Detention is the act of holding someone in official custody before they are deported or removed from the UK.
In the UK there is no time limit on how long an adult can be detained – it could be indefinite (with exceptions for pregnant women). However, according to the UK government’s policy on detention, detention is to be used for the shortest period necessary. Hence, if an individual is detained for longer than necessary, the detention will be unlawful for being incompatible with the government’s policy.
When can someone be detained?
An individual can be detained at any time that they do not have the right to remain in the UK
and if they are not waiting for a response on an immigration application. Not having the right to remain can arise in the following situations:
- Upon entry into the UK – e.g. not having valid permission to enter lawfully
- Upon claiming asylum in the UK as a Dublin safe third country case – namely, when the Home Office thinks you could have safely claimed asylum in another EEA country before travelling to the UK and so they could attempt to remove you to the ‘third’ country
- Upon claiming asylum and being appeal rights exhausted – this is when an asylum application has been rejected and either the appeal was refused, you did not appeal or did not have the right to appeal
- If you have an expired leave to remain and are not waiting for a decision on an immigration application
Who cannot be detained?
Certain groups of people should not be detained (unless exceptional circumstances arise), such as:
- Unaccompanied persons under the age of 18
Adults that may be “particularly vulnerable to harm in detention” as outlined in the Home Office 2016 policy, such as:
- Those aged 70 or over
- Pregnant women
- Those with serious physical disabilities
- Those with serious medical conditions that can only be managed outside of the detention centres
- Those suffering from serious mental illness, including PTSD
- Torture and trafficking victims
- Victims of gender or sexual based violence
- Those that are transsexual or intersex
What Is Immigration Bail?
An Immigration Bail is a request or an application either to the Chief Immigration Officer (CIO) or to the Immigration Judge for release of a person from immigration detention where person’s removal is not imminent from the UK.
Before the applicant applies for bail at Immigration Tribunal it is advisable to make an application for temporary admission to Chief Immigration Officer requesting that the applicant must be released on Temporary Admission.
If the detainee is released, they will usually be required to comply with conditions imposed by the Home Office. The usual conditions are:
1)The applicant should reside at the specified address.
2) The applicant must report to the designated police station.
3) Sureties. These conditions can be varied by an application to an Immigration Officer or Immigration Judge.
Bail Application To Immigration Judge
If the temporary admission gets rejected, then the applicant is entitled to apply for immigration bail. It should be noted that the applicant cannot apply before spending 7 days at the detention centre. The applicant needs to attend the tribunal either in person or via video link. The applicant must put forward minimum one ad maximum of two sureties. Only the person who is living legally in the UK can act as a surety. Those with criminal convictions or insecure immigration status, or whose addresses have in the past been associated with absconding, are unlikely to be accepted as sureties. The sureties should always attend court – it will rarely be the case that nonattendance will be accepted. The surety should have proof of ID, address, occupation, financial status, immigration status (ideally British citizenship/Indefinite leave to remain) and evidence of the address that is available to the detainee.
Remember at the bail hearing that the burden of proof in justifying detention lies, given the presumption in favour of bail, on the Secretary of State to the balance of probabilities. The adjudicator should give a reasoned decision, albeit that it is not in writing.
If the bail applicant absconds or does not comply with conditions of bail, the sureties risk forfeiting all or part of their recognisance.