Thank you for visiting the AVID handbook and being part of a community committed to ending the suffering caused by immigration detention in the UK.

The AVID handbook is the only publication of its kind and represents our thirty year collective knowledge base on immigration detention. From what to expect when entering an immigration detention centre, accessing legal advice, detention law and policy, getting out of detention, and removal and deportation, it is an indispensable tool for anyone working with people in or at risk of detention.

We aim to keep the handbook up to date with accurate information. A small team, we greatly appreciate you taking the time to let us know if you notice information that is out of date, have suggestions for improvements or are aware of any mistakes. Please contact us on .

AVID, the Association of Visitors to Immigration Detainees, is a national network of 13 visitor groups, representing more than 300 visitors, to people in immigration detention.

We exist to reduce the immediate suffering of people in immigration detention and work towards a future without detention.

Why we exist

AVID was founded in 1994.

At that time, there were around 250 immigration detention spaces. Immigration detention was not well known, or understood. But once people heard that people were being held in their communities in prisons, or in prison conditions, for administrative reasons, there was no shortage of offers to help from local communities.

It soon became clear that visiting in detention was not easy. People in detention were isolated, anxious about what was going to happen, and the policy and legal environment was difficult to navigate. Originally formed by visitors at Winchester Prison and Haslar Immigration Removal Centre, AVID was set up to provide support, training and information and to help visitors around the country learn from each other. As a national organisation, we also began to carry out advocacy work, pushing for change on behalf of all those detained, and raising awareness of the realities of detention.

Over the years AVID has maintained a constant presence in detention. We've set up new groups as the use of detention has grown, trained thousands of volunteers, helped raise awareness of immigration detention, and been a critical voice for change throughout these years.

More recently, AVID and our members have been devastated to witness the government shift away from alternatives to detention and detention reduction - which preceded 2019 - to an increase in the use of immigration detention since 2020. This has coincided with an increase in the use of detention for people seeking asylum and the introduction of more punitive measures to meet the government’s deterrent agenda in relation to immigration.

Our thirty year history of working with local communities and people detained has provided us with insurmountable evidence of the senseless, harmful, and discriminatory nature of detention. Removal of someone’s liberty is an extreme measure and its indefinite nature has been described by people detained as “mental torture”. Revealingly, the recent found evidence of 19 instances (in a period of just four months and in one detention centre) in which there was credible evidence amounting to mistreatment contrary to Article 3 of the European Courts of Human Rights – the prohibition of torture, inhuman and degrading treatment. Instead of responding to this evidence, the safeguards that have developed to protect people in detention from harm are being shamelessly disregarded. Detention threatens to become the default option for people seeking asylum in the UK whilst the Illegal Migration Action legitimises the use of detention for as long as is deemed necessary to facilitate removal.

Visitors are an essential link in the chain to bridge the divisions which are caused and sustained by detention. Visitors play a vital role in mitigating the harm that is caused by detention. They meet with people detained to provide emotional support, be a friend, give practical advice, liaise with lawyers and signpost to other organisations who can help. Further, visitors have a unique understanding of the daily, lived realities of detention centres, which commonly operate in remote and isolated areas. However, visiting is not easy, emotionally nor practically. To fulfill their role and maximise their impact, visitors and visitor groups benefit from advice, support, and collaboration.

AVID was established in direct response to this need thirty years ago. And, for as long as detention continues in the UK, AVID will continue to work with and alongside our members to ensure these voices are heard, and that their experiences are not ignored.

What we do

Volunteer visitors are now established in every Immigration Removal Centre (IRC), and Residential Short Term Holding Facility (STHF) as well as some prisons. Many thousands of people have been supported during their detention.

We provide an ongoing programme of training, bespoke resources, and infrastructure provision to visitor groups who are members of the AVID network. An important reason visitor groups are part of our network is to be connected to other visitors and to the wider context. We provide a programme of structured-peer support, skill-sharing and cultivate a community of care. This is underpinned by our Members Charter which are seven shared values at the heart of our network. These values are: solidarity; community; anti-racism and anti-oppression; lived-experience led; independence; care and accountability; and dignity.

These values ensure that we remain connected to our longer-term vision, a future without detention. We utilise the power of our diverse network and our unique position of oversight to advocate for change. We do this by monitoring and collecting evidence on detention, engaging with the public on the realities of detention and by co-ordinating collective action and connections to key stakeholders. For far too long people with direct experience of immigration detention have been left out of the conversation and policy work. Led by our Co-Director of Policy and Influencing who also has lived immigration detention experience, our policy work amplifies collective struggles, ensuring that those directly affected drive the conversation.

You can find out more information about who we are and what we do by visiting our website at .

A major reason for visiting people in detention is to show solidarity with people detained and that we are committed to an end of detention. Through visiting, we bear witness to the system and raise awareness of it's injustices, connecting with the wider movement against detention. Visiting is also an important way to alleviate the immediate suffering of people in detention.

Detention makes people feel lonely, distressed, anxious and negatively impacts their sense of self worth.

People are usually detained miles away from their home and communities, making it very difficult for family members to visit. Travel costs are expensive, thus forcing family members and friends to weigh the options of visiting against other needs such as possible legal costs. Family members may be in the same position of limbo as the person in detention, leaving them with no possibility of visiting, as they will be unable to fulfil the legal ID checks. All of this results in additional frustration and isolation for people in detention.

The emotional and practical support provided through visiting is immeasurable. Having a visitor can make a real difference in the life of someone in detention, providing them with support and hope. It is a source of comfort for someone at a moment of extreme vulnerability in their life.

Volunteer visitors have told us too that visiting has broadened their skills and knowledge about the UK immigration system, enabled them to learn from other cultures, and helped them better understand the various reasons why people seek sanctuary in the UK. Through visiting, they are empowered to have honest conversations within their communities and amongst friends and families about the experiences of those affected by this system.

Visiting is a significant commitment that requires patience and compassion. The journey times to removal centres and prisons are often long, and registration and entry to centres can be frustrating and time-consuming too. The meeting can be difficult as the person you visit may not speak the same language as you, their experiences may have been tortuous or complicated, and they may not wish to talk about them. If they do decide to share their personal story, you may hear things that will shock or upset you, and the person who you visit may be feeling ill, anxious, or depressed.

At the same time, visitors often express humility in the face of the bravery and resilience demonstrated by people who they visit.

I suppose we don’t often think about things in this way, but if you’ve got good friends and think about what they mean to you, and then say if you meet a refugee, you realise that you’re meeting a very remarkable person, who’s coped with things that would absolutely frighten me.

Jim, Visitor,

Long term visiting is a commitment. The injustices of detention can be difficult to bear witness to, and feelings of frustration and impotence at being unable to help can lead to visitors burning out. It is important to look after your own wellbeing in this context and we discuss this later in this chapter.

However, we cannot emphasise enough the huge difference your visit can make to someone else’s life and your own too.

Most detention centres and all prisons have visiting rooms with seating areas, which are located away from the living areas or wings.

Some centres or prisons insist on particular seating arrangements, such as the person you are visiting sitting at a particular table and in a particular chair. This might be very close to other people including guards. Other centres or prisons will allow you to sit where you and the person you are visiting feel most comfortable.

You may be able to buy snacks and drinks from a vending machine, and there may be a play corner for children.The level of supervision and the ambiance will vary from one detention centre or prison to another.

Ensuring privacy

Privacy is really important for having meaningful conversations and building relationships of trust. The Detention Centre Rules state that visits should take place “out of hearing of an officer unless the Secretary of State otherwise directs”. If you or the person you are visiting is concerned that you are being overheard, you could request to move to a different location in the visits hall, although this may not be granted depending on the centre.

Each visitor group has a different recruitment process, which may involve an informal interview and the submission of character references.

Before you start visiting, your visitors group will usually provide an induction and some initial training. This might include:

• The role of a visitor

• What to expect when you visit

• Issues that people might raise with you and how you might respond

• How to take care of your own well being as a visitor

• Group processes and policies including what you can/can't do as a visitor, and what to do if you are concerned someone is at risk of immediate harm

Often groups will invite volunteers to accompany a more experienced volunteer before they do any visiting on their own.

Volunteer visitors should not ordinarily start visiting alone until they have had some basic training. AVID can deliver core training on visiting for new volunteers - contact your co-ordinator or AVID for more information.

💻 Read more about joining a local visitors groups below:

The AVID Handbook for Visitors has been produced by AVID since 1995. The need for the handbook was first identified by members of the Winchester Action Group for Asylum Seekers who wanted to assist visitors and visitors groups to expand their support in more places of detention. A handbook ‘working party’ was formed of members of other visitors groups, as well as the Jesuit Refugee Service and Detention Advisory Service. This provided the very first edition.

I - at one point - had stood bail… and I (asked him) looking at things from (a person in detentions) point of view, and what a detainee might want from a visitor, and that was incorporated into the first handbook… Non-judgmental, well-informed, listening and understanding.. and being truthful, certainly being truthful and being consistent as well.

- Audrey Atter, Founding Member of AVID

Our aim in producing the handbook is to ensure that all visitors to places of detention have access to the information they need to fulfil their roles more effectively. This means that over the year the handbook has been revised and developed to best meet the needs of volunteer visitors.

Subsequent editions have updated the original in various ways. Credit must be given to Audrey Atter (the first editor), Helen Ireland (who produced several editions), Ali McGinley, who substantively revised editions from Handbook in 2011 and Adeline Trude who updated the 2018 version of the handbook. However, the Handbook has always been a collaborative process and it is impossible to name everyone who has been involved in the various editions we have produced over the years.

About this version

For the first time, we are making our handbook available in an open source online version.

This is the outcome of our most recent strategy process and resulting strategic framework (2023 – 2025) and the findings of a 2021 research project through on how we can make our resources more accessible to members of the AVID network and volunteers.

By making our handbook open source we hope to:

• Grow direct contact with volunteer visitors in the AVID network and make information more accessible by directly linking to the handbook from our website, with no login required.

• Ensure that visitors and AVID members have access to accurate information that is kept up to date as changes to legislation and detention policy happen – responding to the rapidly changing nature of detention policy and practice - instead of in periodic cycles when the handbook is updated in one go.

• Ensure that communities who are impacted by detention outside of the AVID network – including families and friends, people in and before detention, solidarity groups working with people without a regular status in the community and other NGOs – have access to accurate information on detention.

The AVID handbook is the only publication of its kind and represents our thirty year collective knowledge base on immigration detention. From what to expect when entering an immigration detention centre, accessing legal advice, detention law and policy, getting out of detention, and removal and deportation, it is an indispensable tool for anyone working with people in or at risk of detention. Since the handbook was first published, increasingly punitive measures against immigration have seen the use of immigration detention normalised as a tool of migration management. In this context, this knowledge is more vital than ever and we are committed to making it available to all of those advocating for migrant justice.

The handbook is designed to compliment additional support provided by AVID to visitor groups. If you are using this handbook as a visitor group to people in detention and are not part of the AVID network, we encourage you to contact us about joining and additional 1:1 support.

With thanks to Araniya Kogulathas and Adam Spray who supported the AVID team to update the legal chapters of the handbook. Thank you also to the Arhag Housing Association who provided funding to go towards the development of the online version of this handbook.

Updated sections on monitoting and scrutiny in detention are coming soon! If you want to keep up-to-date with this handbook and accompanied training, please sign up for our newsletter.

Depending on your group processes, you might be required to book a visit yourself through the detention centre, or your co-ordinator may book a visit for you.

Visiting hours

Centres will have set visiting times which vary according to the centre, although they are most often in the afternoon (Derwentside and Dungavel IRCs are exceptions. Most centres have visiting hours everyday apart from Swinderby STHF which does not have weekend visiting hours.

• You can find the visiting hours of each centre by following this link -https://www.gov.uk/immigration-removal-centre.

Deciding when to visit

Discuss with the person you are visiting the best time to see them within the visiting hours available. People will be organising visits around other appointments, meal times, as well as their own preferences for meeting and it is important that they can choose a time that suits them.

How to book a visit

Visits can be made over the phone or by email. Centres will often state that you need to book visits 24 hours in advance, although there may be flexibility. You will need someone's name to be able to book a visit with them, as staff will not give the names of people in detention to visitors.

You can find the number to book a visit on the website of the centre or prison you are going to.

In order to gain entry to a centre you will need to provide proof of identity. You can find out exactly which identity documents you will need by looking on the website of the centre you are visiting.

Your fingerprint details and other biometric information taken from you on entry will be stored by the IRC management contractor. People who have been detained previously are allowed to enter detention centres as visitors.

You will be asked for the name of the person you are visiting. You may have to go through a pat down search and an electronic scan where you will have to empty your pockets and remove your shoes. The process can be slow, so make sure you arrive early enough to make time for this before your visit.

Once inside, you will usually be asked to wait in a designated area until a custody officer calls you to say that the person you are visiting is ready for you in the visits room.

The person you are visiting will be notified by a guard that they have a visitor. They are escorted into the visiting room, and will usually get a rub-down body search in a separate room prior to entering the visiting room and after they leave. Some centres may prohibit people in detention from taking their phone into the visiting room.

What personal items can I take with me?

In some centres, all personal property must be left outside, including money, the contents of your pockets as well as your mobile phone. There may be coin-operated lockers for you to leave personal property.

Some centres will allow paper and a pencil, information leaflets, or paperwork, while others do not. It is very important to follow centre regulations to maintain your right to access the visiting hall.

Check with your coordinator to find out precisely what you are allowed to take in with you.

Can I take in items for the person I am visiting?

