition of the recognizance or bail bond
 A person in immigration detention can apply for bail to the AIT or a chief
immigration. Those detained under paragraph 16 of Schedule 2 to the 1971 Act can be
released under:
o paras 22 to 25 (no appeal pending, no removal directions, surrender to IO)
o paras 29-33 (appeal pending and surrender to AIT)
o para 34 (no appeal pending and removal directions in force)
A person detained under paragraph 16(1) (pending examination) cannot be released
on bail until 7 days has elapsed since their arrival in UK.
 Where a CIO has the sole or shared power to release a person on bail under Sch 2 to
the 1971 Act or application for bail is instituted after 8 days from the date of detention
an IO can only authorise bail if he is acting on behalf of the SoS [section 68 of 1999
Act].

September 2009