UK legislation on asylum and detention

The Immigration Act 1971 provides the authority for the use of detention powers pending entry or removal to/from the UK.

Immigration control and the asylum system have been the subject of prolific legislation by successive UK governments in recent years, especially after the numbers of people seeking sanctuary increased in the 1990s and 2000s, and when immigration detention began to be used as a management tool in the UK asylum system. Subsequent legislation has resulted in further amendments and additions to The Immigration Act 1971, for example, on the use of detention for children and families (Immigration Act 2014), provisions relating to immigration bail (Immigration Act 2016) and most recently the expansion of powers to detain under the Illegal Migration Act 2023.

Key pieces of legislation and the resulting provisions, including the source of powers to detain for administrative purposes under immigration powers, are set out below. It’s not necessary to read all of this to inform your visiting, but you may find it useful.

You should be aware that provisions listed may not have been enacted, may have been repealed, or may have been amended by subsequent legislation. Home Office policy and practice arising out of legislation may have been subject to successful legal challenge and subsequently abandoned.

Immigration Act 1971	- Provided for a general scheme of immigration control, establishing who could come into the UK and under what circumstances. - Provided authority for the use of detention powers in relation to the administrative acts of examination, removal or deportation. - Provided for the making of deportation orders, and the right of appeal against immigration decisions. - Provided for the granting of immigration bail and set out statutory restrictions on the grant of bail. NB: The Immigration Act 1971 does not deal with asylum, but the rules made under the Act indicate that the UK's obligations under the Refugee Convention 1951 must be taken into account.
Asylum & Immigration Appeals Act 1993	“The 1993 Act was introduced to deal with a sharp increase in the number of those seeking asylum in the UK (from 3,998 in 1988 to 44,840 in 1991) by streamlining procedures and ensuring "the rapid rejection of a large number of unfounded claims””[1] - Established a statutory scheme for asylum determination and appeal, defining a claim for asylum in terms of the UK’s obligations under the Refugee Convention 1951 and the 1967 Protocol. - Introduced accelerated and fast track appeals procedures for claims certified as being “without foundation”. These were mostly third country cases where it was considered that the ability to return the applicant meant “there was no obligation to consider [the] case”[2] - Introduced the right for the Secretary of State for the Home Department (Home Secretary or SSHD) to detain refused asylum seekers pending their removal.
Immigration & Asylum Act 1996	- Widened the scope of the accelerated asylum appeals procedure. - Extended the ability to certify an asylum claim as “without foundation” if it related to a country which the SSHD had decided posed “in general no serious risk of persecution”. This “White List” of countries initially included Bulgaria, Cyprus, Ghana, India, Pakistan, Poland, and Romania. - Removed the right to cash benefits from ‘in-country’ asylum applicants and applicants appealing a negative decision. Introduced new criminal law provisions and powers of search and arrest, and financial and custodial penalties relating to immigration offences, including obtaining leave to enter or remain by deception.
Human Rights Act 1998	- Incorporated the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. Opened a route for challenges to a breach of human rights law to be heard in a UK court rather than before the European Court of Human Rights.
Immigration & Asylum Act 1999	- Introduced the ‘one-stop’ asylum procedure and the principle of ‘one stop' appeals. - Set up the National Asylum Support Service (NASS) and the dispersal of asylum seekers to accommodation around the UK. - Removed any remaining benefit entitlement from asylum seekers and introduced a voucher system for asylum seekers arriving in the UK. Prohibited asylum seekers from working to support themselves. - Gave the Secretary of State the power to provide facilities for accommodation to a person released from detention on bail or given Temporary Admission, whether or not they have ever claimed asylum via what became known as a ‘Section 4 bail address’, or ‘Section 4 support’. - Required the SSHD to arrange for ‘automatic bail hearings’ for certain detainees before the eighth and thirty sixth day of detention. These provisions were never enacted, and were repealed in the Immigration & Asylum Act 2002.
Nationality, Immigration & Asylum Act 2002	- Introduced an obligation on the SSHD to certify asylum and human rights claims where they are ‘clearly unfounded’, withdrawing the right to appeal while the applicant remained in the UK, under a process known as Non-Suspensive Appeals (NSA). Allowed the Home Office to withdraw support for in-country applicants who did not apply for asylum ‘as soon as is reasonably practicable’. In 2004 the Court of Appeal found that the policy breached Art 3 of the ECHR. - Extended the power to detain, meaning an asylum seeker can be detained at any time during their application, not just prior to removal. - Allowed for detention centres to be known instead as removal centres.
