Detention under the Immigration Acts in Scotland

Introduction

Detention as concerns asylum seekers has been defined by the UNHCR in its 'Revised Guidelines on the Detention of Asylum Seekers' (UNHCR Detention Guidelines), as:

'Confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory.'

The European Union's current definition is slightly different but would appear to be similar for all intents and purposes in relation to detention under the Immigration Acts in Scotland.

The term 'child', according to the Convention on the Rights of the Child (CRC), includes:

'Every human being below the age of eighteen years, unless under the law applicable to the child majority is attained earlier.'

This paper will seek only to directly review the position of children who have been or still are asylum-seekers (the majority of this text, however, also applies to adults, except the parts clearly specifically aimed at children). Plainly, asylum-seekers are those who have sought protection in the UK on the basis of the UK’s obligations under the Convention relating to the Status of Refugees (Refugee Convention), the UK’s primary obligation being non-refoulement.

Currently in Scotland there is only one Immigration Removal Centre. This is called Dungavel.

Detention of asylum-seekers, as noted by the UNHCR, whatever their age is:

'Inherently undesirable. This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs.'

The general principle is that asylum-seekers should not be detained. This is amplified with reference to the CRC in Guideline 6. It is quite clear that that the CRC has not as yet been fully implemented.

There is a presumption in favour of liberty in the common law in Scotland. This is a UK wide presumption, and is to be applied to all, irrespective of nationality. Any act or omission which denies liberty must therefore have a firm footing in law.

Detention - law and policy

When an asylum claim is made, the individual will be subjected to an initial 'screening interview'. The applicant is held by the immigration authorities for the purposes of conducting this interview and in most circumstances this could be seen as a form of detention, even if only for a few hours. The screening interview is used to verify identity, mode of travel to the UK, and whether a claim has been made 'as soon as reasonably practicable'. A decision will then be made as to whether or not to grant the applicant temporary admission. Temporary admission is not a form of immigration status. It is a form of conditional permission to enter the UK granted mostly to asylum-seekers, but is not exclusive to them. A form is served upon the applicant (IS96) which indicates the address at which the applicant is to reside, advises of a ban on employment, and contains directions to report to an Immigration Officer at a specified date, time and place.

Alternatively, the applicant and their dependants may be detained. Detention can also be imposed upon persons who had previously been granted temporary admission. For the purposes of this paper only detention in Dungavel is relevant.

Statutory powers

An Immigration Officer, or the Secretary of State, although this will usually be a representative of his, has the power to detain certain persons subject to immigration control. Detention must be lawful or is subject to challenge.

The 1971 Act permits detention in the following circumstances:

  1. On arrival, pending examination to establish if leave to enter should be granted;
  2. On arrival with leave to enter, having had that leave suspended after examination and pending completion of the examination and decision to cancel leave;
  3. After refusal of leave to enter where there are reasonable grounds for suspecting that the individual may be issued removal directions;
  4. On entering illegally, or being suspected of being an illegal entrant, pending a decision to issue removal directions or removal in pursuance of such directions;
  5. Having limited leave to enter or remain and failing to observe a condition attached or staying beyond the period of Leave, or having obtained leave by deception or being reasonably suspected of such, either pending a decision to remove or pending the act of removal. Being a family member of someone in this category.

There are other powers in respect of persons to be deported as opposed to removed. Deportation is essentially used in relation to those convicted of a criminal offence or whose continued presence in the UK is deemed not to be conducive to the public good. Removal (full term 'Administrative Removal') has replaced deportation as the method through which asylum-seekers are ejected from the UK.

Home Office policy

The immigration statutes have been supplemented by the Immigration Service’s Operational Enforcement Manual (OEM), which gives guidance and policy in respect of all aspects of the Immigration Service’s operational areas. Chapters 38 and 39 of the OEM relate to detention/temporary release and bail respectively.

Detention is, according to the OEM, to be used sparingly and as an effective use of the Detention Estate. Effectively this means that, in most cases, it is usually more appropriate to effect detention later in the process, such as when all appeals procedures have been exhausted.

The OEM reflects the policy disclosed in the 1998 White Paper 'Fairer, Faster, Firmer – A Modern Approach to Immigration and Asylum' that detention should usually be used only to effect removal, initially to establish a person’s identity or basis of claim, or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of Temporary Admission or release.

It further reflects the existence of the Human Rights Act, with particular reference to Articles 5 and 8 of the European Convention of Human Rights and Fundamental Freedoms 1950. It is quite probable that the system in place does generally conform to the obligations the UK has undertaken in Article 5´s qualified right to liberty and security of persons. The OEM gives clear guidance and if this is followed there should be full compliance. However, if there is a failure to provide reasons for detention, the detention could be in breach of Article 5, as well as being either unlawful or inappropriate. The system in place is broadly constructed so as to meet the minimum procedural standards thought appropriate by the UNHCR.

