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- Immigration detention is the practice by the government of locking people in detention centres while their immigration status is resolved. It is a form of administrative detention, not criminal justice or punishment. However, conditions in immigration detention mirror those of a prison.
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- About this guidance
- Policy
- Power to detain
- Decisions to detain
- Levels of authority for detention
- Detention forms
- Detention procedures
- The Detention Gatekeeper
- Detention reviews and Case Progression Panels
Contacts
If you have any questions about the guidance and your line manager or senior caseworker cannot help you or you think that the guidance has factual errors then email Detention Policy. If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then you can email the Guidance Rules and Forms team.
Publication
Below is information on when this version of the guidance was published: version 3.0 published for Home Office staff on 28 September 2023
Changes from last version of this guidance
This guidance has been amended to reflect the commencement on 28 September 2023 of section 12 of the Illegal Migration Act 2023 which places two of the four immigration detention principles set out in R(Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB) on a statutory footing. The principal change is contained in the section entitled “Article 5 of the European Convention on Human Rights (ECHR) and domestic caselaw”. There have also been some minor clarifications to the sections on the use of detention and power to detain. Further changes are: the list of countries with which the UK has bilateral consular conventions relating to detention has been updated to reflect updates to the FCO list clarifications have been made to Criteria for Detention in prison
General
The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used (see Bail). Detention is most usually appropriate: to effect removal initially to establish a person’s identity or basis of claim where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy. As well as the presumption in favour of immigration bail, special consideration must be given to family cases where it is proposed to detain one or more family member and the family includes children under the age of 18 (please see family returns process). Similarly, special consideration must be given when it is proposed to detain unaccompanied children pending their hand-over to a local authority or collection by parents or relatives or by other appropriate adult carers or friends, or to escort such children when removing them. Section 55 of the Borders, Citizenship and Immigration Act 2009 (s.55) requires certain Home Office functions to be carried out having regard to the need to safeguard and promote the welfare of children in the UK. Staff must therefore ensure they have regard to this need when taking decisions on detention involving or impacting on children under the age of 18 and must be able to demonstrate that this has happened, for example by recording the factors they have taken into account. Staff must also ensure detention is for the shortest possible period of time. Key arrangements for safeguarding and promoting the welfare of children are set out in the Statutory Guidance issued under s.55. A properly evidenced and fully justified explanation of the reasoning behind the decision to detain must be retained on file in all cases.
Foreign National Offender Returns Command cases
Cases concerning foreign national offenders, dealt with by the Foreign National Offender Returns Command (FNO RC), are subject to the general policy set out above, including the presumption in favour of immigration bail and the special consideration in cases involving children. Thus, the starting point in these cases remains that the person must be granted immigration bail unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the ‘deportation criteria’) are met, the risk of re-offending and the particular risk of absconding must be weighed against the presumption in favour of immigration bail. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of immigration bail is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding. Deportation criteria Foreign nationals and their dependants will be considered for deportation if they meet the criteria set out in Non Conducive Deportation or Public Policy, Public Security or Public Health Decisions. Further details of the policy which applies to FNO Returns Command cases is set out below.
Use of detention
General Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process, for example once any rights of appeal have been exhausted if that is likely to be protracted and/or there are no other factors present arguing more strongly in favour of detention. All other things being equal, a person who has an appeal pending or representations outstanding might have relatively more incentive to comply with any restrictions imposed, if released, than one who does not and is imminently removable (see also: Detention for the purpose of removal). Foreign National Offender Returns Command cases As has been set out above, due to the clear imperative to protect the public from harm, the risk of re-offending or absconding must be weighed against the presumption in favour of immigration bail in cases where the deportation criteria are met. In cases concerning foreign national offenders (FNOs), if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, an FNO will be detained until either deportation occurs, the FNO wins their appeal against deportation (see Detention after an appeal has been allowed for decisions which we are challenging), bail is granted by the Immigration and Asylum Chamber, or it is considered that Secretary of State immigration bail is appropriate because there are relevant factors which mean further detention would be unlawful (see Further guidance on deciding to detain in Foreign National Offender Returns Command cases). In looking at the types of factors which might make further detention unlawful, case owners must have regard to limitations on statutory powers, factors influencing decision to detain, special cases and Adults at risk. Substantial weight must be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is more serious, the weight which must be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of granting immigration bail. In cases involving these serious offences, therefore, a decision to grant immigration bail is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, immigration bail is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that granting immigration bail might represent to the family and the public.
