Introduction
Last updated
Last updated
This chapter of the handbook provides an overview of the legislation, detention policy and guidance which govern the use of immigration detention in the UK.
It provides an overview of domestic and international legislation for the use of immigration powers to detain people and for the process of seeking asylum in the UK and human rights. It explains the standard asylum procedure in the UK, changes to asylum legislation as well as accelerated asylum processes in the detention estate and changes to UK law following Brexit and how this might affect people in detention.
It will give you an understanding of Home Office policy and guidance on the use of detention for Home Office staff and private contractors, as well as where to find useful information. This guidance deals 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.
This table might be useful to understand the difference types of legal and policy frameworks which are referenced in this chapter:
| Legislation | Policy | Caselaw |
|---|---|---|
1. Immigration Law Practitioners’ Association, (2008), ‘How laws are made in the UK and how to influence the law-making process’.
Parliamentarians make written laws which are then enacted by the Westminster parliament, or the devolved parliament in Scotland, or assemblies in Wales and Northern Ireland (legislative bodies).
ILPA says “Primary legislation is made by Parliament, though nearly all of it emanates from Government. Secondary legislation is made by Government, but with parliamentary approval.”[1]
Acts of Parliament are primary legislation. They set out broad principles and a framework. For example, the Immigration Act 1971, introduces the power to detain but does not state where a person may be held under these powers.
Primary legislation can be amended or repealed by subsequent legislation. Primary legislation may reflect election manifesto commitments (for example to end child detention (2)).
Statutory instruments form the majority of secondary legislation and are used to provide detail that would be too complex to include in an Act. The Detention Centre Rules 2001 and the Immigration Rules are statutory instruments.
Civil servants interpret legislation and political instructions and either turn them into new policies or revise existing policies.
Policies address in fine detail how powers set out in legislation are to be exercised by the government (e.g. SSHD) or its agents (IRC management companies).
Policies should, in theory, take account of available resources so that the planned actions offer a realistic and viable way of addressing the policy needs. In practice however this is difficult to achieve.
Policies are expressed in the form of guidance, instructions, orders, and so on. For example, Home Office Detention General Instructions (guidance for Home Office staff responsible for making initial detention decisions and decisions to maintain detention or release about Home Office policy on the use of immigration detention) or Detention Service Orders (procedures to be followed inside detention centres).
The courts interpret sources of law (legislation, common law) with reference to the facts in a particular case.
If legislation or guidance is unclear or silent on a particular point, legal challenges may be brought in order to get clarification. The set of rulings which generate new interpretations of law is called caselaw. Cases decided by the higher courts are binding on all lower courts.
For example, a number of cases were brought before the courts after 2010 so as to challenge a revised Home Office policy on the detention of mentally ill people.
Caselaw is a dynamic, constantly developing body of law.
The Home Office may be required to revise a specific policy found to be operating unlawfully. The resulting policy may not be drastically different, or a new way may be found to achieve the same end if this is politically important.