You may be asked by the person you are visiting to bring specific items that they cannot purchase in the shop and are not provided by the centre. Shops provide a very limited range of food and toiletries, and people are provided with limited clothing.

Your visitor group will have a policy or guidance on taking items for the person you are visiting, and this should be followed carefully.

Any items bought in for someone in a detention centre or prison will undergo checks before they are passed to the recipient. There are limits to the amount (volume and/or weight) of personal belongings that people in detention centres and prisons are allowed to have in their possession and in storage. There are also tight restrictions on the type of item that can be handed in by visitors. It is important to follow these regulations as visitor groups.

Rules around what you can take to someone in detention are on the website of each centre.

Visiting for people detained in the prison estate is commonly facilitated by the Foreign National Coordinator, Equalities Officer, Diversity and Equalities Manager or an equivalent position in the relevant prison. The Co-ordinator of your visitors group will have already established the basis on which visiting at that prison will take place. This could be as a social visit (with or without a visiting order), as part of a workshop or group visit or a legal/professional visit.

Visiting arrangements vary depending on the prison and the regulations of that prison. There are different procedures for each type of visit, and local variations on visiting procedures. Privately run prisons may operate different procedures to HM Prison Service operated prisons.

Before visiting you will need to go through relevant security checks. Your coordinator will advise you on what security screening is required at the prison you visit, for example DBS and CRB checks.

Social visits & visiting orders.

Most prisons in England & Wales now allow online booking for visits without a visiting order . You will need the name, prison number and date of birth for the person you are visiting, the dates of birth for all visitors coming with you, and to make sure the person you’re visiting has added you to their visitor list. Visits need to be booked 24-48 hours in advance, depending on the prison.

Where the online booking system is not available (usually for higher security prisons), social visits require a visiting order to be sent by the person in prison to a named person. The visiting order will give you the information needed to book your visit by telephone or email. Some prisons only allow inmates to make social visit bookings. Most visitor groups channel communications, including visiting orders, through the office address, and it is strongly advised that you don’t give out your home address for this purpose.

People detained in prisons under immigration powers are entitled to be treated as unconvicted (i.e. on remand), although it is common for them to be asked to sign a waiver which allows them to be held alongside and treated as serving prisoners. Remand prisoners are entitled to receive as many social visits as they wish, within reasonable limits, while people serving a sentence have a lower entitlement. Your coordinator needs to be sure that your visit is not replacing either a visit from family or friends, or a phone call abroad (provided to people in prison who do not receive visitors.)

It is possible for family members, partners or visitors to someone who does not get other visitors to get help with the cost of prison visits, if some circumstances apply. More information and the online application form can be found here: .

You should ensure that you arrive at the prison early enough to follow the strict entry procedure. You’ll need to bring ID (generally a passport or other photo ID), and proof of your address, and the visiting order if you are visiting someone still serving their criminal sentence and have been sent one. You must leave all your personal belongings in a locker in the visitors’ centre but can take loose change to buy drinks and snacks. On entering the prison adult visitors will have their biometric information (photo and fingerprint) captured, you will be searched, and there may be additional checks including metal detectors and drug detection dogs. You will then be escorted to the visits hall, a large busy room, sometimes with play areas for children.

Legal/professional visits

The entry procedure for legal visits is essentially the same as social visits in respect of ID and personal belongings. You may be allowed to take in a pen and paper but that will depend on local policy at the prison. Legal visits cannot be restricted or denied by the prison as a punishment or removal of privileges, unlike social visits.

Visiting people detained in prisons under immigration powers

provides an overview of the use of prison for people detained under Immigration Act powers as well as some of the challenges that people who are detained in prisons face.

People detained in prison may struggle to get support and the information they need about their immigration and detention situation, especially if the Home Office does not have any onsite personnel, as is commonly the case. It is common to encounter an assumption on the part of prison staff that people held under immigration powers will be deported at the end of their custodial sentence. Prison officers commonly regard Home Office intentions towards a person as the likely final outcome and have had it impressed on them that they must not assist people detained under immigration powers with their immigration case, as this may be construed as legal advice and therefore be unlawful. As a result, they tend not to talk much to people detained about their bail application or deportation appeal other than handing over documents and may not understand the importance of such applications and the emotional toll of refusals.

Whilst people detained in prisons have access to 30 minutes of free legal advice, this is extremely difficult to find and there is no equivalent to legal aid surgeries that take place in detention centres. People detained in prisons are generally left to fend for themselves when it comes to legal advice, or simply given a list of lawyers to call, though some officers will try to help.

Recognising all of this, the role of a visitor is not easy. However, it is a vital role given the lack of information and the isolation faced by people impacted by immigration detention in prisons, the nature of which often leaves people feeling like they are forgotten.

Hundreds of people across the UK volunteer each week to visit people being detained under immigration powers in detention centres and prisons. Visitors come from all walks of life, but are united in their commitment to standing in solidarity with those in detention and creating a society rooted in community not incarceration.

This chapter is designed to help prepare you for visiting people in detention. It includes practical information as well as guidance around the principles of visiting drawn from the experiences of visitor groups and people who have been visited.

However, it is important to receive an induction and training from your visitors group before visiting someone in immigration detention. A good induction will better prepare you with skills and understanding to help navigate the challenges of visiting in immigration detention. AVID provides core visiting skills training to members of our network. Co-ordinators can contact us to arrange this for your visitor group.

People in detention may assume visitors are part of the Home Office. It is very important to emphasise at the start of a visit that you are independent from the Home Office and from the centre management. It can help to carry with you a written statement about who you are in the first language of the person you are visiting, to help communicate this clearly.

Wearing informal clothing and colours that are clearly different from the colours of centre or Home Office staff can help to distinguish you from staff or immigration officials.

The way you interact with centre management can influence whether you are perceived as someone who can be trusted. Make sure you are courteous to staff, but avoid non-essential conversation.

There are several ways people in detention might hear about a visitor group:

• Word of mouth: Often people who have been in touch with a visitor group will share information with others around what the visitor groups can offer

• Through a drop-in: Where groups hold drop-ins within the centre itself, for example in a welfare office or a library, people might simply see visitors in the centre and want to know more.

• Through detention centre or prison staff: The Operating Standards for IRC management require all detention centres to make information about AVID or the local visiting group available to those detained. Information might be shared as part of someone’s induction process when they arrive at the centre, or they might see a poster or leaflet distributed within the centre by staff on behalf of the visitor group. Welfare staff or chaplains may play an important role in referring people to visitor groups when they are concerned for someone’s wellbeing.

• Through another visitor group: Where a visitor group at one centre is in touch with someone who is being moved elsewhere, they may pass on the details of the relevant visitor group. Visitors at short term holding facilities play an important role here in connecting people they meet in detention with support at the centre they are being moved to next.

Active, empathetic listening is critical if we are to build relationships of trust and solidarity with people we visit. Through listening and showing empathy, we demonstrate we value the people we are meeting and can witness the injustices they face.

Active and empathetic listening is also a powerful tool in providing emotional support. People in detention experience a wide range of emotions: depression, anger, confusion, frustration, fear, powerlessness - not to mention boredom, tiredness, loneliness, and lack of privacy. When we listen well we make space for people to articulate these feelings, which can provide short term relief and support people to find ways of coping with these feelings.

A good place to begin is with open questions, allowing the person you are visiting to steer the conversation and decide what they want to share with you.

Here are some further tips from visitors and those who have been visited:

What can help people feel listened to?

• Demonstrating warmth and openness towards them through our voice and body language

• Repeat back to people what they have said to us, and check that we have understood them

• Watching for and responding to nonverbal cues about someone's emotional state

• Putting aside our own judgements and showing curiosity where you might disagree

• Leaving silences and space for people to share how they are feeling

• Remembering what people have shared with us

What might stop people feeling listened to?

• Asking for lots of detail about people's private lives when it isn't necessary

• Interrupting someone or turning the conversation around to our own problems

• Minimising someones problems or Saying that they shouldn't have the feelings they have

• Responding with judgements about people's lives and decisions

This step-by-step guide draws on advice and good practice from different visitor groups. Read this guide alongside specific guidance from your visitor group, so that you can be confident of the specific policies and processes you need to follow.

Preparing for a visit:

• Call or message the person you are visiting the day before your arranged visit to check they would still like you to come and that the time suits them.

• Find out about the regime and facilities of the detention centre you are visiting from your group, and familiarise yourself with key organisations providing specialist support in the case you need to refer someone. Your visitor group will have a list of centre or prison-specific organisations.

• Think carefully about what you can commit to in terms of frequency of visits and communication in between visits.

• Make sure you are familiar with your groups’ guidelines and codes of conduct. In particular, make sure you are aware of your group's escalation processes if you are concerned about someone’s safety.

• Your coordinator will advise you on what security screening is required, for example DBS and CRB checks. Visitors who visit beyond the visiting hall are required by the Home Office to have an enhanced DBS check.

At the start of a visit with someone in detention:

• Explain what your role is a volunteer visitor and as part of a particular visitor group. Explain what the visitors group does, how it can help, and what it can and cannot do. Be clear that you cannot offer legal advice.

• Explain that you and your group are independent of the Home Office and centre or prison management, that you are there for them alone, and won’t share what they tell you with anyone outside your group unless they give you permission.

• Explain that if you are concerned that they might harm themselves or someone else, you will need to tell someone else. If that happens, you must follow your group's escalation procedure. It is vital they know this from the outset.

During the visit

• Focus on being present and listening with empathy. .

• If they raise an issue or a concern, you may need to ask them for more information to be able to understand their situation and what options for action are open to them. Understanding the facts of someone’s situation is important for providing the correct information. However, this should be done with sensitivity and without prying for unnecessary details. It may be helpful to ask:

  • What action have they already taken?

At the end of a visit:

• Go through any actions that you are each going to take as a result of your conversation. Get clear permission for any actions that you have offered to do that involve sharing information with someone else.

• Ask the person you are visiting whether they would like to meet again. If they would like another meeting, decide together when is a good time and day to meet. You might also discuss options for checking in over the phone between visits depending on their needs, your capacity, and your groups processes.

• Share any information about relevant groups or organisations that can provide additional support based on your conversation. Your group may provide a leaflet with these organisations.

After a visit

• Share a report or feedback on your visit, following your group processes. It is important to note down actions you agreed to take on their behalf, any particular concerns you have about the well-being of the person you met, and any wider issues raised about the centre.

• Do the actions you agreed to do, or hand them over to the relevant person in your group. Keep a record of any actions taken.

• Take some time to process your feelings about the visit in a way that works for you. This could involve speaking with another volunteer, a group coordinator or a friend, taking time out to recover, and/or writing things down.

Standing in solidarity with someone in detention requires a relationship of trust. People who have been in detention often describe how hard it can be to trust people when they have lost faith in the system to treat them with dignity and to do justice.

As a visitor you can work to become worthy of people’s trust by:

• Only taking actions on behalf of someone with explicit consent.

• Setting realistic expectations about your role, including the fact that you cannot give legal advice.

• Only make promises you can keep, and if you are unsure what support your group can offer, check with your group before making a promise.

• Following up promptly on any actions you agree to do, and keep the person you are visiting updated with regular communication.

• Keeping what is shared with you confidential, according to your groups confidentiality policies. Don't share any information with staff or other agencies unless you are explicitly asked to share it.

• Ensuring that the information you share with people is accurate, and avoid providing hope where it is not justified.

• Don’t push for information on the person’s background or case- let them bring that information to you. Don’t interrogate inconsistencies.

• Be patient and don’t be put off or upset if conversation doesn’t flow or a visit is difficult.

• State and demonstrate independence from the centre management.

Click here to see the list of organisations categorised here:

Below are some of the key areas of concern that people raise with visitors. Follow the links to other chapters for more detailed information on some of these concerns and how visitors can respond.

Isolation

Many people in detention, especially people picked up on arrival in the UK or shortly after, don’t have family or friends to visit them. Others may be detained a long way from their home in the UK, or from their partner or their children making family visits impossible. Phone calls and texts are no substitute for face to face contact.

Some people find the idea of their children visiting too upsetting, or don’t tell family or friends they are in detention for fear of how it will impact them.

As a visitor you can:

• Listen empathetically

• Provide people with money for phone credit or phone top ups - check with your co-ordinator first what your group or other solidarity groups can offer

• Support people to tell their friends and family where they are

Stress, anxiety and depression

People in detention do not know how long they will be held, or what the final outcome of their immigration case will be. This uncertainty is an important factor in generating or escalating levels of stress and anxiety. They may feel desperate and anxious, or unable to gather the strength to continue their fight if they have had an appeal refused or a hearing adjourned, or if a bail application is refused.

Seeing others around them being moved, deported or struggling to cope exacerbates feelings of distress.

Some people in have pre-existing mental health problems such as anxiety, depression or PTSD which are exacerbated in detention.

• Read more about safeguarding mechanisms in detention and what visitors can do to support people struggling with their health in .

Self-harm and suicidal thoughts

People in detention may experience intense and sometimes unbearable emotions. It may be that during a visit they discloses thoughts of suicide, their intention to harm themselves, or may show you wounds from self-harming.

By listening and making space for people to share their overwhelming feelings, you can support someone to cope with them.

Samaritans provide detailed up-to-date guidance on supporting people who are suicidal, which visitors should be familiar with.

• .

As a visitor you must also familiarise yourself with your groups’ safeguarding policies so that you know what to do if you are worried someone is at immediate risk of harm to themselves or others.

*Coming soon: How visitors can support those with suicidal thoughts*

Problems with legal advice and representation

People in detention regularly report that they cannot get a solicitor to help them, causing a huge amount of frustration and anxiety.

