Lawfulness of Detention
Successive legislation in the UK has developed a specific and wide-ranging set of purposes for which immigration detention can be used. The use of detention is also subject to Home Office policy guidance, common law limitations on the power to detain, and to limits under the European Convention on Human Rights. The next chapter of this handbook – Immigration Detention in the UK: Essential Legislation, Policy and Guidance – will take you through the legal framework for detention in more depth.
Detention may be lawful at the outset, especially given that the grounds for detention are so wide ranging, but it may become unlawful over time. The time spent in detention - or a segment of the total period - may become unreasonable and possibly unlawful, because, for example, detention was maintained despite it becoming obvious - after some time in detention - that a person could not be removed. The conditions of detention can also give rise to judgments of unlawfulness and awards of compensation. Since 2011, there have been eight cases where the High Court has found the Home Office to be in breach of Article 3 of the ECHR (prohibition of torture) [1].
Home Office general policy is that “detention must be used sparingly, and for the shortest period necessary”.
You may hear this referred to as the ‘Hardial Singh principles’. These principles take their name from an early immigration detention case in which the applicant, Hardial Singh, attempted to take his life after four months in detention. The Hardial Singh principles were further endorsed by the Supreme Court in 2011 [2] as follows:
(i) The Home Office must intend to remove or deport the person and can only use the power to detain for that purpose;
(ii) The person may only be detained for a period that is reasonable in all the circumstances;
(iii) 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;
(iv) The Home Office should act with reasonable diligence and expedition to effect removal.
These principles are broadly analogous to Article 5 of the European Convention on Human Rights.
The Illegal Migration Act 2023 changed the application of the Hardial Singh principles. Where previously it was for the courts to decide whether detention is for a reasonable period (on the basis that there is sufficient prospect of removal in a reasonable timescale), Section 12 of the Illegal Migration Act puts this decision in the hands of the Secretary of State where what is reasonable is that which “in the opinion of the Secretary of State, is reasonably necessary to enable the examination or removal to be carried out, the decision to be made, or the directions to be given”. However, the impact of this change remains to be seen as any decision made by the Secretary of State must still be compatible with Article 5 of the European Convention of Human Rights (the Right to Liberty) which is the basis of the Hardial Singh principles. You can read more about the application of the Illegal Migration Act (section 12) in Detention General Instructions.
Although there is no established timescale for what constitutes a reasonable period in all cases, the Bail Guidance for Immigration Judges (2023) applicable to Judges during immigration bail hearings recognises that three months is a substantial period of time and that imperative considerations of public safety may be needed to justify detention exceeding 6 months [2]. Again, if further provisions of the Illegal Migration Act 2023 come into force, the ability to challenge unlawful detention will be seriously compromised. For example, the Home Office intends to prevent people from being able to apply for bail or challenge their detention via judicial review until after 28 days of detention. People detained may still however be able to apply for a writ of “habeas corpus” although this is a remedy that is rarely used at present.
In order to challenge the lawfulness of detention, people detained will need a solicitor. Visitors can play a useful role in helping find a solicitor to deal with the fact of their ongoing extended detention, and group coordinators may refer people detained to public law specialists. See Legal Advice and Representation of this handbook.
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