Decisions to Detain
Detention must be authorised at the outset with written reasons for detention provided to the person being detained. This is in the form of a IS.91R form, served by the Home Office, which specifies the specific power under which they have been detained, the reasons for detention, and the basis on which the decision to detain was made. The five possible reasons given to people by the Home Office for their detention are:
They are considered likely to abscond.
There is insufficient reliable information to decide on whether to grant them temporary admission or release, or immigration bail under the post-Immigration Act 2016 provisions once enacted.
Their removal from the UK is imminent.
They need to be detained whilst alternative arrangements are made for their care.
Their release is not considered conducive to the public good.
The Home Office lists a number of factors which should be taken into account when deciding whether or not to detain someone (outlined in the Detention General Instructions) including insufficient close ties to make it likely the person will stay in one place, previous failure to comply with the conditions of their stay in the UK or release from detention, previous absconding, previous use of deception, insufficient evidence of identity or nationality, or being vulnerable or a young person without the care of a parent or guardian.
In addition, the Home Office is required to provide written information about their ongoing detention on a monthly basis to people detained [1,2]. This document, in the form of a letter, provides the reason for their detention on this occasion, what the Home Office considers to be the facts in their case and the rationale behind continued detention. If the person you visit is making their own bail application (see Getting out of detention), they will want to address the reasons for their continued detention in their grounds for seeking release.
The Detention Gatekeeper and Case Progression Panels (CPP) were introduced after the Shaw Review to monitor and provide accountability for decisions to detain and continued detention. The Detention Gatekeeper was introduced in June 2016 and is responsible for assessing and authorising detention. Whilst the Detention Gatekeeper operates separately from Detained Casework Teams, it is still a Home Office function and, as such, its level of independence has been questioned by advocates working with people in detention. CPPs have been in operation since February 2017 and should review the continued detention of someone detained for three months, and three months thereafter, making recommendations to the persons casework team based on the review [3]. Each CPP consists of a chair, CPP members and CPP experts, who review the basis for detention, vulnerabilities and health conditions, and case progression actions.
It is noteworthy that these reviews do not happen in person, but on papers. This is extremely frustrating for people in detention who do not recognise their situation in the written information that they are provided. Further, the poor quality of these reviews has been criticised [4] and visitor groups regularly see the same simply information repeated from one review to the next.
Subject Access Requests
It may be useful for the person detained to find out what information the Home Office is holding on their files, including their detention reviews.
Just, like anyone else, people in detention have the right to get a copy of the information that is held about them, including any information held by the Home Office. This is known as a subject access request or SAR.
This right of subject access means that a request can be made by any individual under the Data Protection Act (DPA) to any organisation processing their personal data, to provide them with copies of both paper and electronic records and related information. You should be provided with the information within 40 days. However, the Home Office routinely takes months to respond in full to SARs. If you submit a SAR on behalf of someone in detention you will need to include their written consent for you to do with the request.
The Information Commissioner’s office suggests that you include the following in your request:
your full name, address and contact telephone number; any information used by the organisation to identify or distinguish you from others of the same name (account numbers, unique ID's etc);
Precise details of the information you want, for example copies of all detention reviews between particular dates, copies of all correspondence from the Home Office.
To make a request you can use the online application form.
You can email subjectaccessrequest@homeoffice.gov.uk. Or you can send the form to Subject Access Request Unit, UK Visas and Immigration, Lunar House, 40 Wellesley Road, Croydon CR9 2BY.
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