Immigration detention and the Illegal Immigration Bill

‍This piece is based on the content of a briefing for MPs which Jed contributed to for the Immigration Law Practitioners Association (ILPA) which can be found here.

The Illegal Immigration Bill that is currently before Parliament contains controversial provisions that if enacted will expand already wide powers and erode a number of hard-fought protections for people who are particularly vulnerable to harm in immigration detention.

The current law

Existing legislation provides the Home Office with very broad statutory powers to detain people the Home Office wants to remove from the UK. The courts have decided these broad powers are subject to limits: in a series of cases dating back to 1983, they have developed the so-called Hardial Singh principles, which require the court to decide for itself whether a given period of detention is reasonable. They have also held that decisions to detain must be consistent with detention policies, in particular the Adults at Risk policy. This policy has statutory force under section 59 of the Immigration Act 2016 and is intended to ensure that people who are particularly vulnerable to being harmed by immigration detention are either not detained at all or the period they are detained is minimised.

The Immigration Act 2014 introduced restrictions on the time (maximum 7 days) and the circumstances in which certain groups can be detained: unaccompanied children, pregnant women, families. These provisions have very significantly reduced the detention of these groups, for whom detention is clearly inappropriate and, in many cases, will breach international human rights standards. Other than these limited exceptions, there is no statutory immigration detention time limit in the UK.

People in immigration detention can seek release from immigration detention by: applying for bail from the Home Office or First-tier Tribunal Immigration and Asylum Chamber; applying to the High Court for judicial review (e.g. because their detention breaches the Hardial Singh principles and/or the Home Office’s detention policies); and applying to the High Court for a writ of habeas corpus. People who have been detained in the past can bring claims for damages in the County Court or High Court after their release.

Changes that would be made by the Illegal Immigration Bill

Clauses 11-14 of the Illegal Immigration Bill would make fundamental changes to the statutory regime for immigration detention.

Clause 11

Clause 11(2) and 11(6) introduce new discretionary powers to detain people who are or may be subject to a new duty (clause 2) on the Home Secretary to remove migrants who arrive in the UK illegally. Existing powers of detention could be used for this purpose (e.g. para 16(2) to Schedule 2 of the 1971 Act) and new powers would not be required were it not for the Government’s wish to restrict the ability to challenge the initial 28 day period of detention.

The new powers would enable the Home Secretary to detain unaccompanied minors pending a decision on whether to grant them leave to remain. They would not be subject to the 7 day time limit and other restrictions in the 2014 Act.

Clause 11 introduces new powers to detain family members, including minor children, of people who may be subject to the removal duty. Clause 11(4) provides that there is no time limit on the detention of families in pre-departure accommodation for people detained under the new powers (under the 2014 Act there is a 7 day maximum). 

Clause 11(2) provides the Home Secretary with a much broader discretion as to where people subject to these new detention powers are detained. Presently, places of immigration detention are circumscribed by the Immigration (Places of Detention) Direction 2021 and the Short-term Holding Facility Rules. This means, for example, there is a maximum 7 day time limit for detention in police cells and short-term holding facilities. The new provision would instead allow detention anywhere the SSHD considers appropriate.

These provisions would provide the Home Secretary with very broad discretionary powers as to where asylum seekers arriving by small boat are detained and how long they are detained for. It would place the detention of children in camps such as Manston on a statutory footing.

Clause 11(11) is intended to mean that the restrictions on the detention of pregnant women in the 2014 Act do not apply to people detained under these new powers. This means that there is no time limit on the detention of pregnant women under these powers.

Clause 12

The Explanatory Notes explain that clause 12 is intended to change the long-established position in case law that the court decides for itself whether a period of immigration detention is reasonable. This change applies across the board to all detention powers and not just people detained under the new powers. This would mean, for example, that the Home Secretary would have wider powers to detain skilled migrants who accidentally overstay their visas.

Clause 12 creates specific statutory powers to detain where the Home Secretary considers that removal is no longer possible within a reasonable period of time “for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers appropriate”. Where removal is not possible within a reasonable period of time, the courts have allowed the Home Office a limited “grace period” to make practical arrangements for release. It appears that clause 12 is intended provide the Home Secretary with more discretion in this regard.

If they achieve their intended purpose, these changes will mean the Home Office may be able to continue to detain people where for example they are not pursuing removal diligently. They potentially allow the Home Office to detain people because they do not have accommodation to go to and where there are delays in making other practical arrangements for release. 

Clause 13

This clause would mean that the First-tier Tribunal is unable to grant bail to a person detained under the new powers in clause 11 for the first 28 days. 

The clause also attempts to restrict the ability of the High Court to review the legality of detention in this initial 28 day period. Presently, people can challenge their detention in judicial review proceedings in the High Court on the grounds that it breaches the Hardial Singh principles or the Home Office’s detention policies.

Clause 13 purports to restrict the High Court’s jurisdiction to situations where the Home Office acts in bad faith or “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”. 

The right to apply for habeas corpus is expressly preserved but this has traditionally been confined to limited situations where there is no power of detention. Generally, it does not assist where the complaint is that a statutory power of detention is being used unlawfully.

The purpose of clause 13 appears to make it very difficult for asylum seekers to secure their release from immigration detention during the initial 28 day period. It is a further example of the Home Office attempting to insulate decisions from scrutiny by the courts.

The Explanatory Notes say that there will still be a right to bring a claim for damages for unlawful detention. But the grounds a claim can be brought on would be restricted to those allowed by clause 13 (bad faith, fundamental breach of natural justice or human rights). 

Clause 14

This clause provides that the duty to consult with the Independent Family Returns Panel (IFRP) does not apply to removal or detention decisions covered by the new removal duty in clause 2. The Independent Family Returns Panel is designed to ensure that the best interests of children are properly taken into account when decisions to remove and detain families with children are considered. The removal of this safeguard increases the risk of these decisions being made without adequate regard to the best interests of children on an arbitrary basis.

Conclusion

Existing statutory immigration detention powers have been described in the case of Pankina as a “dramatic constitutional innovation” and “unprecedented in peacetime”. Clauses 11-14 expand these powers further and make it harder for people to challenge their use in court. A number of hard-fought protections enacted in the past decade would be diluted by clauses 11-14, notably the restrictions on the detention of unaccompanied minors, pregnant women and families.

It remains to be seen whether the courts decide that these clauses achieve what the government hopes. Clause 1 seeks to disapply the section 3 of the Human Rights Act 1998 duty to, where possible, interpret statutory provisions compatibly with human rights obligations. But it is well-established that statutory provisions concerning liberty and which restrict access to the courts must be strictly and narrowly construed.

To make use of these expanded powers, the government would need to both significantly increase detention capacity and the numbers of removals. In the absence of a returns agreement with the EU, the latter seems unlikely. It therefore seems likely that we will see a return to more detention, both in terms of numbers of detention places and the length of time people are detained.

One thing we can be sure about is that these provisions will lead to a significant amount of litigation.