The power to detain an illegal entrant, seaman deserter, port removal or a person liable to administrative removal (or someone suspected to be such a person) is in paragraph 16(2) of Schedule 2 to the 1971 Act (as applied by section 10(7) of the Immigration and Asylum Act 1999). Paragraph 16(2) states:
‘If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10 or 12 to 14, that person may be detained under the authority of an immigration officer pending a) a decision whether or not to give such directions; b) his removal in pursuance of such directions.’
The power to authorise the detention of a person who may be required to submit to examination, or further examination under paragraph 2 or 2A of Schedule 2 to the 1971 Act, pending their examination and pending a decision to give or refuse them leave to enter or cancel their leave to enter, is in paragraph 16(1) and (1A) of Schedule 2 to the 1971 Act. There is also a limited power to detain a person who is subject to further examination on embarking from the UK for up to 12 hours only pending the completion of the examination under paragraph 16(1B). These powers are not relevant to enforcement cases.
Section 62 of the Nationality, Immigration and Asylum Act 2002 introduced a free- standing power for the Secretary of State (i.e. an official acting on the Secretary of State’s behalf) to authorise detention in cases where the Secretary of State has the power to set removal directions.
The power to detain a person who is subject to deportation action is set out in paragraph 2 of Schedule 3 to the 1971 Act, and section 36 of the UK Borders Act 2007 (automatic deportation). This includes those whose deportation has been recommended by a court pending the making of a deportation order, those who have been served with a notice of intention to deport pending the making of a deportation order, those who are being considered for automatic deportation or pending the making of a deportation order as required by the automatic deportation provisions, and those who are the subject of a deportation order pending removal. Detention in these circumstances must be authorised at a minimum of higher executive officer (HEO) level in FNO Returns Command (see Authority to detain persons subject to deportation action by Foreign National Offender Returns Command).
Detention can only lawfully be exercised under these provisions where there is a realistic prospect of removal within a reasonable period. Following changes introduced by the Illegal Migration Act 2023, it is for the Secretary of State, rather than the courts, to determine what is a reasonable period to detain an individual for the specific statutory purpose (for example, to enable the examination, decision, removal or directions to be carried out, made or given), subject to any statutory limitations on the period of detention where relevant. The decision to detain may have been taken under circumstances where an individual claimed to have a family life in the UK but there was no information reasonably available to allow independent verification or consideration. In such cases, information must be gathered as soon as possible, and consideration given at the initial and subsequent detention reviews.
