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
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