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Deportation - Part 3: Detention

In the first entry in this series of blogs, we clarified what deportation is, how deportation procedures can be engaged, and what the Secretary of State (via the Home Office) can do to enforce their decision to deport an individual. In the second, the avenues of challenging such a decision were examined. In this third entry, we will take a look at perhaps the most controversial aspect of deportation law in England and Wales – detention.

The Power to Detain

Depending on their circumstances, an individual who has become embroiled in deportation proceedings may be detained by the Secretary of State under the Immigration Act 1971, or the UK Borders Act 2007. There are also specific provisions for EEA nationals in the Immigration (European Economic Area) Regulations 2016, which refer back to the Immigration Act 1971. Most of these individuals will have been handed a prison sentence for their offence, and will be at the point of completing the custodial part of their sentence when they are detained.

Shortly before they are due to complete their time in custody, they will have a visit from Home Office officials bearing documents. These officials will be serving a Notice of Liability to Deportation (indicating that the Secretary of State is considering their deportation and is inviting them to make representations as to why they shouldn’t be), or even their Deportation Order (when the Secretary of State has decided to deport).

In almost all circumstances, officials should serve the individual an IS91R Reasons for Detention notice at the time they are being detained. As the name suggests, this notifies the individual that they are being detained, with reasons given as to why the decision has been taken. Though there are a number of reasons the Secretary of State can give, a deportee’s IS91R will almost certainly cite criminal conduct as the reason for detention.

Failing to provide an IS91R to the individual can be a breach of Home Office guidance – specifically, Section 55.6.3 of Chapter 55 of the Enforcement Instructions and Guidance.

Detention Centres – An Overview

Once an individual has been detained, they are usually transferred to an Immigration Removal Centre. There are a number of centres in the UK, including;

  • Harmondsworth and Colnbrook (opposite Heathrow airport),
  • Brook House and Tinsley House (opposite Gatwick airport),
  • Yarl’s Wood (near Bedford), and
  • Morton Hall (near Lincoln).

These centres are run by private contractors. They resemble prisons, but differ in a few key respects. Firstly, detainees are afforded slightly more freedom than prisoners – they are given basic mobile phones, have limited internet access, and should be permitted to move around the centre for more of the day.

Secondly, deportees are housed with other individuals who, for one reason or another, do not have permission to remain in the UK. This is controversial, as some of these individuals have not committed offences serious enough to warrant a prison sentence, and others have not committed any offences at all.

IRCs have gained some notoriety in recent years. A BBC Panorama investigation in 2017 uncovered abusive practices by G4S staff at IRC Brook House. Reports of self-harm, hunger strikes and suicide in IRCs occasionally hit headlines. Crucially however, the UK is the only country in the EU that does not impose time-limits on detention. Whilst most detainees will spend a matter of weeks or a few months in detention, a small minority will be detained for much longer. A few will have been detained for two years or more.

Detention in Prisons

The guidance referred to above also sets out the circumstances in which an individual’s detention may be maintained in a prison, rather than an IRC. As per Section 55.10.1, It is presumed that;

–  individuals who are a risk to national security,

–  those have been involved in serious criminal offences,

– Those who pose a risk of serious harm to minors or specified victims

Will be detained in prison. 55.10.1 also states that sex offenders, prison escapees, those who have engaged in disorder whilst in prison or an IRC will also likely be kept in prison, as will people who are undergoing inpatient medical care in prison. For these individuals, life will continue as though their prison sentence has been extended, seriously restricting their ability to challenge their deportation.

Life in Detention

Every month, detainees should be served with a IS151F Notice, in which the Secretary of State considers whether continued detention is required in light of any developments in their matter.

Detainees should have access to legal advice and representation whilst detained. A number of law firms regularly visit detention centres to take instructions, and detainees are free to contact solicitors and Direct Access barristers for assistance.

Life in detention can prove very difficult, and it is very easy for individuals to give up even when their cases have merit. This is why it is vital they access organisations offering moral and legal support, in order to ascertain whether they can challenge their deportation and/or make an application for bail, a matter we will be examining in the next blog entry.

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