IMMIGRATION DETENTION

Under immigration law in the UK, the UK Border Agency is empowered to detain non-British citizens - either to prevent a person's unlawful entry to the UK, or in order to remove a person from the UK.

This general power is subject to UK Border Agency policy and guidance, which sets out constraints on its use and procedures that are to be followed.  It is also constrained by a general requirement in law that the power to detain must be exercised in a way that it is lawful, and according to a lawful process. Key points of principle in relation to the power to detain include:

• Detention must be for one of the two main purposes identified above;
• Detention is a last resort.  If it is not necessary to detain in order to achieve either of these purposes, a person should not be detained;
• Detention is to be for the shortest possible time.  There is no fixed time limit in immigration detention.  Also, the key issue is not how long has a person been in detention, but how much longer may a person be in detention in order to achieve either of the two purposes identified above;
• Someone who is detained should be given written reasons for their detention;
• A person's detention should be kept under review, and if detention is continued then further written reasons should be supplied to explain why it is still considered necessary to continue detention.

UK Border Agency policy sets out factors that must be taken into account in considering whether to detain or whether to continue detention.  It also sets out that certain people are normally considered unsuitable for detention.  If the UK Border Agency fails to act in accordance with its own policy then it may be possible to challenge the lawfulness of the detention.

IMMIGRATION BAIL

Anyone who is detained in immigration detention and has been in the UK for 7 days can apply to an Immigration Judge for bail (release on conditions).

The burden is on the UK Border Agency to demonstrate to the Judge why detention continues to be necessary; the Judge then decides whether a detainee would be likely to abscond if released and whether bail should be refused or granted.  If bail is granted, the Judge usually attaches conditions to the terms of release which require the detainee to live at a certain address, to report regularly to the immigration authorities, to be electronically tagged or to have sureties who put down money which could be lost if the detainee absconds.

If the Judge refuses bail, the detainee is able to apply again every 28 days or sooner if they can make fresh arguments about why they should be released.

CONTACT US

For advice and assistance with challenging the lawfulness of detention or applying for immigration bail, call our immigration barristers direct on 0203 617 9173 or e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it