Asylum and Immigration (Treatment of Claimants, etc) Act 2004	- Set out additional types of case where asylum seekers can be sent to safe third countries without their case being considered in the UK. - Introduced a range of provisions on accommodation for refused asylum seekers. - Introduced a new offence of refusal to cooperate with the authorities to obtain new travel or identity documents (s35 offence), and an offence of entering the UK without a valid identity document without good reason. - Set out that a detained person does not qualify for the National - - Minimum Wage “in respect of work which he does in pursuance of removal centre rules.” - Introduced provisions governing the use of electronic monitoring as a condition of immigration bail.
Immigration, Asylum & Nationality Act 2006	- Allowed the SSHD to certify that a person is not entitled to protection under the Refugee Convention if they are deemed to have carried out or encouraged or induced others to carry out acts including committing, preparing or instigating terrorism.
UK Borders Act 2007	- Set out conditions and procedures for the ‘automatic’ deportation of non-EEA “foreign national offenders” convicted in the UK to a custodial sentence(s) of 12 months or more. So named because the Act removed the discretion of the SSHD over whether to deport “foreign criminals” convicted in the UK of a qualifying offence, with some exceptions.
Criminal Justice & Immigration Act 2008	- Amended s33(6) of the UK Borders Act 2007 (automatic deportation exceptions), adding an exception to comply with the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings. - Introduced measures on the repatriation of foreign criminals, eligibility for the Early Removal Scheme for foreign national prisoners and amended the Criminal Justice Act 1991 to provide for eligibility of foreign national prisoners liable to removal from the UK to have their cases considered by the Parole Board for early release on licence.
Borders, Citizenship & Immigration Act 2009	- s55 imposed a statutory duty on the SSHD, and hence the Home Office and its private contractors, to safeguard and promote the welfare of children in the UK. Critics pointed out that the new duty was incompatible with the continued detention of children for immigration purposes.
Legal Aid, Sentencing and Punishment of Offenders Act 2012	- LASPO heralded a new approach to defining the scope of legal aid. Under LASPO a legal matter was out of scope of legal aid unless specifically included in Schedule 1 of the Act. Whole categories of law were removed from the scope of legal aid using this Act. Under LASPO, legal aid is now not available for general immigration matters, including preparing, presenting, and engaging on a claim/case before the Home Office, and any appeal against a negative outcome. This generally includes deportation cases. - Asylum claims, immigration bail applications, and claims by victims of trafficking for LTE or LTR (though not the initial decision under the National Referral Mechanism) remained in scope post-LASPO. - While the fact of detention (loss of liberty) remained in scope of legal aid, there is now no legal aid for the underlying substantive immigration case which landed the person in detention, greatly limiting what lawyers can do. - A provision for Exceptional Case Funding was set up to grant a right to civil legal aid for any out-of-scope matter where an exceptional case determination [‘ECD’] is made.
Immigration Act 2014	On the detention of children and families: - The Act created a legislative basis for changes to government policy on child detention by setting a time limit on child detention in law. - Required that Pre-Departure Accommodation for families (The Cedars) to be used for detained children and their families for not more than 72 hours (or not more than 7 days if authorised by a minister). - Required that in every family returns case, and where a family with minor children are going to be detained, the Home Office Family Returns Panel must be consulted. - Introduced restrictions on the detention of unaccompanied children in short term holding facilities. The Act limited the independence of the Tribunal in bail decisions by: - Requiring SSHD’s consent in the event that the immigration tribunal grants release on bail where removal directions are in force and removal is to take place within 14 days of the bail hearing. - Requiring Tribunal Procedure Rules to be changed so that if a person applies for bail within 28 days of having been unsuccessful the Tribunal must dismiss the application without a hearing, unless the applicant can demonstrate a material change in their circumstances. The Act also introduced provisions intended to create a hostile environment in the UK for undocumented migrants, including a prohibition on entering into residential tenancy agreements, on opening a UK bank account, and on applying for or continuing to hold a UK driving licence.
Immigration Act 2016	- Required the SSHD to issue guidance on the detention of “particularly vulnerable” people. - Introduced conditions for the detention of pregnant women, including a time limit of 72 hours (seven days if authorised at ministerial level). - Provided for a new type of immigration bail to replace both Temporary Admission and existing immigration bail, as they were set out in IA 1971. CIO bail abolished. - Introduced a new power for the SSHD to grant bail, with associated conditions, to a person who is ‘liable to detention’, whether or not they are currently in detention, and even if the person can no longer lawfully be detained. - New duty on SSHD to “arrange consideration of bail” in the form of a reference to the tribunal within 4 months of the start of detention, or the last time the tribunal considered a bail application for the person. The duty does not apply if the person is detained with a view to deportation. - New power for SSHD to re-detain someone granted immigration bail by the Tribunal. - New provisions on the use of electronic monitoring, including the removal of discretion for the Tribunal over whether or not to impose a tagging condition. - New powers of arrest without warrant of bailees where there are reasonable grounds for believing the person has failed/is failing to comply with a bail condition or will in the future fail to comply. - New provisions for recovering financial conditions (sureties) in the event of a breach of bail conditions via an order from the county court/sheriff court. - The right of appeal against refusal of asylum support is abolished for people who have no current protection claim and no outstanding further submissions. - There is no power to provide support to a person who has never claimed asylum even if the person cannot be removed from the UK. - Tightening of eligibility for support for refused asylum seekers with children, conditional on genuine obstacles to leaving the UK and attempts to remove.