Decision to detain excluding criminal case work cases
When making a decision to detain the following points must be considered: there is a presumption in favour of granting immigration bail - there must be strong grounds for believing that a person will not comply with conditions of immigration bail for detention to be justified all reasonable alternatives to detention must be considered before detention is authorised each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of any children involved please also refer to the guidance in Detention of pregnant women, and in Adults at risk in immigration detention
Decision to detain – Foreign National Offender Returns Command cases
As has been set out above, public protection is a key consideration underpinning our detention policy. Where a foreign national offender meets the criteria for consideration of deportation, the presumption in favour of granting immigration bail may well be outweighed by the risk to the public of harm from re-offending or the risk of absconding, evidenced by a past history of lack of respect for the law. However, detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate. Decisions to detain or maintain detention must also comply with the guidance in Detention of pregnant women, and in Adults at risk in immigration detention. In assessing what is reasonably necessary and proportionate in any individual case, the caseworker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, the Home Office distinguishes between more and less serious offences. More serious offences A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result, the high risk of public harm carries particularly substantial weight when assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion that such a person must be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Caseworkers must balance against the increased risk, including the particular risk to the public from re-offending and the risk of absconding in the individual case, the types of factors normally considered in non-FNO detention cases. For example, if the person is mentally ill or if there is a possibly disproportionate impact on any dependent child under the age of 18 from continued detention. Caseworkers are reminded that what constitutes a ‘reasonable period’ for these purposes may last longer than in non-criminal cases, or in less serious criminal cases, particularly given the need to protect the public from serious criminals due for deportation. Less serious offences To help caseworkers to determine the point where it is no longer lawful to detain, a set of criteria are applied which seek to identify, in broad terms, the types of cases where continued detention is likely to become unlawful sooner rather than later by identifying those who pose the lowest risk to the public and the lowest risk of absconding. These provide guidance, but all the specific facts of each individual case still need to be assessed carefully by the caseworker. As explained above, where the person has been convicted of a serious offence, the risk of harm to the public through re-offending and risk of absconding are given substantial emphasis and weight. While these factors remain important in assessing whether detention is reasonably necessary where a person has been convicted of a less serious offence, they are given less emphasis than where the offence is more serious, when balanced against other relevant factors. Again, the types of other relevant factors include those normally considered in non- FNO detention cases, for example, whether the person is mentally ill or whether their release is vital to the welfare of child dependants.
Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including: What is the likelihood of the person being removed and, if so, after what timescale? Is there any evidence of previous absconding? Is there any evidence of a previous failure to comply with conditions of immigration bail (or, formerly, temporary admission or release)? Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry). Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave). What are the person’s ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the person in detention? Does the person have a settled address and/or employment? What are the individual’s expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also Detention for the purpose of removal). Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)? Is the subject under 18? Is the subject an adult at risk? See the separate guidance in Adults at risk in immigration detention For further information, see also: Further guidance on deciding to detain in criminal casework cases detention procedures special cases adults at risk Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
Although the power in law to detain an illegal entrant rests with the immigration officer (IO), or the relevant non-warranted immigration caseworker under the authority of the Secretary of State, in practice, an officer of at least chief immigration officer (CIO) rank, or a HEO caseworker, must give authority. Detention must then be reviewed at regular intervals (see Detention reviews). For cases involving the separation of a family refer to family separations.
The minimum level of authority to release an individual from detention is HEO/CIO. This does not prevent operational areas from increasing the minimum level if appropriate.
Written reasons for detention must be given to all detained individuals at the time of initial detention.
Thereafter people in immigration removal centres must be given further written reasons for their detention at monthly intervals (in this context, every 28 days). People in short-term holding facilities (residential STHFs or holding rooms) must be given further written reasons following any review of their detention which takes place whilst they remain detained in an STHF.
Procedures when detaining an illegal entrant or person served with notice of administrative removal
You must: obtain the appropriate authority to detain issue BAIL 403 (Immigration Bail Information) and advise the person of their right to apply for bail conduct ‘risk assessment’ procedures as detailed in section above about IS91RA Risk Assessment form complete IS91 in full for the detaining authority complete and serve form IS91R on the person being detained, explaining its contents to the person (via an interpreter if necessary) confirm detention to DEPMU as soon as possible and they will allocate a reference number complete IS93 for the port or immigration compliance and enforcement (ICE) team casework file always attach a ‘detained’ flag, securely stapled, to the port or ICE team casework file review detention as appropriate
The Detention Gatekeeper (DGK) was introduced in June 2016 following the acceptance of Recommendation 20 of the Stephen Shaw review into the Welfare in Detention of Vulnerable Persons in January 2016.
