Overview and Sources
The Home Office publishes a wide range of instructions and guidance for staff and contractors designed to enable them to carry out work related to the detention, escorting, and removal, as well as the conditions of detention and treatment of those held in administrative detention. These instructions deal with the elements of daily life in detention (for example, access to the internet in IRCs), legal procedures (the preparation by the Home Office for a bail hearing or a judicial review), and the correct use of detention powers.
The Home Office makes its policies, and instructions and guidance for staff publicly available [1]. Documents may have operationally sensitive information redacted in these publicly available versions. This section will show you where to find this guidance.
Background
Detention visitors will find that guidance and instructions to Home Office staff offers helpful background reading to understand how detention decisions should be made. It is useful to discern Home Office attitudes and the complexity of immigration enforcement work as it relates to detention and removal. Remember that - although specific actions, steps and notifications are set out in this often-extensive guidance - they may not happen when they should, or may happen at the wrong time or in the wrong format. Home Office guidance sets out what should happen, not what actually happens. This is another important reason to be aware of this guidance so that visitors can advocate for people detained by, for example, reporting procedural failures to monitoring bodies or to AVID.
Many Home Office policies and instructions governing the use of immigration detention in IRCs have been lifted from or modelled on processes and practices used in the prison estate. This has been criticised, for example, by Stephen Shaw who noted, in his final report on the review into the welfare in detention of vulnerable people, that -
"When I spoke to senior officials of the private sector contractors, a theme of our conversation was the need for Home Office policy and process to reflect what was actually required for the immigration detention estate to do its job rather than trying to transpose prison practices into a very different environment. Current policies and processes do not always distinguish the role of an IRC from that of a prison” [2]
Areas for particular cause for concern about Home Office policy or guidance include the use of segregation in IRCs, the management of age disputes in detention, medical rights, and Rule 35 (a process meant to ensure the identification and potential release from detention of victims of torture). More detail about guidance in these areas is included later in High-concern areas of Home Office policy and guidance.
From time to time, if a particular policy or piece of Home Office guidance is thought to be operating in an unfair way that harms significant numbers of people in detention, the lawfulness of that policy (or a section of it) may be challenged via the courts. There are a number of grounds on which Home Office policy or guidance can be challenged, depending on the particular policy. It may be possible to argue that the policy or instruction is a blanket policy (that it is being applied by the Home Office to an entire group of people without consideration of the facts in individual cases, making detention arbitrary for some or all members of the group); or that the effect of the application of the policy is a breach of a person’s human rights (for example aspects of a policy on detaining mentally ill detainees could breach the right not to be subjected to inhuman or degrading treatment under Art 3 ECHR).
Another type of challenge could be brought in the event that the Home Office is required - as a result of legislation - to provide a certain service or benefit but evidence suggests that it does not do so in practice, or does so only after unreasonable delay, or the hurdles to eligibility are so high as to make the benefit impossible to obtain, and people are suffering some detriment as a result.
Resource Tip
AVID member groups sometimes get involved in providing evidence for such legal challenges. You can speak to your group coordinator or to AVID directly for more information.
Sources
The Home Office updates policy and guidance documents every so often in response to new legislation or litigation. You will generally find the version number and date of publication, along with a note on which sections of the document have been revised, at the beginning or end of the document.
The Home Office may consult with relevant organisations - including AVID - when drawing up or revising its policies and guidance, but it is also possible that new policies and new versions of policies are published online with no announcement.
Some IRC management contractors operate their own additional local policies. These are not usually made publicly available but may be known to the local visitors group. Partnership agreements, Service Level Agreements, and memoranda of understanding, are designed to try to ensure the consistent and effective delivery of business plans, including services provided within IRCs [3]. These agreements shape the delivery of services and the treatment of people detained. While they are not government policy documents, they can provide useful background information on which elements of services are prioritised by contractors, for example.
The Detention Centre Rules (2001)
Short Term Holding Facility Rules (2018)
Statutory instrument. Available at: https://www.legislation.gov.uk/uksi/2018/409/contents/made
Home Office, (2002), Operating Standards manual for Immigration Service Removal Centres
Detention General Instructions
Guidance and information for Home Office staff and others dealing with matters relating to immigration detention. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1114683/Detention_General_instructions.pdf
Detention Service Orders (DSOs)
The Prison Rules (1999), Northern Ireland Prison Service Prison Rules (2010), & Scottish Prison Rules (2011)
The Prison Rules (1999)[England & Wales]
Prison Service Instructions & Probation Orders
“Foreign National” specific PSIs:
Early Removal Scheme for Foreign Nationals – Changes to Referral Process (01/2007)
The Early Removal Scheme and Release of Foreign National Prisoners (04/2013)
Release on licence for foreign national prisoners pending deportation (29/2014)
Provision of Offender Risk Information To Home Office Immigration Enforcement Regarding Foreign National Offenders Who Are Being Considered For Deportation (34/2014)
The Allocation of prisoners liable to deportation or removal from the United Kingdom (01/2015)
Immigration and Foreign Nationals in Prison (Amended Version) (21/2007)
Immigration, Repatriation and Removal Services (52/2011)
Eligibility for Open Conditions and for ROTL of Prisoners Subject to Deportation Proceedings (25/2014)
The Allocation of prisoners liable to deportation or removal from the United Kingdom (01/2015)
Useful Home Office Policies
Adults at risk in immigration detention:
There have been some rare instances of the Home Office operating secret - that is to say unpublished - policies towards people detained. See for example Adam Wagner, (23 March 2011), ‘Secret foreign nationals detention policy was “serious abuse of power”’. UK Human Rights Blog. “The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy. Two convicted prisoners were therefore unlawfully detained.” Available at https://ukhumanrightsblog.com/2011/03/23/secret-foreign-nationals-detention-policy-was-serious-abuse-of-power/
Stephen Shaw, (2016), Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office by Stephen Shaw. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/490782/52532_Shaw_Review_Accessible.pdf
See: Partnership Agreement between Home Office Immigration Enforcement NHS England Public Health England (April 2015); Ministry of Justice/NOMS & Home Office/UK Border Agency, (2011), Service Level Agreement for detention services provided by NOMS for UKBA 2011-2015; Memorandum of Understanding and Service Level Agreement between Immigration Enforcement of the Home Office And The National Council of Independent Monitoring Boards for the Home Office’s Removal Estate https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/325686/2014_04_14_DSO_Working_With_IMBs.pdf
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