Eligibility for free legal support (via legal aid) is restrictive, and even when people are able to get a legal aid lawyer, people in detention often report long delays and poor communication.

Sometimes lawyers will only take on part of someone’s case (e.g. the fact of their detention but not their immigration case) but it is not always clear to people which part of their case has been taken on. Some people find themselves unsure of whether they are being represented at all.

• .

Bail in principle and release to homelessness

Increasingly people are granted bail ‘in principle’ as they do not have an address to go to. Huge delays in the provision of asylum or emergency accommodation leave people stuck in detention until accommodation is confirmed. Others are granted bail without an address to go to and find themselves released to homelessness.

• .

Deteriorating health

People’s physical and mental health frequently deteriorates in detention, with existing health problems exacerbated by interruptions in health care, insufficient treatment, and failing safeguards. Use of force, segregation and inhumane and degrading treatment have long lasting impacts.

• Read more about what to do if you are .

Poor quality and not enough food

Increasingly people report that food in detention is of poor quality, lacking in nutrition and culturally inappropriate. They also report being hungry and losing weight from not being able to access enough food. This has a big impact on people’s health, wellbeing and dignity.

As a visitor you can:

• Provide money for people to buy items from the shop

• Support people to raise a complaint to the Independent Monitoring Board

Who?

In practice, there are three broad groups of people subject who may be detained for immigration reasons:

• People who are detained on arrival, pending examination of their case and a decision on whether to grant, cancel, or refuse leave to enter. Increasingly, this includes people who are seeking sanctuary in the UK. People can be detained at any stage in their asylum claim, and pending their removal if their claim is refused.

• People who have overstayed a visa or grant of leave; who have been refused leave to enter; who have been unable to observe conditions attached to their visa or who have allegedly used deception in their application for leave to remain. Anyone reasonably suspected of falling into one of these categories can be detained, along with family members subject to immigration control, pending examination of their case, a decision on removal, and their actual removal from the UK.

• People who are subject to deportation action as a result of a criminal conviction. Anyone who does not have British citizenship status, who has received a sentence of 12 months or more, is subject to a deportation order.

These categories are fluid and interconnected, for reasons described below.

Why?

There are a number of reasons that someone might find themselves in any one of the situations described above.

The exact number of people without a regular immigration status in the UK is unknown. A 2017 report by Pew Research Centre estimated the number to be 800,000 to 1.2 million [1]. This is the result of a series of restrictive immigration policies which have made it extremely difficult for some people to gain lawful residence or to claim asylum in the UK via a safe and regular route. Exemplary of this, the hostile environment policies introduced in 2012 were explicitly intended to make life so difficult for people without a regular status in the UK that they would be forced to leave. These policies extended to all walks of life, involving healthcare professionals, employers and landlords in the process of immigration checks and pushing people to the fringes of their communities. These policies even went so far as to impact people originally from the Caribbean who had the legal right to be in the UK, in what is now known as the “Windrush Scandal”, and who were denied access to healthcare, lost their jobs and were even wrongfully detained or deported. In addition to restrictive policies and a lack of legal routes, the complexity of immigration legislation requires legal advice. Yet, a recent report from Refugee Action [2] on low-cost and free immigration advice found a serious shortage of legal advice in most parts of England and Wales and some areas where there was only one qualified legal aid caseworker in an asylum dispersal city. Paying for legal advice is not possible for many, notwithstanding the cost of visa applications.

Instead of creating pathways for people to be able to regularise their status and positively contribute to UK communities, people are increasingly criminalised for immigration related reasons by government policies. As a result, in a process that has been coined "crimmigration", immigration and criminalisation have become closely connected. The Migration Observatory at the University of Oxford describes how “immigration law has created an increased number of actions that are legally defined as crimes” [3] a process which escalated between 1999 and 2009. Convictions for immigration offences include: assisting unlawful immigration; seeking leave to enter or remain or postponement of revocation by deception; and working without the legal right to do so. The Nationality and Borders Act 2022 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). A sentence of 12 months or more results in the person being subject to ‘automatic deportation’. It also leads to the person being classed as a “serious criminal” following amendments made in the Nationality and Borders Act to the definition of “a particularly serious crime” which is now defined as one which attracts a sentence of at least 12 months. And so, it is now writ in law that people who are simply seeking asylum, and who do not arrive by the limited regular routes that exist to the UK, maybe considered “serious criminals”.

Lastly, UKs immigration system and who, as such, is “detainable” cannot be separated from issues of racism, systemic inequalities and Britain’s colonial legacy. Distinctions which are drawn in the UK immigration system stem from ties to previously colonised countries whose populations - post-independence - were no longer able to freely enter the UK (The Immigration Act 1971 and The Commonwealth Immigrants Act 1962). This resulted in new forms of immigration control, including detention, whilst visa routes were opened up for "old" Commonwealth countries with predominantly white populations, such as New Zealand and Australia [4]. Who belongs and who doesn’t, as presented in the media, through political rhetoric and what is then written into legislation, is closely tied to ideas of race and racial hierarchies. Read more about the tangled history of detention and colonialism in this letter from people with lived experience of detention [5] and blog from GDWG’s Refugee Tales, “The Better Imagined” [6] on Racism and Immigration Detention. As quoted in their blog:

“The legacies of British colonialisation and imperialism have shaped the contemporary practices of detention and who ends up in one of the UK’s [immigration removal centres]. To challenge immigration detention, and work to denaturalise it as an appropriate or logical state response to mass migration and concerns about security, it is necessary to attend to issues or race and racism.” –

When?

As a visitor you will meet people in detention who are at very different stages in their immigration journey and who have been in the UK for differing lengths of time.

Some people you meet in detention will have never set foot in the UK other than in the custody of the police or the Home Office, having been picked up on arrival at a port, for example after crossing the channel or Irish border. You could meet people who were detained on reporting at an immigration reporting centre or who have been apprehended during an immigration raid. Or, you could meet people who have served a criminal sentence and are held under immigration powers after finishing their sentence.

People detained may have originally entered the UK entirely lawfully, then overstayed their visa, moving from one immigration status to another, with leave to enter or remain at the beginning of their stay but without it later on. Still others may have lived, worked, or studied in the UK for years, possibly decades or since they were a child, and consider the UK to be their home.

Whatever someone's journey and reasons for being in detention, we challenge hierarchies in our immigration system that create ideas of who does and doesn’t deserve to belong. As set out in , we are inclusive in our support to people in immigration detention and do not discriminate on any basis.

You may want to refer someone to another visitor group if the person you are visiting:

• Is being moved to another centre

• Needs a particular kind of support your group cannot offer

Details of visitor groups to every detention centre and some prisons are available on the AVID website. Use the map function to find a visitor group at the relevant centre.

Visitor groups can access the most up-to-date information on what other visitor groups can offer through the AVID google drive. To access the google drive contact your group co-ordinator or contact AVID directly at

Visiting people in detention can be difficult, and it is important for you to consider how they will take care of their own wellbeing, and be aware of the support that is available to you through your visitor group.

Visitor self-care

As a visitor you will need to come up with strategies to take care of your wellbeing. We asked long-term visitors what they do to support themselves after a visit - here are some of their practical suggestions:

• Plan to take some time off after a visit, rather than go straight into your next task or back to work. This transition time can make sure you are able to process some of what has happened.

• Write down what happened on your visit. Groups usually require some kind of report to keep track of issues that come up and actions to be taken, so you will need to write something about your visit. But this process is not only administrative - it can also be really important to get your thoughts on paper so they aren’t only ‘in your head’.

• Take some time to ground yourself - take a walk, do some gentle movement.

• Reach out to someone else to talk through your visit, whether another visitor, a group co-ordinator or a friend.

As well as being difficult in the moment and directly after a visit, standing in solidarity with people in detention can have significant ongoing impacts on your wellbeing, depending on your own past experiences, mental health and resilience. Learning to notice when visiting is affecting your mental health, and coming up with a plan of what action you can take is really important.

Support from your visitor group

A key part of the value of visitor groups is the emotional support that they provide to people standing alongside those in detention. By helping you to process the challenging feelings and experiences you will have visiting people in detention, these group support systems make it possible for people to stand in solidarity with those in detention for the long-term rather than burning out.

Groups are organised in different ways and the support they provide varies, but it might include:

• A ‘buddy’ system where you are partnered up with another volunteer who is able to debrief with you after a visit.

• Post-visit debriefs with another volunteer or co-ordinator.

• Group de-brief or reflection sessions with other volunteers.

• Access to professional 1-to-1 or group supervision or counselling.

If you are unsure what support is available to you as a visitor, speak with your group co-ordinator.

Support from AVID

AVID provides a national support system for all visitors and for groups through monthly members peer support spaces, online resources including the members google group and this handbook, an annual conference and 1-to-1 support from AVID staff. AVID also offers training in specific areas of concern for visitors, drawing on the expertise of other visitor groups and other external specialist organisations.

Please don’t hesitate to get in touch with us via if you are looking for support or have a specific question.

Anyone present in the UK who does not have a regular immigration status can - theoretically at least - be subject to immigration detention, sometimes referred to as ‘administrative detention’ because of the lack of automatic judicial oversight (the decision to detain is made as part of an administrative process by a Home Office official, not by a judge before a court.)

The first formal immigration detention centre in the UK was Harmondsworth Immigration Removal Centre (IRC) which opened in 1970 with 44 spaces. This was a result of restrictions imposed on Commonwealth citizens by the Commonwealth Immigrants Act 1962 which led to a new need to process people impacted upon entry to the UK. Detention capacity has grown significantly since then. In 1994 there were 250 detention bed spaces; numbers peaked in 2015 at around 3500 people detained at one time; dropped significantly during the COVID-19 pandemic and are now on the rise again.

This expansion of the use of detention forms part of an immigration control narrative that emphasises security, deterrence and control. The UK now has one of the largest networks of immigration detention facilities in Europe and is the only country in Europe without a time limit on the length of time someone can be detained.

Arguments for the use of detention, for example that it is an essential means of facilitating the removal of those deemed to have no right to stay in the UK, or to efficiently process asylum applications, have proved specious. The rate of removal from the UK on release from detention has consistently been at around 20%. To some extent this is besides the point - immigration detention is predicated on a logic of exclusion and hierarchies of belonging created more broadly by the UK's immigration system - and the extensive evidence of the harm which is caused by detention should be reason enough to consider alternatives. Nevertheless, it's ineffectiveness in addition to the recent success of "Alternative to Detention" pilots [1], call into question how we have reached this point where immigration detention, and the harm caused by it, are a regular feature of the UK immigration system.

This chapter provides an overview of who can be detained and why, as well as how this works in practice.

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 ).

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 .

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: .

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 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 .

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:

1. Immigration Law Practitioners’ Association, (2008), ‘’.

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 IS91R 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 six 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 immigration bail.

• Their removal from the UK is expected to take place in a reasonable timescale.

• They need to be detained whilst alternative arrangements are made for their care.

• Their release is not considered conducive to the public good.

• Following arrest for breach of immigration bail conditions.

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 ) 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 ), 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.

3. h

4. h

Awareness of, and respect for, boundaries is essential for building the safe, secure, trusted and supportive relationships that visiting is all about. Some boundaries will be decided by you and/or the person you meet in detention, others will be set by your visitor group.

Drawing and maintaining boundaries will help the person you are visiting to understand your role and remit as visitor, and can protect you and the person in detention you visit from harm. Some boundaries might feel useful to you, and others may feel frustrating and restrictive.

Your visitor group might set out boundaries in a Volunteer Agreement document or Code of Conduct, along with other policies such as safeguarding and confidentiality policies. It is important to be aware of these, and know what is expected of you when you are acting on behalf of the group. There will also be areas in which you will need to decide on your own boundaries, based on your own preferences and wellbeing.

Navigating boundaries when you are involved in a relationship of care and solidarity with someone can be incredibly difficult. Boundaries might also shift depending on the circumstances of the person you are supporting, the nature of your relationship with them, the wider political situation, and your visitor group's resources and capacity at a particular time. Bringing challenging decisions to your group and reflecting on the different factors affecting decisions around boundaries can be really helpful for your wellbeing.

It can help to think before you start visiting about possible situations that might arise and how you might respond, as well as make sure you understand relevant group policies. This will help you to respond more thoughtfully in the moment, and prevent you from making a promise you cannot keep. These situations could include:

• Whether or not you will share any of your personal details, such as your phone number or email address

• Whether or not you can offer money or phone credit

• Whether or not you can collect people’s belongings (e.g from their home, a friend or a police station)

• How you will respond to someone who holds beliefs you strongly disagree with or if they say something disrespectful or offensive

It is likely your group will have guidelines on how to respond to in these situations. For example, many groups will recommend you don’t give out your personal phone number and leave responsibility to make follow-up phone calls to a group co-ordinator or specific volunteer. If you do agree to call someone, you might decide to get a simple phone specifically for your volunteering and agree the times when you will be available to call or message.

While boundaries can vary by group and individual relationship, here are some important do’s and don’ts, drawing on the experience of the AVID network:

Do:

• Keep everything shared with you confidential unless you are concerned someone is at immediate risk of harm, according to your groups policies. Make sure the person you are visiting is aware of this policy

• Support the person you are visiting to make their own decisions that are right for them, and only act on their behalf with explicit consent

• Follow your groups procedures and the rules of the centre you are visiting

• Clearly explain the limits your role as a visitor at the start of your relationship and again if you need to, including the fact you cannot give legal advice

Don’t:

• Stray into giving someone legal advice, unless you are qualified to do so

• Share your personal address or give more personal information than is necessary

• Initiate physical contact - although if you feel comfortable you might respond to appropriate physical contact initiated by the person you are visiting (e.g a handshake or a hug)

• Get involved in an intimate relationship with the person you are visiting

This section should be read in conjunction with Legal Advice and Representation. Visitors - who are not regulated to do so - should not give immigration advice as it is a criminal offence to do so and incorrect advice can have serious repercussions for the person involved.

