People considered unsuitable for detention
Children
For many years the Home Office used immigration powers to detain as many as one thousand children each year, alongside their parents, including very young children and babies. The Immigration Act 2014 introduced restrictions on the detention of unaccompanied children (i.e. children who are alone) to short-term holding facilities and introduced a 24-hour time limit. In the Immigration Act 2014, the detention of unaccompanied children is subject to the following conditions:
“The first condition is that: (a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or (b) a decision on whether or not to give directions is likely to result in such directions. The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.”
Children detained with one or both parents can be held for a maximum of 72 hours but may, in exceptional circumstances and subject to Ministerial authority, be detained for up to a total of seven days. A Family Returns Model, overseen by an Independent Family Returns Panel, was introduced as part of these reforms (see also Family Returns Process).
These reforms significantly reduced the number of children entering detention from thousands to below 100. However, the introduction of the Illegal Migration Act 2023 has disregarded these safeguards on the detention of children. Much of The Illegal Migration Act is not in force. The Duty to Remove (not in force) sets out to remove anyone who arrived in the UK via an irregular route on or after the date which these provisions come into force. Anyone to whom this applies, including children, is subject to immigration detention without first-tribunal bail for the first 28 days. The duty to remove applies to unaccompanied children only in limited circumstances. And, unaccompanied children can be granted bail after 8 days in limited circumstances. The Act disapplies the duty to consult with the family returns panel. To reiterate, this is not yet in force although it is important for visitors and visitor groups to prepare for an increase in the number of children being detained if it does come into force. You can read more about the Illegal Migration Act in Immigration Detention in the UK: Essential Legislation, Policy and Guidance.
Unaccompanied children can also be subjected to immigration detention if the Home Office believes that they are ‘significantly over 18 years old’ and the child or young person cannot prove otherwise. You can read more about the legislation and age disputes process in this section of the handbook: Age disputed children.
Pregnant Women
In 2016, a seventy-two hour time limit on the detention of pregnant women was introduced by the Home Office, extendable to up to a week with ministerial authorisation. This resulted in the number of pregnant women falling from 99 in 2014, to just 7 in 2021. Organisations in the sector, led by Women for Refugee Women, successfully advocated for the time limit to remain in the Illegal Migration Act.
It is possible that women will enter detention not knowing that they are pregnant. Women should be offered a pregnancy test during their screening on arrival. However, this is not routinely taken. Visitors play an important role in making women aware of their rights and explaining how pregnancy will affect their detention.
At Risk Groups
After the Hardial Singh Principles, the Adults at Risk Policy (AAR) is the main restriction placed on the use of immigration detention [1]. The policy was introduced in 2016 following the publication of the Shaw Review into the Welfare in Detention of Vulnerable People (2016) and the recommendation to strengthen safeguards which prevent the impact of continued detention on a persons mental health. It sets out the mechanism by which someone is identified as vulnerable in detention in order to assess the impact of their ongoing detention. This can result in release from detention in certain circumstances although the policy has come under mounting criticism from people in detention, visitor groups and others working in the sector for failing at every stage, from failing to identify risk of harm to this harm being inadequately recognised by Home Office officials.
Nonetheless, it is important for visitors to have an understanding of this policy, given that people in detention will need to navigate it to be identified and accepted as being vulnerable or having particular support needs; to access support in detention; or better still to get out of detention.
The Adults at Risk Policy sets out a number of “indicators of risk” that someone in detention may be particularly vulnerable to harm. This is a non-exhaustive list and the policy also states that officials should be conscious of other conditions or experiences that make someone in detention vulnerable to harm.
There are other groups with recognised vulnerabilities which are not on this list. For example, other LGBQ+ people are not recognised by this policy despite unique risks of harm which they face [2]. It is also important to recognise the limits of expanding the above list and a category-based approach. AVID have long advocated for a holistic approach to vulnerability which recognises the dynamic nature of vulnerability and how this can change over time in detention [3].
The Adults at Risk policy requires that people in detention are able to offer evidence to the Home Office of their ‘at risk’ status in order that their vulnerability can offer any mitigation against their detention or ongoing detention. While a visible pregnancy and documented age are easy to evidence, for other conditions or experiences recognised in this policy the requirements for evidence are related more to credibility of the individual’s account.
Evidence of risk is balanced against immigration factors to determine the status of someone's ongoing detention. As stated in an extract from Adults at Risk in Immigration Detention, Home Office policy document, September 2016:
“Once an individual has been identified as being at risk, by virtue of them exhibiting an indicator of risk, consideration should be given to the level of evidence available in support, and the weight that should be afforded to the evidence, in order to assess the likely risk of harm to the individual if detained for the period identified as necessary to effect their removal”.
The policy offers little, if any, safeguards to the detained population who have served a criminal sentence. Public interest in the deportation of offenders, regardless of the gravity of their offending history, is deemed to outweigh any concerns over the risk of harm to vulnerable individuals through continued detention. Even for non-offenders, the Adults at Risk policy does not offer any absolute prohibitions on the use of detention if ‘immigration factors’ are considered to override vulnerability risk factors, which must be evidenced by the individual.
You can find details of the Adults at Risk policy, Rule 35 and criticisms of these policies in the chapter Safeguards.
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