From September 2016, the DGK operated as a Home Office immigration system function, working independently of both referring operational teams (for example Border Force, Immigration Compliance and Enforcement & others) and detained casework teams (National Returns Command, Foreign National Offenders Return Command and others) to ensure individuals only enter immigration detention where detention is for a lawful purpose and is considered to be a proportionate measure on the facts of the case. The team provides an independent and consistent application of the general detention and Adults at Risk in Immigration Detention Policies.
If the DGK is not satisfied that detention is lawful and proportionate, a referral can be rejected or returned for further information. This includes recommending pre- planning the removal of an individual, if there is evidence that detention would be injurious to their health making their return complex.
The team:
•provides an element of independence into the detention decision making process
•considers whether the decision to detain is both lawful and appropriate at the time it is taken
Initial detention must be authorised by a CIO or HEO, or inspector or SEO (but see Levels of authority for detention). In all cases of persons detained solely under Immigration Act powers, continued detention must as a minimum be reviewed at the points specified in the appropriate table below. At each review, robust and formally documented consideration must be given to the removability of the person in detention. Furthermore, robust and formally documented consideration must be given to all other information relevant to the decision to detain.
Rule 9 of the Detention Centre Rules 2001 sets out the statutory requirement for people to be provided with written reasons for detention at the time of their initial detention and thereafter monthly (in this context “monthly” means every 28 days). The written reasons for continued detention at the one month point and beyond should be based on the outcome of the review of detention.
Reviews of detention should be conducted using the Detention and Casework Progression Review (DCPR) form, as detailed in the DCPR Operational Guidance. Additional reviews, also using the DCPR form, may also be necessary on an ad hoc basis, for example, where there is a change in circumstances relevant to the reasons for detention. Individuals in IRCs, hospitals, prisons/remand centres or Young Offender Institutions should be informed of the outcome of monthly reviews of detention using form IS 151F.
Rule 12 of the Short-term Holding Facility Rules 2018 sets out the statutory requirement for people in short-term holding facilities (STHFs) to be provided with written reasons for their detention at the time of their initial detention and thereafter following any subsequent review of their detention. This includes any reviews of detention taking place at the 24-hour review stage (all cases except those managed by FNO Returns Command), as well as any ad hoc review of detention taking place whilst the individual remains detained in an STHF. Individuals must be informed of the outcome of any such detention reviews using form IS 151F (STHF).
Where detention involves or impacts on children under the age of 18, reviewing officers must have received training in children’s issues (at least Tier 1 of Keeping Children Safe) and must demonstrably have regard to the need to safeguard and promote the welfare of children.
Apart from the statutory requirement above, detention must also be reviewed during the initial stages. This does not apply in FNO Returns Command cases where people come from prison, or remain there on completion of custodial sentence, and their personal circumstances have already been taken into account by the Home Office when the original decision to detain was made.
Sep 12, 2018 · Detainees are held in Immigration Removal Centres (IRCs) which are separate to prisons and short-term holding facilities. There are 11 IRCs across the UK. Most are managed by private sector companies; two are operated by the Prison Service.
- Terry McGuinness, Melanie Gower, Georgina Sturge, Hannah Wilkins
- 2018
What are immigration removal centres? Immigration removal centres are holding centres for foreign nationals awaiting decisions on their asylum claims or awaiting deportation following a failed application.
Immigration detention is the practice by the government of locking people in detention centres while their immigration status is resolved. It is a form of administrative detention, not criminal justice or punishment. However, conditions in immigration detention mirror those of a prison.
Dec 9, 2021 · Places of Detention. 3. Subject to paragraph 4 below, the places where a person may be detained under paragraph 16 (1), (IA), (1B) or (2) of Schedule 2 to the Act [footnote 14] (detention of...
Nov 2, 2022 · This briefing provides data on immigration detention in the UK, including the number of detainees, their characteristics, and lengths of detention. The Migration Observatory informs debates on international migration and public policy.