The information in this section is useful background reading for visitors on the legal framework for asylum (which impacts a high proportion of people in detention) and the use of immigration detention; it provides visitors with an understanding of what to expect when someone makes an asylum claim; and it is written to better equip visitors with knowledge of what options are available to the person that they are visiting.

Nationality

Every quarter, the government publishes its quarterly statistics [1] which include information on the nationality of individuals entering and leaving detention. Predominant nationalities change over time, reflecting wider national and international factors. As above, the number of people without a regular status (around 100,000) far exceeds the number of detention spaces in the UK (around 3,500). The result is that the nationalities of people detained is often politically influenced or can depend on the destination of a Home Office chartered flight [2].

During 2021 and 2022, the most common nationalities in detention corresponded to the predominant nationalities of people arriving via an irregular route to claim asylum (Iran, Albania, Afghanistan, Syria, Iraq). However, the majority of enforced returns during this period were people from Eastern European countries. More recently people from Albania were over-represented in detention, representing one-third of people detained in 2023. Trends are regularly changing and you can visit the AVID website for more information:

• If you are an AVID member, login to view our on the rise in inflammatory discourse and restrictive immigration policies against the Albanian community.

• Visit our to find Facts and Figures on detention.

People detained under immigration powers may have disputed nationality; no way of proving their claimed nationality; their nationality cannot be easily determined or they may be stateless. The inability to confirm nationality and to obtain travel documents for removal are common and significant reasons for lengthy periods of detention, especially if the Home Office takes the view that a person is refusing to cooperate with their redocumentation.

All of this is to say that visitor groups may meet with people from as many as one hundred nationalities in the centre they visit in any one year.

Gender

For many years, women have made up around 10% of the IRC population and men around 90%, according to Home Office detention statistics. Women are held in Derwentside Immigration Removal Centre (IRC), Yarl’s Wood IRC, Dungavel IRC, at the Sahara Unit in Colnbrook IRC, and in family accommodation at Tinsley House IRC if they are part of a family with children. Derwentside IRC is the only centre that is solely used to detain women. Women and men are also detained at STHFs and STHRs in mixed gender provisions, and both men and women may be detained in prisons at the end of their custodial sentence pending removal or deportation.

There are specific gendered harms of immigration detention due to experiences of domestic and sexual violence being common amongst women in detention and the increased risk detention presents of re-traumatisation. Women for Refugee Women's recent research showed that the majority of asylum-seeking women who are detained are survivors of rape and other forms of gender-based violence, including domestic violence, forced marriage, female genital cutting, and sexual exploitation [3].

The Home Office does not monitor and publish statistics on the number of LGBTQI+ people it detains, despite calls from the sector for it to do so. However, in response to a Freedom of Information request from Rainbow Migration, the Home Office confirmed that at least 129 LGBTQI+ people had been held in the detention estate in 2022.

Age

Usually people in detention will be between the ages of 18-50 with the highest recorded age group category in recent years being 18-29.

There is no upper age limit on immigration detention in the UK and you might meet people older than this. However The Home Office Adults at Risk policy does state that being over the age of 70 is a risk indicator.

In 2022, 5 people entered detention over the age of 70 and 684 people entered detention between the ages of 50-69. Older people in detention are not necessarily ill or frail, but if they are it is likely that their health and social care needs will not be met in detention. Disability aids may be hard to obtain, and disability access, for example to the dining room, is reportedly difficult in some IRCs. Visitors may be able to provide assistance with challenging these problems.

You might also meet children in detention. As explained in the previous section, the introduction of reforms in the Immigration Act 2014 led to a significant reduction in the number of children detained. Detention of children takes place at a family unit at Tinsley House IRC, at STHFs and at ports and airports. However, this is threatened to change with the introduction of the Illegal Migration Act.

You might also meet children whose age is disputed by the Home Office. AVID’s stance is to view young people who state that they are under 18 as a child and we stand against the culture of disbelief that is pervasive within detention settings. However, we recognise that many of the usual statutory referral routes will not be open to these individuals. The Refugee Council runs which takes referrals from organisations that work and visit in IRCs, solicitors, or anyone else who believes that a detained person looks under 18 or is claiming to be under 18. Where a case is taken on by Refugee Council, the aim is to ensure the child gets a professional recognised age assessment from a local authority, and is released from detention as soon as possible. You should check with the coordinator of your visitor group for the group’s procedure on notification of age disputed cases.

Criminalisation

Of the numbers of people detained at any one time, around 20-40% have a criminal conviction. As described in the previous section, the reasons for this are often closely tied to immigration factors. Some of these people will be held under immigration powers in prisons. You can read more about this in the Chapter .

Whether or not the person you visit has an offending history will make a practical difference to how you might help them get released from detention, and any restrictions on their release address. Neither the Home Office nor the First-Tier Tribunal have particularly nuanced approaches to offending behaviour compared to agencies and courts in the criminal justice system, and an offending history can make it harder for people to get released from detention. It is important to be aware of this for this reason. It is also important to keep in mind that - as a network - we challenge hierarchies in our immigration system that create ideas of who does and doesn’t deserve to belong. We are inclusive of our support to people in immigration detention and do not discriminate on the basis of previous sentences served ().

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 – – 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) A person may only be detained under immigration powers for the purpose of preventing their unauthorised entry or with the intention of removal;

Asylum is a fundamental right, and granting asylum is an international obligation which was first recognised in the 1951 Refugee Convention on the protection of refugees. Two pieces of international law define who is considered a ‘refugee’ and outline the rights of displaced people and the legal obligations of states to protect and support them. These can be used to support an asylum application in the UK and are:

● The 1951 Refugee Convention, and the 1967 Protocol which expanded the scope of protection offered by the 1951 Convention

● The European Convention on Human Rights (ECHR)

Retained European Union law can also be used to support an asylum application in the UK.

The 1951 Refugee Convention

Article 1 of the 1951 Refugee Convention defines a refugee as someone who:

The law following the UK’s exit from the EU is complex. This Handbook therefore sets out two of the most important legal developments namely, the Withdrawal Agreement and the EU Settlement Scheme.

The Withdrawal Agreement

The Withdrawal Agreement agreed between the EU and the UK establishes the terms of the UK’s withdrawal from the UK and is a comprehensive document addressing matters such as citizen’s rights, money and dispute resolution. Its protection is especially strong for those who were exercising free movement rights under EU law before the specified date (11pm on 31 December 2020).

Importantly for those facing deportation, the Withdrawal Agreement is clear that where someone’s “conduct” (or actions) giving rise to the deportation decision took place prior to the specified date, then EU law principles (which are far more generous than UK deportation provisions) apply. So, for someone who had permanent residence in the UK under EU law and committed an offence before the specified date, the Home Office must establish that there are “serious grounds of public policy and public security” before they can be deported, making it more difficult to remove them and potentially making their detention unnecessary and disproportionate because of this. For more information, please see the Home Office’s current policy titled, “Public Policy, public security or public health decisions.”[1]

EU Settlement Scheme

EEA nationals and their family members (before the specified date) are required to apply for leave to remain in the UK under the EU Settlement Scheme (‘EUSS’). The requirements are contained in Appendix EU of the Immigration Rules and applications are free of charge. If successful, the individual may be granted pre-settled status (residence for five years) or settled status (indefinite leave to remain).

In order to benefit from the EU Settlement Scheme, the EEA national must meet certain “suitability” and “eligibility criteria,” including being a resident in the UK prior to 31st December 2020. The government allowed individuals to make EUSS applications until 30th June 2021 however, late applications can still be made provided the individual demonstrates that there are reasonable grounds for the delay in applying. The Home Office’s present guidance[2] states that reasonable grounds may include situations where an individual lacks the physical or mental capacity to apply, where they have a serious medical condition which prevented them from applying and other compelling practical or compassionate reasons. Reasonable grounds might also include an individual being detained and/or in prison however, whether this is accepted will depend on the Home Office’s assessment. It is therefore possible for people in detention who have not yet made an application under the EU settlement scheme to still be granted some form of leave if they apply now and cite reasonable grounds for doing so late.

When an individual makes an application under the EU Settlement Scheme, this will constitute a barrier to removal according to the Home Office’s own published policy.[3] Therefore, the Home Office should not attempt to remove individuals with an outstanding EUSS application. There are delays with EUSS decision-making[4] so if an EUSS application is made by a person detained, it may be that the Home Office is unlikely to remove them within a reasonable period of time, therefore increasing the chances of them being granted bail.

1. “Public Policy, public security or public health decisions.” (Version 7.0) (30 September 2022) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1109258/EEA_public_policy_and_public_security_decisions.pdf

2. Home Office: “Apply to the EU Settlement Scheme (settled and pre-settled status)"

4. Home Office ‘Conducive Deportation (Version 2.0) (published on 8 June 2023)[p.22]

Visitors often describe their role as one of visiting in the place of family or friends, in a context where someone may be isolated from their usual support networks. A visitors role frequently involves:

• Active listening and offering empathy and compassion at times of distress

• Standing alongside people as they seek to meet their basic needs e.g by sharing money, phone top-ups or clothing

• Sharing information about immigration detention and their rights in detention, such as information about legal advice, healthcare and bail.

• Facilitating communication between people inside detention and groups or individuals outside, including solicitors, specialist support groups, family or friends.

However, the nature of the relationship of solidarity built can vary widely, depending on the person you are visiting and your own approach. It will also vary according to the boundaries set by visitor groups and by the particular constraints of visiting in different spaces of incarceration.

This section is intended to provide useful background for visitors supporting people in detention at any stage of the asylum process.

Since the pandemic there has been an increase in the number of people in detention who are asylum seekers and refugees. Previously asylum seekers made up around 50% of the detained population. Since 2021 this has been closer to 80% and above. This is because of the government response to the increase in people arriving via the channel following Brexit and diminishing safe and regular routes by which to claim asylum. Whilst, in 2023, detention was less commonly used for people arriving via the channel, of those released from detention on bail (75% of the detained population), this was usually due to an asylum application being raised.

As of 2000, a proportion of people who made asylum claims were detained by the Home Office with the intention of determining their application quickly and removing them more easily if their claim is refused. In practice, these accelerated procedures never functioned fairly or particularly quickly. Legal challenges to the Detained Fast Track asylum process resulted in it being found to be operating unlawfully in 2015. Asylum seekers can now still be detained under the new Detained Asylum Casework process, but not solely on the basis of having lodged an asylum claim.

The standard asylum procedure

An application for asylum in the UK can be made at a port, in-country, or from another country via a UNHCR scheme. In practice, people make applications for asylum under many different circumstances, including:

● On arrival in the UK at an airport or port to the UK Border Force

● ‘In country’ at the Asylum Intake Unit at the Home Office in Croydon, south London.

● After being apprehended in an immigration raid

● In prison or in a police station, while being held on a criminal matter

● While detained pending removal or deportation from the UK

The Home Office requires asylum applications to be made ‘as soon as is reasonably practicable’ after arrival in the UK. It is therefore important that anyone wanting to claim asylum gets legal advice straight away.

A person may have some form of leave to enter or be present in the UK when they make their asylum claim, may have had leave but it has expired, or may never have had leave to enter or stay in the UK. Asylum claims which are made months or years after entry to the UK, or after a person is discovered living or working in the UK without leave, run the risk of being viewed by the Home Office as ‘late and opportunistic claims’. However, changes in the situation in the country of origin which occur after a person has arrived in the UK have the potential to create a risk on their return, and may give rise to a ‘sur place’ claim for protection.

After an initial screening interview, at which basic information is taken from the applicant, the Home Office decides how the asylum application will be dealt with. The routine procedure for adults is dispersal within the UK for a regional immigration office to handle the claim. Unaccompanied children are currently referred to local authorities for care while their asylum claim is being determined. The Home Office is also seeking to deport people to “safe” third countries for their claims to be processed although the prospect of this is uncertain at present.

During the decision-making process, asylum applicants must generally report at regular intervals to a Home Office reporting centre or a police station. Failure to report can lead to detention and may mean that accommodation and support is discontinued.

Recent changes to asylum law

The Nationality and Borders Act 2022: On 28 April 2022, the Nationality and Borders Act 2022 (‘NABA 2022’) entered into force and introduced significant changes to immigration and asylum law. The Act applies to asylum claims made on or after 28 June 2022. Given the substantial changes it introduced, legal challenges to NABA 2022 should be expected. It also remains unclear as to how the government intends to operate much of its provisions.

NABA 2022 enables the Home Office to treat asylum claims as “inadmissible” if the person seeking asylum has a connection to a safe third country. This means that the Home Office will not substantively consider their asylum claim with a view to granting international protection in the UK. The intention is instead for the safe third country to determine the asylum claim. In practice, this is complex and difficult to implement without agreements with the country in question.

A “connection to a safe third country includes the following circumstances[1]:

(i) whether the safe third country has granted an asylum-seeker international protection and they are not at risk of persecution there;

(ii) where they have claimed asylum in a safe third country and the claim remains undecided or refused;

(iii) where they were present and eligible to make an asylum claim in the safe third country but did not despite it being reasonable for them to have done so;

(iv) when it would have been reasonable for them to have claimed asylum in the safe third country in light of their personal circumstances.

It is also important to note the following:

• It does not matter how briefly a person seeking asylum was present in the safe third country; they may have passed through or have had family there.