Article 8 is also referred to in the OEM and contains fairly accurate guidance.

It is obvious, given the presumption of liberty and the operation of Article 5 ECHR and UNHCR guideline 5, that if detention is to be effected reasons must be given for the detention. That too is reflected in the OEM. The decision to detain should be taken only after considering the appropriate factors and detailed reasons for the detention given. There is provision for ongoing review of detention, in keeping with the UNHCR guidelines.

Most pertinent are those parts of the OEM which deal with children. Children can be split into three categories in terms of the OEM:

  1. Unaccompanied minors, who, the manual states, should only ever be detained 'in the most exceptional circumstances and then only overnight, with appropriate care, whilst alternative arrangements for their safety are made';
  2. Persons claiming to be under 18. This can include those who have travelled on false documents which state an age over 18 or who initially claimed to be over 18, in which case their claim to be a minor will only be accepted if their appearance clearly supports their revised claim age, or medical or other persuasive evidence is produced. However, where an applicant claims that they are a minor but their appearance 'strongly suggests' that they are over 18, they are to be treated as a minor until appropriate evidence is provided. The guidance is that unless a person’s appearance strongly suggests that they are over 18, the same rules as noted in i) above should be adhered to;
  3. Children as dependants of adult asylum-seekers (families). The decision to detain an entire family is to be taken with due regard to Article 8 of the ECHR. Families can be detained in line with the general detention criteria , however there is a presumption in favour of temporary release and detention should only be effected if is just in all the circumstances.

Temporary admission (TA) and temporary release (TR)

Anyone held in detention can be released either by the Immigration Services or the Secretary of State. TA and TR are granted to different categories of people. Where an individual has not yet received a decision on whether they should be granted leave to Enter the UK, TA is appropriate and can be granted if the decision-maker thinks it justified. TR is appropriate in the case of those who have been refused leave to enter or who have overstayed their period leave to remain, and can be granted again if the decision-maker sees fit.

Any application for either TA or TR should contain the following:

  1. a request for the reasons for detention (if not already disclosed);
  2. the factors set out in the OEM that support the applicant’s case—for example settled family life or an outstanding appeal that are an incentive to keep in contact with the immigration authorities;
  3. any factors that indicate that the applicant should not have been detained, for example, ill-health or a history of torture or rape (see OEM guidelines on those who should not be detained);
  4. any factors that make it less likely the applicant will abscond, such as children in school, regular medical appointments, disability, etc;
  5. details of the address that the applicant will be released to including, if appropriate, the connection between the applicant and the address provider;
  6. alternatives to detention that would be appropriate and that the applicant would accept, such as regular reporting to a police station.

If TA/TR is refused, the applicant can apply again at any time, but there requires to be a change in circumstances before it is likely to be granted.

Bail

Once detained, a person can apply for bail under para 22 of Schedule 2 of the Immigration Act 1971 (as amended by the Asylum and Immigration Act 1996 and the Immigration and Asylum Act 1999). Bail can be granted by a Chief Immigration Officer (CIO), a police officer not below the rank of inspector, or an adjudicator. Bail will be granted on the applicant’s bail bond, with conditions imposed obliging the applicant to report on a specified date and other similar restrictions.

A) CIO’s Bail - CIO’s bail is discussed under section 39.6.1.1 of the OEM.

If a CIO believes a detainee is a candidate for CIO’s bail, they should 'invite' an application and stipulate the acceptable level of sureties, if applicable (the amount of an acceptable surety for the CIO depends on the means of the surety but a figure of between £2000 and £5000 has been deemed acceptable).

If a CIO decides to grant bail, he should complete and sign three copies of the applicant’s bail bond (IS99) and one of each surety’s bail bond (IS100). Faxing copies speeds the process.

One copy is given to the person entering into the bail bond, one copy is sent to the Adjudicator or Tribunal if the applicant is to appear before them, and the original is placed in the local Home Office file.

CIO’s bail can also have conditions attached to it in order to make likely the appearance of the bailed person at the required time and place. The conditions which could be imposed include reporting to Immigration services or police station on a monthly basis, a requirement to live at a particular address, or surrender of the person’s passport, if applicable. Bail, when granted, must have a set finishing date. If necessary, the applicant can apply for an extension at the appropriate time.

B) Adjudicator Bail

The procedure governing bail applications before an adjudicator is contained in Rule 34 of the Immigration and Asylum (Appeals) Procedure Rules 2000. The application can be made orally or in writing on the prescribed form which is lodged with the local Immigration Appellate Authority.

The application should include the following details:

  1. full name and date of birth of applicant;
  2. where he or she is being detained;
  3. whether an appeal is pending;
  4. a bail address;
  5. the amount of any recognizance offered (bail bond);
  6. names, addresses and occupations of 2 potential sureties (or 'cautioners') and the amounts offered;
  7. the grounds of the application;
  8. if previous application been refused, details of any change in circumstances.