Nationality and Borders Act 2022	- Allows for differential treatment of asylum seekers based on how they entered the UK in regard to accommodation and routes to settlement (this has now been paused by the government). - Certain asylum claims can be deemed inadmissible on the basis that asylum seekers can be removed to a safe third country. Allows decision makers (including Home Office officials and judges) to take into account “relevant behaviour” when assessing credibility such as providing evidence late in connection to a claim. - Decision-makers are also empowered to have regard to the principle that minimal weight should be given to late evidence unless there are good reasons why it was provided late. - Introduces the “accelerated detained appeals” process which enables the Home Office to certify certain claims allowing them to be decided within a short timescale. - Key principles of asylum law are reformulated. One example is that past persecution now has to be assessed on a balance of probabilities, leaving only future risk to be assessed to a lower standard i.e. a reasonable degree of likelihood. Previously both past and future persecution were assessed to the lower standard. - The Home Office has the final say in respect of age assessments over local authorities and can conduct age assessments itself. - Increased the penalty for people convicted of illegal entry or residence, if the offence took place on or after 28 June 2022, from a maximum of 6 months in prison to a maximum of 12 months or 4 years in prison (if the case goes to the Crown Court). - Amendments made to the definition of “a particularly serious crime” which is now defined as one which attracts a sentence of at least 12 months.
Illegal Migration Act 2023	It is important to note that the vast majority of this Act is not yet in force. - Sets out the duty to remove anyone who arrived in the UK via an irregular route on or after the date which on which this section comes into force (this date was changed from 20th July 2023 following an amendment to the regulations from the Labour Home Secretary). Anyone to whom this applies, including children, is subject to immigration detention for the first 28 days. Unaccompanied children can apply for bail after 8 days in limited circumstances such as when they have not yet received a removal decision. - People to whom this applies, including those who passed through or entered the UK from a country where they were not at risk of persecution cannot be granted leave to enter or remain in the UK. - There are new `immigration offences including where individuals disembark a vehicle after being put there in order to be removed. Captains also commit an offence if they knowingly allow someone to disembark in the UK. - There is a discretion to remove children from the UK in certain circumstances such as to reunite them with a parent or where the child is a national of a designated safe country as defined under s.80AA of the Nationality, Immigration and Asylum Act 2002. Unaccompanied children can also be detained in certain circumstances. They can be granted bail after 8 days in limited circumstances. - The duty to consult with the Independent Family Returns Panel is removed. - Compelling circumstances will be required to establish that a trafficked person needs to stay in the UK to cooperate with an investigation or criminal proceedings. Those who have experienced modern slavery will have less protections enabling them to stay in the UK. For example, if they are deemed to be a threat to public order or have made a claim in “bad faith,” they can be denied leave to remain. - Courts and tribunals may not grant interim relief preventing or delaying removal. If the European Court of Human Rights grants interim relief, then a Minister can decide not to remove them. If they choose not to, the ECtHR’s decision may be disregarded. - Age assessments cannot be appealed and those attempting to challenge them via Judicial Review may be removed whilst the challenge is ongoing. Individuals who refuse scientific age tests can face adverse consequences including by being treated as though they were an adult.
Safety of Rwanda Act 2024	- Specifies that Rwanda is a safe country and should be treated conclusively as such by courts and decisions makers. This is unaffected by international law, including for refoulement challenges. - There are exceptions (c.4(1)) – based on individual circumstances but a decision not to send someone to Rwanda cannot be made on grounds that Rwanda is generally unsafe. NB: The Safety of Rwanda Act was passed under the previous conservative government. The current labour government has ended the plans to send people seeking asylum to Rwanda and is terminating the Migration and Economic Development Partnership with Rwanda. There are therefore no outstanding effects of the Safety of Rwanda Act.

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1. Home Secretary Kenneth Baker, 2 July 1991 HC Deb vol 194 c 167

2. House of Commons Library, Research Paper 99/16 19 February 1999, Immigration and Asylum. See page 16.