• The safe third country the Home Office proposes to remove the asylum seeker to does not have to be the same one they have a connection to (e.g. Rwanda).

Whether a country is “safe”[2] depends on whether the Home Office is satisfied that the asylum-seeker will not face persecution there and that they will not be sent to another state from the safe third country unless this is in accordance with the Refugee Convention, does not breach Article 3 of the ECHR (freedom from torture or inhuman or degrading treatment) and they can claim asylum in accordance with the Refugee Convention there. The Supreme Court found in the Rwanda litigation[3] that Rwanda is not a safe third country because there is substantive evidence that people sent to Rwanda are at risk of refoulement.

Asylum claims made by EU nationals are to be deemed “inadmissible” unless there are “exceptional circumstances.” There are examples of what might constitute “exceptional circumstances” such as when the EU is attempting to suspend a member state for breach of EU values or where the state has deviated from the ECHR.

As set out in the Home Office’s published policy, the country proposed for return must agree to admit the person in question before an admissibility decision is formally made.[4] If the Home Office then decides to certify a third country as safe, the person seeking asylum may be removed there unless they challenge the decision to certify by way of judicial review.

If the Home Office cannot remove someone to a safe third country, they will eventually be allowed to have their claim processed in the UK.

The Illegal Migration Act 2023: The Illegal Migration Act 2023 received Royal Assent on 20th July 2023 however, many of its provisions are not yet in force.

On 23rd July 2024, the new Home Secretary, Yvette Cooper, published amendments to the Illegal Migration Act so that the Duty to Remove (the primary purpose of the legislation) will apply to individuals who arrive after the provision comes into force. Under the previous UK government - who introduced the Illegal Migration Act - this applied to people who arrived on or after 20th July 2023. As a result, people who arrived after this date can now have their asylum claims processed as normal. Subsequent amendments were made to include this new date in related provisions - including Section 30 of the act which bars people who entered the UK via an irregular route from leave to enter and/or remain, entry clearance or an electronic travel authority. This bar now applies from the date which the Duty to Remove comes into force (as apposed to 7th March 2023, the date which it previously applied).

Whilst this is a welcome change, it falls of short of the vital need to repeal the act in its entirety. You can read more about the damaging implications of the Illegal Migration Act in .

Section 12 is one of the few provisions of the IMA is in force which changes the powers of detention so that the length of someone's detention is determined by The Secretary of State for such a period as it “reasonably necessary to enable the examination or removal to be carried out, the decision to be made, or the directions to be given.” Read more about this in .

What happens if an asylum claim is successful?

If refugee status is granted by the Home Office at the first decision, or following a successful appeal to the immigration tribunal, the claimant will be given leave to remain in the UK for five years and allowed to settle in the UK after 5 years’ lawful residence. The Nationality and Borders Act 2022 allowed the Home Office to grant different forms of refugee leave depending on how the individual entered the UK. Those who passed through a safe third country and/or did not claim asylum without delay were to be granted temporary refugee permission of 30 months’ leave with an option to settle after 10 years’ lawful residence. However, the government has now paused its intention to differentiate between refugees in this way.

If asylum is refused, under certain circumstances a claimant may nonetheless be granted a form of leave to stay called Humanitarian Protection. A grant of Humanitarian Protection is an acknowledgement by the Home Office that removal to the country of return may result in a serious risk to life or the person, even if they don’t qualify for refugee status. The Home Office may also grant discretionary leave to remain in the UK for a limited period.

People who are granted refugee status, humanitarian protection, or discretionary leave to remain will have their asylum support terminated twenty-eight days after the decision, and will be entitled to work and claim mainstream benefits. Previously the 28 days was taken to begin after someone received their Biometric Residence Permit which also includes someone’s national insurance number and is necessary for someone to move on from asylum support. However, this recently change to the point from which someone’s asylum claim is accepted leaving people with only 7 days to move on from asylum support and find and pay for new accommodation. The result is that more people are being made destitute and forced into homelessness. [5]

Further submissions and fresh claims

A person who has been refused asylum or humanitarian protection and has exhausted all avenues of appeal can make further submissions to the Home Office on the basis of new evidence not previously considered by the Home Office which, taken together with the previously considered material, creates a realistic prospect of success, notwithstanding its earlier rejection. The Home Office will determine whether submissions amount to a fresh claim by applying certain legal tests, and if they do will then make a decision on that further claim. A refusal may be appealable[6].

Detention of asylum seekers after claiming asylum

Following the suspension of the Detained Fast Track scheme (DFT), the Home Office introduced the Detained Asylum Casework (DAC) process which allows for asylum seekers’ claims to be determined whilst they are in detention. The decision to detain must only be taken after considering the individual’s personal circumstances (including any vulnerabilities) and their eligibility for detention. If the Home Office concludes at any time that a person’s ongoing detention would be inappropriate (for example, if they have a serious medical condition which detention is detrimentally impacting), then they should be considered for release, in line with the Home Office’s Adults at Risk policy. If the asylum claim of a person detained claim is allocated to the DAC, this does not prevent them from being eligible to apply for or be granted immigration bail by an immigration judge.

There is no set timescale for the processing and resolution of asylum claims under the DAC. However, the Home Office’s policy states that a person detained must always have 5 full working days between the time their legal representative is confirmed to the asylum interview and a further 5 full working days after the interview to submit further representations before an asylum decision is made. Further time to submit additional representations can be requested by the detainee or their legal representative.[7]

The UNHCR published an audit of the DAC procedure in June 2023 and found that the average timescale from claim to service of decision was 49 days with a variation from 24 to 93 days. It stated that improvement was required in respect of decision-making to ensure compliance with international standards (for example in assessing credibility) and that extreme care was required in order to justify and maintain detention for the purpose of considering asylum claims.

The Nationality and Borders Act 2022 introduced an Accelerated Detained Appeals (ADA) scheme, which only gives people, whose appeals are considered suitable for a quick decision, five days to appeal their refusal, following which the First-tier Tribunal would make a decision within 25 working days. The basis on which an appeal is considered suitable for the ADA is presently unclear. Any application for permission to appeal to the Upper Tribunal would need to be determined within 20 working days after being given notice of the First-tier Tribunal’s decision. There is limited information about the operation of the ADA scheme at present but the principle of resolving something as serious and consequential as an asylum claim within such a short period of time is concerning.

Statutory defences available to asylum seekers charged with document offences resulting from their entry into the UK

Document offences, such as obtaining leave to enter or remain in the UK by deception or possession or control of false identity documents with improper intention, may result from entry into the UK. Under certain circumstances, a person who uses false documents to enter the country for the purpose of claiming asylum may be able to rely on a statutory defence against prosecution.

brought into domestic legislation the protection provided in article 31 in the Refugee Convention 1951, namely a defence against the possession or control of false documents, or the failure to have an immigration document at a leave or asylum interview, so long as the person can demonstrate that they have:

● come to the UK directly from a country where their life or freedom was threatened

● presented themselves to the authorities in the UK without delay

● showed good cause for their illegal entry or presence, and

● made a claim for asylum as soon as was reasonably practicable after their arrival in the UK.

However, people continue to be convicted of document offences because their criminal representatives are not aware of this statutory defence. There is an obligation on solicitors and barristers representing defendants charged with an offence of possession of an identity document with improper intention to advise them of the existence of a possible section 31 defence. The Court of Appeal has taken a dim view of this type of error by solicitors.

Section 40 of the Nationality and Borders Act 2022 amends section 24 of the Immigration Act 1971 to now make it extremely difficult to claim asylum after entering or arriving in the UK in a way that does not first commit a criminal offence. This imposes a catch-22 situation for people seeking sanctuary, many of whom are unable to safely and legally claim asylum without entering the UK in the first place. If prosecuted and convicted for illegal entry, individuals can be sentenced for up to four years’ imprisonment or five years if they entered in breach of a deportation order. Section 41 also amends offences on facilitating/ assisting unlawful immigration however, there is a statutory defence for “rescuers” under section 41(4) which insert a new section 25BA into the Immigration Act 1971. A rescuer must prove that the assisted individual had been in danger or distress at sea, that the act of facilitation was an act of providing assistance to the individual at any time between when they were first in danger or distress at sea and the time when they were delivered to a place of safety.

It is questionable as to whether penalizing asylum seekers for entering the UK without permission is in fact, consistent with article 31 of the Refugee Convention. If the Crown Prosecution Service decide to prosecute, it may be possible in certain cases to challenge the prosecution itself on the basis that it is an abuse of process.

Any conviction, caution, or custodial sentence may have a negative effect on an asylum claim, and other immigration applications and decisions. There may be grounds for appealing the conviction or challenging the decision to prosecute. The Criminal Cases Review Commission has referred a number of such cases involving asylum seekers and refugees to the appeal courts, on the basis that the individuals had a statutory defence available to them him under s31 IAA 1999, and that the statutory defence would probably have succeeded.[8]

1. S. 80C. of the 2002 Act

2. 80B(4) of the 2002 Act

3. AAA v Secretary of State for the Home Department (Rwanda) [2022] EWHC 3230 (Admin)

4. Home Office policy: “Inadmissibility: safe third country cases (Version 7.0) (28 June 2022) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1084315/Inadmissibility.pdf

The Home Office publishes a wide range of instructions and guidance for staff and contractors designed to enable them to carry out work related to the detention, escorting, and removal, as well as the conditions of detention and treatment of those held in administrative detention. These instructions deal 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.

The Home Office makes its policies, and instructions and guidance for staff publicly available [1]. Documents may have operationally sensitive information redacted in these publicly available versions. This section will show you where to find this guidance.

Background

Detention visitors will find that guidance and instructions to Home Office staff offers helpful background reading to understand how detention decisions should be made. It is useful to discern Home Office attitudes and the complexity of immigration enforcement work as it relates to detention and removal. Remember that - although specific actions, steps and notifications are set out in this often-extensive guidance - they may not happen when they should, or may happen at the wrong time or in the wrong format. Home Office guidance sets out what should happen, not what actually happens. This is another important reason to be aware of this guidance so that visitors can advocate for people detained by, for example, reporting procedural failures to monitoring bodies or to AVID.

Many Home Office policies and instructions governing the use of immigration detention in IRCs have been lifted from or modelled on processes and practices used in the prison estate. This has been criticised, for example, by Stephen Shaw who noted, in his final report on the review into the welfare in detention of vulnerable people, that -

"When I spoke to senior officials of the private sector contractors, a theme of our conversation was the need for Home Office policy and process to reflect what was actually required for the immigration detention estate to do its job rather than trying to transpose prison practices into a very different environment. Current policies and processes do not always distinguish the role of an IRC from that of a prison” [2]

Areas for particular cause for concern about Home Office policy or guidance include the use of segregation in IRCs, the management of age disputes in detention, medical rights, and Rule 35 (a process meant to ensure the identification and potential release from detention of victims of torture). More detail about guidance in these areas is included later in .

From time to time, if a particular policy or piece of Home Office guidance is thought to be operating in an unfair way that harms significant numbers of people in detention, the lawfulness of that policy (or a section of it) may be challenged via the courts. There are a number of grounds on which Home Office policy or guidance can be challenged, depending on the particular policy. It may be possible to argue that the policy or instruction is a blanket policy (that it is being applied by the Home Office to an entire group of people without consideration of the facts in individual cases, making detention arbitrary for some or all members of the group); or that the effect of the application of the policy is a breach of a person’s human rights (for example aspects of a policy on detaining mentally ill detainees could breach the right not to be subjected to inhuman or degrading treatment under Art 3 ECHR).

Another type of challenge could be brought in the event that the Home Office is required - as a result of legislation - to provide a certain service or benefit but evidence suggests that it does not do so in practice, or does so only after unreasonable delay, or the hurdles to eligibility are so high as to make the benefit impossible to obtain, and people are suffering some detriment as a result.

Sources

The Home Office updates policy and guidance documents every so often in response to new legislation or litigation. You will generally find the version number and date of publication, along with a note on which sections of the document have been revised, at the beginning or end of the document.

The Home Office may consult with relevant organisations - including AVID - when drawing up or revising its policies and guidance, but it is also possible that new policies and new versions of policies are published online with no announcement.

Some IRC management contractors operate their own additional local policies. These are not usually made publicly available but may be known to the local visitors group. Partnership agreements, Service Level Agreements, and memoranda of understanding, are designed to try to ensure the consistent and effective delivery of business plans, including services provided within IRCs [3]. These agreements shape the delivery of services and the treatment of people detained. While they are not government policy documents, they can provide useful background information on which elements of services are prioritised by contractors, for example.

1. There have been some rare instances of the Home Office operating secret - that is to say unpublished - policies towards people detained. See for example Adam Wagner, (23 March 2011), ‘Secret foreign nationals detention policy was “serious abuse of power”’. UK Human Rights Blog. “The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy. Two convicted prisoners were therefore unlawfully detained.” Available at

2. Stephen Shaw, (2016), Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office by Stephen Shaw. Available at

3. See: Partnership Agreement between Home Office Immigration Enforcement NHS England Public Health England (April 2015); Ministry of Justice/NOMS & Home Office/UK Border Agency, (2011), Service Level Agreement for detention services provided by NOMS for UKBA 2011-2015; Memorandum of Understanding and Service Level Agreement between Immigration Enforcement of the Home Office And The National Council of Independent Monitoring Boards for the Home Office’s Removal Estate

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.

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.

The Operating Standards were set out by the Home Office in 2002 for those companies contracted to manage Immigration Removal Centres. The preface to the Standards states that they were developed out of the Detention Centre Rules (2001), and were intended to improve performance and compliance, and ensure consistency across the detention estate. Contracts between the Home Office and IRC contractors are not publicly available so the Operating Standards are the only clue to what provision is expected [1].

