Detention General Instructions
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The Home Office Detention General Instructions is a policy manual published for use by Home Office staff responsible for making decisions about immigration detention. The Home Office previously published Enforcement Instructions and Guidance (EIG) which addressed the same topics. The EIG has now been withdrawn.
The Detention General Instructions policy provides guidance on the power to detain, decisions to detain and levels of authority to detain, detention procedures, how often detention reviews should be carried out, factors influencing the decision to detain and criteria for detention in prison, among other matters. It also addresses the use of detention for people detained with criminal convictions, pregnant women, vulnerable adults termed “adults at risk” and children impacted by detention. When children are likely to be impacted by detention, staff must evidence that they have considered the impact of detention on them in accordance with the need to safeguard and promote their welfare in the UK. [1]
The Detention General Instructions policy recognises that detention should be used sparingly and for the shortest period necessary. It outlines the limitations of detention in accordance with domestic law and the European Convention of Human Rights (ECHR). These are the Hardial Singh principles, taken from an early immigration detention case. These principles are also outlined in Lawfulness of Detention. For ease of reference, these principles are:
The Home Office must intend to remove or deport the person and can only use the power to detain for that purpose;
The person may only be detained for a period that is reasonable in all the circumstances;
If, before the expiry of the reasonable period, it becomes apparent that the Home Office will not be able to remove the person within a reasonable period, it should not seek to exercise the power to detain;
The Home Office should act with reasonable diligence and expedition to effect removal.
The Detention General Instructions were updated on 28th September 2023 when section 12 of the Illegal Migration Act 2023 came into force. Section 12 permits detention for a period that the Home Office considers “reasonably necessary” in order to make a decision on an individual’s removal or to actually remove them. Section 12 applies to all detention purposes (not just people who are impacted by the other provisions of the Illegal Migration Act). This impacts the third and fourth principles outlined above and make it such that:
“It is for the Secretary of State, rather than the courts, to determine what is a reasonable period of detention in order to enable the specific statutory purpose to be carried out (for example, to enable the examination, decision, removal or directions to be carried out, made or given), subject to any statutory limitations. This emphasises that the Secretary of State is the primary decision maker who is in possession of all the facts surrounding a person’s detention. Therefore, in reviewing any unlawful detention claims, the Courts should approach their task by examining the reasonableness of the Secretary of State’s assessment, rather than by substituting their own assessment of the reasonableness of a period of detention.” Extract from the Detention General Instructions (page 9 and 10).
This section of the Detention General Instructions is useful reading to understand how the Home Office see’s this change introduced by the IMA affecting previously applied principles on detention. As this change takes more effect, what is “reasonably necessary” is likely to be subject to legal challenges which scrutinise the Secretary of States assessment of what is reasonable.
Section 55 of the Borders, Citizenship and Immigration Act 2009 requires certain Home Office functions (including the power to detain) to be carried out having regard to the need to safeguard and promote the welfare of the children in the UK. Statutory Guidance on the s.55 duty titled, “Every Child Matters” was published in 2009 and is still applicable:
