The power of the Secretary of State to detain people subject to immigration control within the UK, can be found within the Immigration Act 1971 and in particular at Schedules 2 and 3 (as amended).
The circumstances whereby a person might be detained are:
The Nationality, Immigration & Asylum Act 2002, has extended these powers to include where the Home Office is deciding whether to remove a person.
Despite there being no limit on the period for which a person can be detained in the UK and the relatively wide powers, possessed by the Secretary of State, this does not mean that detention is always appropriate or lawful.
The presumption in law is in favour of liberty and any detention must be justified and considered reasonable in all of the circumstances. The basic justifications for detention are set out in Home Office guidance documents and include:
The Secretary of State must promptly provide reasons for a person’s detention at its outset and a failure to do so may render the detention unlawful (although this will not necessarily oblige their release if there are otherwise good reasons for their detention).
Following detention, regular reviews must be carried out by various officers of the Home Office and any big changes of circumstances should prompt a further review. A failure to conduct these reviews at the necessary frequency and level of seniority may render a person’s detention unlawful.
Particular categories of person may be deemed unsuitable for detention in the UK and this may include victims of torture or those considered vulnerable for other reasons.
On 15 January 2018, a new bail regime was introduced in the UK and temporary admission is no longer a route for those held in immigration detention. There have been notable developments within the law on unlawful detention, case law and policy.
At Curzon Green Solicitors, we understand that detention matters are most urgent and very distressing for all involved. We have significant experience and expertise within this area of law and seek to represent our clients in their bail applications robustly.
A new immigration bail regime was implemented on 15th January 2018. Key features are as follows:
The power to grant bail is conferred on both the Secretary of State and the First-Tier Tribunal.
The Secretary of State may grant bail even where a person is not detained but is liable to detention. There is no equivalent power for the Tribunal, which can only grant bail in situations of detention. Further, bail can now be imposed even on a person who cannot lawfully be detained (for example, because there is no realistic prospect of the person’s removal taking place within a reasonable time).
The Tribunal is no longer permitted to grant bail in any circumstances for eight days after arrival or where removal is within 14 days, marking an expansion of the Secretary of State’s power to detain.
Automatic bail hearings should be held for those who have been detained for four months and who have not applied for bail themselves or with the help of a lawyer.
Detainees are more likely to get bail if they can demonstrate that they have a place to stay and that they have at least one ‘Financial Condition Supporter’ who will attend the necessary hearings on the detainee’s behalf and guarantee payment of any financial penalties on their behalf if bail conditions are not complied with.
Immigration bail is not guaranteed, and detainees will find it harder to be granted bail conditions if they have a criminal record, if they have previously breached bail conditions or if their removal date is within 14 days of a bail application.
At Curzon Green Solicitors we are able to make bail applications and provide full advocacy in your bail application to either the Home Office or the Tribunals.
Our Immigration and Human Rights Team