Under each heading, the Standard and an accompanying set of Minimum Auditable Requirements are laid out. For example, under ‘Arrangements for Expenditure’ the standard is “To provide arrangements under which detained persons may spend their money. Goods available must reflect the age, gender and cultural needs of a diverse population”. The Minimum Auditable Requirements are:

1. The Centre must provide arrangements under which detainees can either use a shop within the centre or take delivery of purchased goods by other means. If goods purchased are not available on the same day, they should be available no later than the next day unless the establishment has to order them specifically from an external source.

Detention Service Orders (DSOs) are mandatory instructions outlining procedures to be followed by Home Office staff and IRC supplier staff. DSOs are updated periodically and have no expiry date. They cover a wide range of topics such as visiting, room sharing, surveillance, use of restraints and access to video calls. At the outset, each DSO states where the instructions which it outlines apply (whether in IRCs, RSHTF, pre-departure accommodation or all of the above).

It is useful to access DSOs in order to gain an understanding of the responsibilities of Home Office staff and private contractors, the rights of people detained and how people in detention can access services in detention. For example, in the “DSO for Detainee access to video call service” it is stated:

“Each centre must ensure that a video call service is available for use over a minimum period of seven hours every day.”

However, visitors will find that instructions such as this are often not properly applied.

DSOs can be accessed online on the government website (you can find the link in the "Overview and Sources" section of this chapter.)

Be aware that: a) the Home Office does not put all Detention Service Orders online and b) guidance documents may be taken offline during revision by the Home Office.

Relevant policies you might find useful are included in the Overview and Sources section of this chapter. The important Adults at risk in immigration detention policy, first published in 2016, outlined in detail in Adults at Risk Policy (AAR).

These are other sets of Home Office policies, some of which are detention-related, available at www.gov.uk.

The most relevant piece of legislation in this context is the UK Borders Act 2007.

Under sections 32 and 33 of the UK Borders Act, people without British citizenship status who are sentenced to 12 months or more are subject to automatic deportation – regardless of how long they have lived in the UK - usually when their custodial sentences expire. During deportation proceedings and after the expiry of their custodial sentence, the person is excluded from Home Detention Curfew (HDF). They will be issued a ‘Detention Authority’ (IS91) and their detention in prison can continue under Immigration Act powers to detain.

There are many reasons individuals might not have secured British Citizenship status such as expensive visa application and legal fees. They may have British partners, children or even parents. They may be the only person in their family who didn’t “naturalise” in the UK, and thus be liable for deportation. However, without British citizenship (including where someone had Indefinite Leave to Remain or another form of regular status prior to their criminal conviction) they do not have the same rights as a British national. Automatic Deportation also impacts people who have been impacted by the introduction of the Nationality and Borders Act 2022 which increased the maximum penalty for “illegal arrival” to 4 years imprisonment and of “facilitating arrival” to life imprisonment. This makes it possible for people who have arrived via an irregular route to the UK to be charged with “illegal arrival” and then subject to deportation following a 12 month or more sentence.

There are some exceptions to automatic deportation which can be opposed on the following grounds:

This chapter provides a background and history on the use of prisons as places of detention; explains who can be detained in a prison; highlights key concerns about detention in the prison estate, and points to further reading.

You will also find prison-specific information and guidance throughout each of the chapters in this handbook. This information further highlights how the rules governing detention in prison are different to those governing detention in IRCs, and the shortcomings in protection and safeguards for people detained under immigration powers in prisons. In particular, for information on specific topics as they relate to people detained in the prison estate you can refer to:

• What to expect in prisons for visitors

• Prison Service Instructions & Probation Orders

• A fictional case study in the chapter

A Note on Language

People detained in prison under immigration powers are commonly referred to as “Foreign National Offenders (FNOs)”, “Foreign Criminals (FC)” or “Non-British Citizens” in policy and in the media. We will use these terms in inverted commas when we are making reference to particular policies, legislation or practice. Otherwise, we will talk about people held under Immigration Act powers in prison to talk about people who are detained in prisons for immigration purposes (i.e. they are not in prison serving a sentence for a criminal conviction).

This is because the use of language such as “FNOs” positions people as outsiders, it fails to recognise the difference in people’s experiences, and it conflates existing biases that are closely tied with race and racial hierarchies. These terms do not reflect how people affected by these policies see themselves, some of whom were born and raised in the UK and identify as British. And, this language criminalises a particular group of people who are already affected by legislation and rhetoric which position migration as a crime.

Visitors play an important role in re-asserting that people in detention do belong in UK communities - even if this is not recognised by UK authorities - and bridging the divides that are created by detention. How we talk about people is an important starting point.

• Direct people you are visiting in detention to where they can find guidance and instructions relevant to their general treatment in detention/prison and their entitlements. You can print and provide hard copies of guidance documents for the person you visit if they wish.

• Take some time to familiarise yourself with Home Office and Prison Service guidance for staff and contractors as background reading. This will enable you to better discern situations where the person you visit is not being treated the way that you think they should be and raise your concerns with your group or with AVID.

• AVID and our members are regularly consulted on Detention Service Orders (DSOs) when they are being updated by the Home Office. Visitors can support by responding to calls for input, identifying recurring issues, trends and recommendations.

The statutory Detention Centre Rules (2001) are a piece of legislation which govern day to day life in IRCs.

The Detention Centre Rules set out that the purpose of detention is:

“3.—(1) ….to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make the most productive use of their time, whilst respecting in particular their dignity and the right to individual expression. (2) Due recognition will be given at detention centres to the need for awareness of the particular anxieties to which detained persons may be subject and the sensitivity that this will require, especially when handling issues of cultural diversity.”

The Rules set out what services and conditions should be provided for people in detention, including welfare services, legal advice, communication and visits, ministers of religion, washing and bathing, and time in the open air.

The Short-Term Holding Facility Rules (2018) are a piece of legislation which set out the equivalent rules for Short-Term Holding Facilities. They give the Home Office wide powers in designating a place as a short-term holding facility. The publication of these rules came after years of lobbying from AVID and others in the sector on the lack of rules governing these facilities. Much of the Short-Term Holding Facility Rules are lifted directly from the Detention Centre Rules and mainly apply to residential short-term holding facilities (RSTHFs), for which there is a time limit on detention of 5 days (with the possibility of extension to an absolute maximum of 7 days). In 2022, following controversy in Manston camp where people were held unlawfully, these rules were amended to include a new category of detention centre - “residential holding rooms” – where people can be held for up to 96 hours (unless a longer period is authorised by the Secretary of State) and for which many of the Short-Term Holding Facility rules are disapplied.

The Detention Centre and STHF rules do not apply to certain other types of places of detention where individuals may be detained under Immigration Act powers including police stations, hospitals, young offender institutions, prisons and remand centres.

People in IRC’s and in STHF’s should be provided with a copy of the detention centre rules. This in the form of a “compact” which details their rights in detention centres and should be in a language which they understand (and a full set of the rules on request).

The intentions expressed in these statutory Rules are put into operation by the Home Office by means of Detention Service Orders and by means of Detention Services Operating Standards for private contractors.

Media reporting, public opinion, and political concerns about “foreign national criminals” in the UK, including how they are treated in detention, were and continue to be shaped by what came to be known as the “foreign national prisoner crisis” in 2006 [1]. This spiralled in April 2006 when it became a media scandal that more than one thousand “foreign criminals” had been released from prison over the preceding seven years without first being considered for deportation by the then Immigration and Nationality Department (IND).

“The ‘foreign national prisoner crisis’ surfaced amid more general moral panic about the number of migrants, especially asylum seekers who had been arriving in Britain over recent years. New Labour had been in power for nine years at this point and, whilst they had demonstrated their steadfast commitment to draconian immigration policies, they had not done enough to assuage the Conservative opposition and the tabloid press. As such, when the “foreign prisoner crisis” hit, it was made to represent not only Labour’s lack of control over immigration, but also the governments soft touch approach to crime and welfare. The ‘foreign criminal’ emerged here as a kind of ‘perfect villain’… with far reaching and ongoing consequences for policy and practice.”

(extract from Deporting Black Britons, Luke De Noronha)

This event continues to shape ministerial and Home Office approaches to policy making. After the ‘crisis’, the Home Office took a precautionary and punitive approach. Legislation was rushed through introducing a presumption in favour of deportation for so called “foreign criminals”, in an attempt to remedy the criticisms of the Home Office, by then labelled as “not fit for purpose”.

Deportation and detention replaced rehabilitation and integration.

From 2008 onwards, people subject to deportation were usually moved to the IRC estate after serving their custodial sentence, often subject to extended periods in detention.

Under operational pressure in 2011 the Home Office entered into a Service Level Agreement with what was known then as The National Offender Management Service (NOMS, now HMPPS), under which a number of places in prisons were made available for people detained under immigration powers. Having paid for these beds the Home Office intended to use them and over time the proportion of people detained in prison increased.

During the COVID-19 pandemic, the number of people detained in prisons under Immigration Act powers reached its peak of 665 people detained in prisons in December 2021 [2]. At this time, people held under immigration powers in prisons outnumbered people held in IRCs and RSTHFs. This was also at a time when prison regimes were even more restricted and people were held in their cells for as long as 23 hours of the day in stark contrast to the detention centre rules which state that people held under immigration powers should be in a “relaxed regime” with “as much freedom as possible”.

More recently, numbers have decreased and there were 254 people detained in prisons under immigration powers at the end of June 2023, with visitor groups seeing people transferred more quickly to IRCs. When people are moved from prison to IRCs, they often act as support systems for those detained, as their experiences of prison have somehow shaped their resistance to power imbalance, and they are more likely to understand the UK systems.

The Immigration Act 1971 does not specify where people under its provisions should be detained. The Home Office uses the prison estate as an extension of the IRC estate in times of emergency and to detain people deemed to pose a risk to safety and stability in IRCs.

The Home Office’s Detainee Population Management Unit (DEPMU) decides if people detained are to be held in a prison or an IRC. The decision to keep individuals in prison is made not by an immigration judge, but by a junior civil servant [1]. The Detention General Instructions set out a number of considerations to determine whether someone should be detained in prison [2]. However, over time the use of prison as a place of detention has fluctuated and largely been determined by external influences resulting in people remaining in prison post-sentence regardless of having been assessed to pose a particular risk that requires that they remain there. As we discuss later in this chapter, this practice – widely referred to as “double punishment” - presents unique disadvantages for people impacted where a stricter carceral regime continues as opposed to a slightly more liberal regime at IRCs.

1. HMIP-Immigration-detainees-findings-paper-web-2015-1 PDF ()

The HM Prison and Probation Service has a large number of rules, regulations and guidelines by which prisons are run. People detained in the prison estate post-sentence are subject, alongside other prisoners, to the Prison Service Instructions (PSIs).

PSIs cover all aspects of prison management, regimes, and sentencing, including punishments and incentives, visiting, and communication. For example, new PSIs published during 2018 dealt with prison adjudications and records information management.

There are a small number of “foreign national” specific PSIs (see “Overview and Sources”). Be aware that these may not contain the most up to date immigration law or Home Office procedures, as these changes seem to take longer to manifest in revisions.

PSIs have an expiry date. In practice, revised versions are often not issued before the expiry date, or new legislation or reorganisation of prison and probation services dictates early revision. Until July 2009 Prison Service Orders were also issued, long-term mandatory instructions intended to last indefinitely and as such without an expiry date. Current PSOs remain in force until replaced by a PSI or cancelled.

“Foreign national offenders” (FNOs) who are subject to a licence once the custodial part of their sentence is finished should be treated in the same way as British citizens on licence, whether they are in immigration detention or on immigration bail and living in the community. Guidance for offender managers and supervisors, and probation officers, are relevant to people held in prison under immigration act powers. In practice, once someone is moved to an IRC, their overworked probation officer will assume they will be deported and are unlikely to proactively seek regular contact with them. If someone seeks release from detention during their licence period they will need the cooperation of their probation officer, and it may be helpful to consult HMPPS guidance. For example, Prison Service Instruction (12/2015) Licence conditions, licences, and licence supervision notices.

Visitor groups provide support in different ways, depending on the centre or prison they visit in and their own ways of working:

Social visits

Some groups organise visits in the same way as friends or family would, known as social visits. After receiving a request for a visit, the visitor will call the detention centre and book a time to see the particular person in the visits hall. Visitors who visit in this way are subject to the same rules as all visitors to the detention centre.

Access beyond the visits hall

Some groups have negotiated arrangements with centre management so they can access particular areas and resources. This might include:

• Being allowed to facilitate a ‘drop-in’ space in the visits hall where people do not need to book in advance to attend

• Being allowed to access spaces within the detention centre itself to:

  • Run a “drop-in” session to reach out to people who might not have heard about the visitor group

  • Run information workshops or group activities

Visiting on the phone or video call

During the covid-19 pandemic a number of groups developed arrangements where they could meet with people or run workshops through video-conferencing facilities. They also organised for volunteers to offer emotional support over the phone. Many groups continue to provide support over the phone or via skype to complement in-person support, or when there are restrictions placed on visiting.

Short term holding facility visiting

People detained in short term holding facilities are often held only for a day or two, limiting the opportunities for people in detention to reach out for support. Groups visiting in these detention centres have agreements with centre management to visit on set days during the week, calling ahead to check whether there is anyone currently detained there. Visitors are often able to introduce themselves to those detained and ask if they would like to see a visitor there and then.