The application must be 'heard' within three days of it being received by the Court, and the applicant must attend in person.

A 'bail summary' is prepared by the immigration service as soon as it receives notice that a bail application has been listed for hearing. The summary must be served by the respondent upon the applicant´s representatives by 2pm the day before the hearing is due to take place. However, if the respondent did not receive notification of the hearing until less than 24 hrs before that time, the summary should be served 'as soon as reasonably practicable'.

At the bail hearing the applicant's representative will make arguments in their favour and the Home Office presenting officer can oppose the application if they feel there are good reasons for doing so. The adjudicator requires to decide whether, in all the circumstances, the applicant is likely to abscond or breach one of the possible conditions imposed with the award of bail.

'Sureties' are often required in bail applications. Most often this is when the adjudicator cannot otherwise be satisfied that the applicant will observe the other conditions which may be imposed. Two sureties require to be located by the applicant, who agree to vouch for them by putting up an acceptable sum of money, the amount of which is based upon the sureties´ means (NB. the sum assessed as acceptable by an adjudicator is often lower than that as assessed by a CIO). This sum will be lodged with the IAA and is not returned until the bail conditions are removed. Alternatively, if the applicant breaches any of the conditions of bail, the sureties can lose their money.

The additional conditions which may be imposed on a grant of bail include a direction that the applicant must reside at a specified address and that the applicant must report regularly to a specified person. The applicant must have somewhere to reside before bail will be granted.

There is a common law presumption in favour of bail, and the Secretary of State therefore requires to show that detention is necessary to the standard of the 'balance of probabilities'.

The standard of proof to be applied by the adjudicator is that there are 'substantial grounds for believing' that the applicant would fail to abide by the bail conditions.

Once bail is granted by the adjudicator, the conditions imposed continue until the applicant is:

  1. re-detained by an immigration officer for breach or likely breach of a condition upon which bail was granted;
  2. removed from the UK;
  3. has a successful outcome to an appeal.

In the meantime, sureties are bound by their bail bonds. The adjudicator has no statutory power to revoke bail once it has been granted.

Fast Track Processes

An important part of the government’s asylum policy is the fast tracking of asylum claims which can be decided quickly. The current fast track processes are the Harmondsworth and Yarls Wood fast tracks and also the Non-Suspensive Appeals process.

  1. Harmondsworth and Yarls Wood Fast Tracks:
    • Harmondsworth Fast Track process is based at the Harmondsworth removal centre near Heathrow airport in London. It presently has 200 beds for male detainees. The Yarls Wood Fast Track is based in Bedfordshire and has 80 beds for female detainees.
    • People who have made asylum claims and are placed under one of these processes, have an in-country right of appeal against refusal of their claim.
    • With the purpose of determining the claim quickly, the average timescale involved in these processes is one month from the date of making the claim to removal from the UK. This includes any appeal.
  2. The Non-Suspensive Appeals Process:
    • Section 94(4) of the ‘Nationality, Immigration & Asylum Act’ 2002 provides a list of countries from which asylum or human rights claims are to be certified as ‘clearly unfounded’ unless the claimant is able to satisfy the Secretary of State otherwise.
    • The countries currently on the list are as follows: Albania; Bolivia; Brazil; Bulgaria; Ecuador; Ghana (males only); India; Jamaica; Macedonia; Moldova; Mongolia; Nigeria (males only); Romania; Serbia; South Africa; Sri Lanka; Ukraine.
    • In considering the asylum application of a person from one of these countries, the Secretary of State is required to assess whether the claim is ‘clearly unfounded’. If he concludes that it is, he is required to certify the claim.
    • When an asylum claim has been certified, the claimant can only appeal the refusal after they have left the UK. This is called a ‘non-suspensive’ appeal.
    • It should be noted that each claim is assessed on its own merits. It is therefore not the position that every claim from individuals originating from one of the listed countries will be refused and certified. Equally, the Secretary of State has the power to certify any asylum claim, ie. not just those on the list, if he believes they are ‘clearly unfounded’.

The majority of claimants who are placed on one of the fast track processes remain in detention while their asylum application is being considered. If a claimant is detained under one of these processes, they are likely to remain in detention until the claim and appeal process is concluded, ie. until they are either removed or granted some form of status in the UK.

There is, however, an element of flexibility in the fast track processes. The Secretary of State has the discretion to extend the length of time afforded to consideration of a case. This could be, for example, where a representative indicates that more time is required to obtain important evidence, or if a claimant becomes unwell etc. There is also scope to remove cases from the fast track processes altogether, if it is clear that it is not possible to fully determine the case with the required degree of fairness within the fast track timescales. In these situations, the applicant will usually be released from detention, unless there are other compelling reasons why they should remain detained.