The main legal basis for detention comes from the 1971 Immigration Act, which allows administrative detention by immigration officers without reference to the judiciary and without a defined time limit. UK Border Agency guidance8 sets out the circumstances in which immigration staff can detain people, and this includes a requirement to detain for the shortest period necessary, primarily to effect removal of people that UKBA does not believe will leave voluntarily. The UK remains one of the few countries in Europe that applies no limit to the length of detention for adults, though guidance to judges suggests that six months is a ‘long’ period9. The majority of other European Union member states are signatories to the EU Returns Directive, which limits immigration detention to six months to achieve removal, extendable in exceptional circumstances by up to a further 12 months. This directive is not considered to be particularly liberal, as it allows for substantial deprivation of liberty without routine judicial oversight10. In fact, most countries have now set limits of under 18 months for detention including, for example, France (one and a half months), the Netherlands (one and a half months), Spain (two months) and Italy (six months). On 31 March 2012 there were just over 3,000 people in UK immigration detention centres, 42 of whom had been held for over two years11. Most were held in one of the 10 immigration removal centres (IRCs) and three residential short-term holding facilities, while some families with children were detained at the new ‘pre-departure accommodation’, which opened in 2011 and was named ‘Cedars’. While there are no regular statistics on the number of detainees held in prisons after the end of sentence, the most recent information at time of writing (September 2012) shows that a further 595 foreign nationals were held under immigration powers in prisons at the end of January 201212. The power to detain in the UK is then considerable. It is used frequently, with around 3,500 people held in prisons and detention centres in early 2012. It is exercised without judicial approval or oversight of the decision to detain. There has been particularly severe criticism by campaigning groups and statutory monitoring and inspection bodies of the way that the power has been exercised in relation to children13. Detaining children Families with children were, until 2011, held in one of three immigration removal centres — Yarl’s Wood, Tinsley House and Dungavel in Scotland. Children were also held in most of the 30 or so immigration short term holding facilities, generally at ports of entry across the country, usually for short periods of a few hours14. However, the extent of child detention has never been easy to establish. Published detention statistics give a snapshot of children in detention during each quarter but do not show cumulative length of detention, that is, the total amount of time that children are held if they are detained, released, and then detained again on at least one further occasion. Parliamentary answers to requests for such information tend to say that it would only be available at disproportionate cost. This response also avoids the embarrassment of providing unreliable figures resulting from weak data gathering systems; for example, in 2008, HM Inspectorate of Prisons found that 450 children had been held for an average of 15 days at the largest centre, Yarl’s Wood, during one recent six month period. A number of children had experienced longer cumulative detention, but the centre’s own figures on this were in some cases wildly inaccurate; the most extreme example was of children who were initially said to have been held for 275 days and were, much later, There has been particularly severe criticism by campaigning groups and statutory monitoring and inspection bodies of the way that the power has been exercised in relation to children. 8. 9. 10. 11. 12. 13. 14. 24 This is set out in chapter 55 of the UKBA’s enforcement and instruction guidance. Bail Guidance for Immigration Judges, 2011, paragraph 18. See Wilsher (note 5) for discussion. Home Office Immigration Statistics January to March 2012. These figures do not include those held under immigration powers in nonresidential short-term holding facilities, police stations or those held in prisons under immigration act powers. http://www.detentionadvice.org.uk/uploads/1/0/4/1/10410823/foi_21786_response.pdf for example, see Aynsley-Green, Al. (2010) The Children’s Commissioner for England’s follow up report to: The Arrest And Detention of Children Subject to Immigration Control. Visit to Yarl’s Wood October 2009; Bail for Immigration Detainees (2011) Last resort or first resort? Immigration Detention of Children in the UK; Crawley, H. (2006) Child first, migrant second: Ensuring that every child matters. Immigration Law Practitioners Association (ILPA) policy paper; HM Inspectorate of Prisons (2010) Report on an unannounced full follow-up inspection of Yarl’s Wood Immigration Removal Centre 9-13 November 2009. HM Inspectorate of Prisons (2011) A short thematic review of short term holding facilities: 2004-2010. Prison Service Journal Issue 205