Many groups offer both 1:1 social visits in the visits hall and some kind of drop-in or workshop within the centre with the aim of being able to meet more people. While there are benefits, visiting within the centre itself brings with it challenges around remaining and demonstrating independence from centre management.

The Legal Aid Agency gives contracts to a number of solicitor firms to run regular legal advice surgeries in IRCs. Only provider firms with this specific type of contract can give publicly funded legal advice in IRCs. If a lawyer is already representing someone on Legal Aid, they need to have done 5 hours work on the case in the event the person is detained, to continue representation if they don’t have a detained contract. Otherwise the file is meant to be closed and detained person go to a surgery.

The Detained Duty Advice Scheme (DDAS) gives 30 minutes of free non-means and non-merits tested legal advice to people held in immigration removal centres. To book an appointment, people in detention should ask at the library for an appointment or ask a welfare officer. People in detention can refer themselves directly to a provider who has a contract for that centre, outside of the surgeries. However, the provider can refuse instructions in this circumstance if they do not have capacity (they are only obliged to take on clients seen at a surgery).

It is useful for people in detention to gather information in advance of a DDAS appointment to allow the provider firm on the rota for that day to apply the means and merits test. During the appointment, the provider should assess the persons eligibility for legal aid and give advice with regards to bail. The thirty minute slot given at these surgeries is not sufficient to give any substantive advice. At the end of the appointment, they must give the person in detention a copy of the appointment summary [1]. A decision on whether or not to assist that person is generally taken later off-site. If they are assessed to meet the criteria for legal aid, their case should be taken on by the provider. If someone you are visiting attends an advice surgery or sees a lawyer, encourage them to obtain their contact details so the lawyer can be chased later.

If the merits and means test is passed the provider must take the client on and continue to represent them with respect to detention issues until they are released from detention or removed from the UK. With respect to the substantive immigration issue, the provider must represent them so long as the means and the merits test continue to be met. If neither are met, they must still continue to represent in respect to detention issues, including bail even if they are not being represented in their bail matter. In practice however, it appears that this happens infrequently. Solicitors routinely close the client’s file at this point, leaving people without legal scrutiny of their ongoing detention. As a visitor you may be able to help by deciphering correspondence, and helping the person you are visiting to challenge a decision to cease providing advice on detention issues.

If someone is transferred to another IRC outside the geographic area of the legal aid contract of his, her or their solicitor, that solicitor can often no longer act for them, and they will need to seek another legal aid solicitor. This may take some weeks. If someone who you visit has just been transferred to the IRC it could be helpful to bring this to their attention so they can take any necessary steps to ensure continuity of advice and representation. You can also support them to contact their previous representative, make them aware that the person you are visiting has been transferred and clarify if they will continue to offer representation.

Those who are transferred between detention centres from England to Dungavel in Scotland will be unable to continue to use the same legal representative because each country has a separate legal aid system.

AVID receives the rota for the Legal Aid Agency’s Detention Duty Advice Scheme in IRCs. These are made available to group co-ordinators and you can contact them or AVID to receive these rotas.

Challenges

The DDAS used to be delivered by a select group of nine solicitors’ firms who had a great deal of experience representing detained people. Changes in 2018/19 resulted in a significant expansion of DDAS providers from 9 to 77. Of these, 38 firms had no prior experience with legal aid work at all and 64 firms had no prior experience of the DDAS. Many have dropped out, but there are still around 45 DDAS providers.

There have been ongoing problems following this expansion. A legal challenge to the scheme failed but revealed that in 2022 a “significant number of providers had recorded no or hardly any bail claims despite seeing numerous clients. 9 of them have never made a single bail application despite having carried out approximately 1,000 advice sessions in total” (R (Detention Action) v Lord Chancellor [2022] EWHC 18 (Admin)).

1. https://legalaidlearning.justice.gov.uk/pluginfile.php/23343/block_html/content/DDAS%20webinar%20September%202023.pdf

Members of the AVID network who visit in prisons are:

• Asylum Welcome supports people held in HMP Huntercombe. They refer and liaise with solicitors and other external organisation in areas of need.

• LOSRAS run a visitor’s project to support people detained at HMP Lewes.

• Detention Action have an advice line for people detained in prisons in addition to casework support and workshops in some specific prisons.

• Manchester Immigration Detainee Support Team (MIDST) visit and support people detained in HMP Risley.

• Midlands Migrant Support visit and support people detained in HMP Morton Hall.

• Solidarity Detainee Support (SDS) visit and support people detained in various prisons in the UK.

Other useful organisations are:

• Bail for Immigration Detainees (BID) is a legal advice charity with a dedicated prisons legal team working with people detained in prisons to achieve their release.

• Prisoners Advice Service (PAS) provides legal advice and information on prison law (not immigration law) to adults held in prisons, including people held under immigration powers. PAS advice line numbers are globally cleared in the prison estate, so do not need to be added to individual telephone PINs.

• Hibiscus Initiatives provides welfare and advocacy support in prisons for marginalised women in prisons and IRCs.

The rights of people detained in prison under Immigration Act powers are hampered in unique ways. People detained by the Home Office in prisons are held outside the scope of the statutory Detention Centre Rules, the Detention Services Operating Standards, and Detention Service Orders. Bail for Immigration Detainees (BID) has described the placing of immigration detainees in prisons as “administrative detention within a criminal justice framework” [1].

It is important to acknowledge that people’s experiences vary and the comparison between prisons and IRCs is not always helpful, especially given the need to address the inherent harm caused by detention no matter the setting. Nevertheless, when it comes to upholding well accepted norms and international standards on detention, it is evident that prisons are not appropriate settings to do this, and their failings need to be made explicit for this reason. AVID's position is that immigration detention as a whole must end. As a step towards a more humane system and to alleviate the immediate suffering of people in detention, AVID has been amongst others in the sector advocating for parity for people detained in prisons.

Visitors meet with people detained in prison for whom the following challenges are common:

Home Office Casework and Prison Staff

• The Home Office routinely notifies people in prison that they are liable to indefinite immigration detention with little notice, creating severe distress among many.

• People detained have difficulties communicating with Home Office officials. Many people in detention report difficulties in scheduling face-to-face meetings and when they are able to do so they struggle to gain meaningful updates on their case.

• Professional interpretation is frequently not used when prison and Home Office officials communicate with people detained in prison. This makes it especially difficult to discuss complicated legal issues, the status of their cases, and legal documentation.

Access to Justice

• Whilst people held under immigration powers in prisons should have access to 30 minutes of free legal advice[2] the Legal Aid Agency does not provide free immigration advice surgeries, even in prisons holding large numbers of people under immigration powers, making it very difficult to actually access legal advice.

• Access to justice is further hindered by practical barriers to contacting legal advisors, the courts, and the Home Office. Being unable to use mobile phones, fax machines, or access the internet, and being restricted largely to the postal system, make it difficult for people detained in prisons to respond quickly to time-sensitive documents, and seek release from detention or independent scrutiny of their ongoing detention. Individuals are only allowed to call people whose numbers have been approved by Prison staff, creating a barrier to access to legal services. This process can take time and is done on an individual basis meaning that even if a number to a solicitor, for example, has been approved for one person if does not guarantee it will be approved for someone else.

• These practical barriers act to slow down progress in their substantive immigration case.

Mental health

• Reports of isolation, anxiety and mental health distress are common amongst people detained in prisons, exacerbated by prolonged periods of detention without knowledge of release. In HMIP’s 2022 inspection on “The experiences of immigration detainees in prisons” they reported:

  • “Twenty-seven of the 45 detainees we interviewed reported having current mental health needs, ranging from low mood and anxiety to serious mental illness. Most of the detainees who described low mood and anxiety linked this to their detention, and their lack of knowledge over what would happen to them and when they would be released.”

• People with recognised vulnerabilities, including torture victims, are not identified on a regular basis. There is no mechanism in prisons akin to the imperfect Rule 35 system in detention centres designed to identify anyone whose health may be adversely affected by ongoing detention and bring them to the attention of the Home Office for consideration of their release.

1. Bail for Immigration Detainees, (2014), ‘Denial of justice: the hidden use of UK prisons for immigration detention.’ p.12. Available at

2. https://www.gov.uk/government/news/civil-news-immigration-and-asylum-advice-in-prisons

Legal aid is public funding for legal advice and legal representation across various categories of law, including immigration law.

Before representing an individual in either their substantive or detention case under legal aid, legal advisors must undertake a two-part test. This is known as the “means test”. Firstly, they must satisfy themselves that the individual needing advice has insufficient financial means to be able to pay for legal advice themselves. The exact amount of money or income someone is allowed is prescribed in a strict calculation provided by the Legal Aid Agency. Sometimes the advisor will need evidence of that person’s finances, such as their or their partner’s bank statement.

The second test is the “merits test” and broadly means that if the work is carried out it is likely to be successful. You may hear solicitors talking about the ‘means and merits tests’, and people in detention saying ‘my case has no merit’ if they have been refused legal aid. The merits test is applied according to specific criteria, but there is a large subjective element to the process, as well as a limit on the number of legal aid cases a firm may take on. It is not therefore uncommon for someone to be refused legal aid by one firm operating in a detention centre only to be granted legal aid by another.

Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) not all aspects of immigration law are within the scope of legal aid, and so not all cases are automatically entitled to legal aid even if the above two tests are satisfied. As a general rule of thumb, only two types of immigration law are always within scope. These are (1) applications for permission to stay in the UK on the basis that if a person is removed from the UK they risk being hurt or killed and (2) cases challenging someone’s detention and applications for immigration bail.

This means, for example, someone wishing to resist deportation because their family live in the UK is not automatically entitled to legal aid funding for their case. Sometimes legal aid solicitors are not funded for certain elements of their detained client’s case, which makes advice giving complicated and unsatisfactory as they may be unable to advise on the underlying reason for a person’s detention and intention of the Home Office to deport their client. Similarly, there is no automatic right to legal aid for work relating to a person’s trafficking or modern slavery claim before they receive a positive reasonable grounds decision.

However, LASPO also introduced a scheme called Exceptional Case Funding (ECF), intended to act as a ‘safety net’ to ensure that funding is available so that an individual’s rights would not be breached. This means that you can still get legal aid funding for types of immigration work that would otherwise be out of scope if you can make a successful ECF application. Initially it was extremely difficult to get a grant of ECF for immigration cases. Following a series of legal challenges, the threshold for ECF has been lowered by the Legal Aid Agency, and this funding should be more easily available. This may be useful for a person detained under immigration powers subject to deportation action who wants to appeal their deportation on the basis of their private or family life. Individuals can make the initial application for ECF themselves and forms are easily accessed online by searching for “Exceptional Case Funding”.

The Legal Aid Agency administers legal aid in England and Wales, and the Scottish Legal Aid Board and the Legal Services Agency Northern Ireland in their respective territories. The requirements for legal aid differ in Northern Ireland and in Scotland [1].

1.

The Home Office Detention General Instructions is a policy manual published for use by Home Office staff responsible for making decisions about immigration detention. The Home Office previously published Enforcement Instructions and Guidance (EIG) which addressed the same topics. The EIG has now been withdrawn.

The Detention General Instructions policy provides guidance on the power to detain, decisions to detain and levels of authority to detain, detention procedures, how often detention reviews should be carried out, factors influencing the decision to detain and criteria for detention in prison, among other matters. It also addresses the use of detention for people detained with criminal convictions, pregnant women, vulnerable adults termed “adults at risk” and children impacted by detention. When children are likely to be impacted by detention, staff must evidence that they have considered the impact of detention on them in accordance with the need to safeguard and promote their welfare in the UK. [1]

The Detention General Instructions policy recognises that detention should be used sparingly and for the shortest period necessary. It outlines the limitations of detention in accordance with domestic law and the European Convention of Human Rights (ECHR). These are the Hardial Singh principles, taken from an early immigration detention case. These principles are also outlined in Lawfulness of Detention. For ease of reference, these principles are:

1. The Home Office must intend to remove or deport the person/prevent unauthorised entry and can only use the power to detain for that purpose;

2. The person may only be detained for a period that is reasonable in all the circumstances;

3. 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;

4. The Home Office should act with reasonable diligence and expedition to effect removal.

The Detention General Instructions were updated on 28th September 2023 when section 12 of the Illegal Migration Act 2023 came into force. Section 12 permits detention for a period that the Home Office considers “reasonably necessary” in order to make a decision on an individual’s removal or to actually remove them. Section 12 applies to all detention purposes (not just people who are impacted by the other provisions of the Illegal Migration Act). This impacts the third and fourth principles outlined above and make it such that:

“It is for the Secretary of State, rather than the courts, to determine what is a reasonable period of detention in order to enable the specific statutory purpose to be carried out (for example, to enable the examination, decision, removal or directions to be carried out, made or given), subject to any statutory limitations. This emphasises that the Secretary of State is the primary decision maker who is in possession of all the facts surrounding a person’s detention. Therefore, in reviewing any unlawful detention claims, the Courts should approach their task by examining the reasonableness of the Secretary of State’s assessment, rather than by substituting their own assessment of the reasonableness of a period of detention.” Extract from the Detention General Instructions (page 9 and 10).

This section of the Detention General Instructions is useful reading to understand how the Home Office see’s this change introduced by the IMA affecting previously applied principles on detention. As this change takes more effect, what is “reasonably necessary” is likely to be subject to legal challenges which scrutinise the Secretary of States assessment of what is reasonable.

1. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires certain Home Office functions (including the power to detain) to be carried out having regard to the need to safeguard and promote the welfare of the children in the UK. Statutory Guidance on the s.55 duty titled, “Every Child Matters” was published in 2009 and is still applicable:

AVID receives regular updates from visitors and visitor groups concerned about the quality of legal advice being received by people in detention.

Many lawyers and paralegals work incredibly hard and may do unfunded elements of their work pro-bono (free of charge) to assist those held in the face of a process-heavy and underfunded legal aid system. Lawyers must balance competing duties to their clients, duties to the courts, and duties in respect of public funds. An understanding of the constraints on lawyers can help build understanding and constructive relationships between lawyers and visitors (more on this in Visitors and legal advisors: constructive relationships).

However, legal aid fee structures do not incentivise good quality legal work. Firms with legal aid contracts are those deemed by the Legal Aid Agency as good enough to provide an adequate service to clients. A legal aid contract is not a guarantee of good practice or good quality work and does not require anything more than adequate but limited communication with clients [1]. The Legal Aid Agency’s quality assurance process, using a peer review system, focuses on the quality of the processes and outputs rather than the quality of service to the person in question and the eventual quality of the outcomes of their case.

AVID has consulted solicitors, experienced visitors, and other specialists to put together the list of indicators below. This list is not exhaustive. A legal representative may provide entirely appropriate, adequate advice and client care without doing everything on the list. We would caution you against telling anyone to expect their legal representative to meet all these criteria in all circumstances.

Duties and good practice in general

When a detained person first instructs a representative, they should receive a ‘client care letter’. This is an important document confirming who is acting for the client, the instructions of the client, what work that will be done at the outset, how the legal work is regulated, and how and to whom the client should complain about services provided or the bill for the work.

Although lawyers are not obliged to undertake legal aid work, where legal aid may be available a lawyer ought to inform his or her client, or potential client, of that fact. If a lawyer is acting privately, they ought to advise the client of the fee, or likely fee, taking into account the possible duration of the work the lawyer is undertaking.

Lawyers undertaking legal aid work have particular obligations in respect of legal aid. Legal aid is generally subject to means and merits testing as described in . The client’s eligibility for legal aid will need to be reassessed periodically.

Lawyers owe a duty to a court to ensure that the court is not misled. This extends to an obligation to ensure that a court is aware of any caselaw (decisions or judgments) that are not in favour of the lawyer’s client’s case. This also extends to ensuring that a court is not deceived by the evidence given by a witness, including the lawyer’s client.

Clients have duties to lawyers also. It is vital to the client-lawyer relationship that it is founded upon trust and confidence. Breaches of this trust and confidence by a client may cause a breakdown to this relationship.

Elements that contribute to good quality legal advice

There are numerous ways that a lawyer’s good practice can enhance the strength of a case.

• Gathering and presenting evidence: the advisor should listen to the client and take all possible steps to present a strong case built on well researched evidence and the use of appropriate witnesses. The advisor should allow the client to read and review their statement of evidence.

• Case management and conduct of the case: evidence and documents should be submitted on time, and made available to the client upon request. The lawyer should regularly be following up with the Home Office, take a proactive approach to the case, and manage client expectations. Clients should be given reports of progress on a case and informed of their options and prospect of success.

• Communication: good listening skills, full attention and appropriate (positive) body language given to the client during meetings. The use of professional and neutral interpreters to pass evidence to the legal representative. Provide copies of all statements, and all representations and correspondence sent on the client’s behalf, in a language that clients can understand.

Detention specific elements of good quality legal advice

A good representative should:

• Explain the rules governing legal aid applications, including legal aid for representation in court;

• Give reasons and information on requesting a review of a refusal of legal aid if a decision is made at any point that legal aid is not available for representation at a court appearance;

• Advise a client about evidence that would be helpful and encourage them to gather such evidence;

• Prepare clients for interviews, even if the solicitor or another representative cannot be present at those interviews;

1.

Anyone who is a member of a professional body such as The Law Society or the Bar Council, and their Scottish and Northern Ireland counterparts, or accredited by the (previously known as Office of the Information Services Commissioner/OISC), can give immigration legal advice. In practice, this means solicitors and IAA accredited advisors, those working under their supervision, barristers, and authorised members of the Institute of Legal Executives.

Otherwise, it is a criminal offence in the UK to give unregulated immigration advice or services. The consequences for a detained person of incorrect advice, or incomplete advice, however well meaning, could have serious ramifications.

Anyone held in immigration detention will have two separate but connected needs for legal advice. Firstly, they will require advice on their substantive immigration case, or put another way the underlying reason for their detention and need to regularise their immigration status. The outcome of a person’s substantive case will determine whether they are allowed to remain in the UK legally in the long term. Everyone’s immigration case will be different, depending on that persons specific circumstance. For example, some people you meet will have an outstanding asylum claim, others may wish to make an application for permission to stay based on their family being in the UK. Others still may already have permission but the Home Office wants to deport them due to a previous conviction.

The second need for legal advice is that detention itself needs to be kept under review by an accredited immigration advisor, regardless of why they are being detained. If they have not been removed or released from detention by the Home Office within a reasonable period, or if there is no real prospect of this happening going forward, their immigration advisor should be making regular applications for their release on bail. Indeed, solicitors working on an IRC legal aid contract are required by the Legal Aid Agency to make regular applications for release. If someone's detention is/has become unlawful, they could be referred to a public law solicitor to assess the merits of a legal challenge to their ongoing detention.

The law concerning all these applications is complicated and advice on immigration matters can only be given by a qualified, accredited immigration advisor or solicitor.

One of the greatest injustices of immigration detention in the UK is that a significant proportion of people detained are not able to access good quality legal advice and representation throughout their entire time in detention. People detained under immigration powers are in an intrinsically vulnerable position and so require legal advice to address both their substantive immigration case (i.e. their application for seeking protection, entry or stay in the UK) and to challenge their ongoing detention by making regular applications for release.

Despite this essential need, access to legal advice for people in detention continues to deteriorate as a result of cuts to legal aid in the UK and due to changes made to the contracts with law firms who provide advice.

Legal advice is a topic of utmost concern and frustration for people in detention. This may be because, for example, they are trying to get a solicitor to help them but they do not qualify for legal aid under the current rules, or they are trying to make contact directly with their legal representative but cannot do so. As a visitor you will share that frustration, but there are ways you can help the person you visit.

This chapter explains what kind of legal advice people in detention need and where they can get it. It provides guidance on how visitors can provide appropriate support and assistance both to those with a legal advisor and those who need one.

A visitor must be aware of whether or not the person detained who they are visiting has a legal advisor. If they are unrepresented, they will need a legal representative and a visitor may be able to help them to find one. It is very common for a visitor to be asked to help find a legal advisor for someone they are visiting, and visitors frequently contact AVID to express their concern about poor access to immigration advice for a person detained under immigration powers. Some AVID member organisations have successfully lobbied the Legal Aid Agency for more legal surgeries in IRCs, but it still feels like a struggle for a person detained under immigration to get advice, and this can be most hugely stressful and upsetting when removal is only days or hours away.

People detained in IRCs may seek immigration legal advice free of charge through the The Legal Aid Agency Detained Duty Advice Scheme (DDAS) in IRCs.

You can find out who the legal aid provider firms with an IRC contract are by checking the current rota, available from AVID or your group coordinator. You should check with your group coordinator how sign-up works locally so you are ready to offer this information to people in detention - it is usually done by making a request for a lawyer in either the library or the welfare centre. Referrals can also be made to a provider who has a contract for that centre outside of the surgeries. However, the provider can refuse instructions in this circumstance and are only obliged to take on clients seen at a surgery. Research shows that many in detention are not aware of the scheme, that it operates in all IRCs, or that the advice given will be free of charge. Visitors can help by ensuring that this is understood. You can also prepare someone with what to expect before an appointment, encouraging them to attend the appointment prepared and make sure that they ask for an appointment summary.

Solicitors firms and other advice organisations who operate under legal aid cannot give immigration advice under legal aid to someone detained in an IRC unless their firm or organisation holds an exclusive IRC contract with the LAA to do so. A firm that purports to be able to give legal aid advice but does not have an IRC contract is probably best avoided.

Those who can pay fees for private work are free to choose their own representative from any firm or other legal advice provider, they are not limited to a firm on the rota for their IRC that week. It is a good idea for a detained person to conduct their own research on the quality of a legal advisor before handing over money to them. Unfortunately, rogue solicitors or people who pass themselves off as immigration lawyers have been known to operate in detention centres, preying on the desperation of people who want to remain in the UK. Their names are generally passed around by others in detention. Typically, they ask for substantial payments in advance and then disappear.

People in detention may also seek advice from a law centre, or an accredited legal charity like Asylum Aid, Coram Children's Legal Centre, or Bail for Immigration Detainees (BID). Not for profit advisors and private firms are not restricted by the LAA’s exclusive arrangements for providing legal aid advice in IRCs and can operate in any IRC or prison.

In certain circumstances, visitors can refer to solicitor firms who specialise in human rights and public law detention cases. These firms can support people when there is reason to believe that detention is unlawful, for example because of a human rights abuse or someone is detained when they should not be (e.g. because there is no real prospect of removal). These firms are usually unable to meet the demands for their services and will often prioritise cases for existing clients or where the facts of a case are particularly egregious. You can find out more on their websites on the types of claims that they specialise in and they might be looking for cases to support a specific type of claim where they have existing public cases in that area.

If you believe that the person you are visiting is detained unlawfully, and the person has given you expressed permission, you can contact a law firm to see if they can assist that person. The best way to do this is via email, providing as much detail of the case as you can.

HM Inspectorate of Prisons (HMIP), the National Offender Management Service, and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), have all stated in successive years that prisons are not suitable for holding people for administrative immigration, other than for very short periods, or in exceptional circumstances where specific risk factors have been identified.

In HMIP’s most recent 2022 thematic review on the use of detention in prison, they found a failure to meet their previous recommendation that:

Immigration detainees should only be held in prison in very exceptional circumstances following risk assessment and with the authority of an immigration judge. (Recommendation for People in Prison: Immigration Detention, HMIP Findings Paper 2015).

In the most recent visit to the UK by The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to examine the treatment and conditions of detention of persons held under immigration legislation (2023) they re-asserted:

At the outset, the CPT wishes to reiterate that, as a matter of principle, it considers that persons who have served their prison sentence should not continue to be held in prison under immigration legislation but should be transferred to an IRC. This is because immigration detention should not be punitive in character: it is not a sanction or a punishment. Therefore, persons in immigration detention should be afforded both a regime and material conditions appropriate to their legal situation.

Legal representatives are often unaware that their client has been transferred by the Home Office to another IRC. With consent, a visitor can inform the representative, and assist with any handover to another visitors group for assistance with finding a new representative if required, and in line with the guidance of the group.

If the person has a solicitor or an accredited immigration advisor, it is important that any contact between them and the visitor is constructive, and does not undermine the relationship between the representative and their detained client. Understanding each other’s distinct roles is central to being able to work in harmony for the benefit of person in detention - “A visitor who is engaged in advising or assisting a person in detention with the same matter upon which a lawyer is acting for the client risks breaking the relationship between client and lawyer.” [1]

As a visitor, your relationship with a person in detention's solicitor may be one of actively working in partnership or more often will take the form of occasional contact. A solicitor does not have an obligation to take your calls or provide you with any information on the work they are doing (or not doing) for their client. If you can provide them with support or assistance that they need, such as gathering essential information, then this will support constructive contact. Many solicitors also value the role visitors play in providing emotional, relational and signposting support that is outside of their role.

[1] ILPA, (2008), How visitors and lawyers may work together. Notes accompanying a discussion at AVID coordinators conference 2008.

Visitors are allowed to give generic information to people in detention, as well as signpost them to where they can find out more, without any requirement for Immigration Advice Authority/IAA (previously OISC) accreditation (you can find more information about IAA in Who can give immigration legal advice?). Visitors fulfil a hugely important role by contributing at this level.

Increasingly there is more and better information, including self-help information, available for people in detention, and visitors can ensure that this information gets to them. Internet access is still unreasonably restricted in detention, and prohibited in prisons, meaning that information available online may need to be made available in a hard copy and handed to a person in detention. Visitor groups can also publish and distribute their own leaflets and other printed information, as this does not count as ‘advice given to an individual’.

The IAA appreciates the difference between advice-giving and information-sharing or support. It has provided AVID with the example of a visitor who explained to a person in detention the appeal form they had to complete needed to be done so in 10 days, as the person in question had insufficient English to understand the form. Explaining to them that they had to submit the form within 10 days, as is stated on the form, would not constitute advice-giving. Advice on how to complete the form and what to include, however, is different and would constitute legal advice. Advice not regulated by IAA includes advice given on actions against detention management companies, or the Home Office, in relation to conditions of detention.

There are some grey areas. The IAA has contributed the following section to illustrate what constitutes ‘advice giving’ under IAA regulations. Even where advice is not regulated it is still important to proceed with caution and speak with your co-ordinator before giving advice in an area that you are not experienced in. Giving incorrect guidance can still cause harm even if it is not legal advice and some of the examples should be referred to members of your visitor group with casework experience. You can also contact AVID for further support.

There are no Legal Aid Agency immigration advice surgeries operating in prisons unlike in IRCs, even in those prisons holding a large number of a people detained under immigration powers or those prisons that are solely for “foreign nationals”.

In February 2021 in the case of SM v Lord Chancellor the High Court found the lack of immigration legal advice in prisons to be unlawful. In response to the judgement, on 1st November 2021 the Legal Aid Agency amended the legal aid contract to provide a legal advice service for all people detained under immigration powers held in prison, where they can access 30 minutes of advice without reference to their financial eligibility.

How this is supposed to work is the detained person calls a law firm with a legal aid contract, explains they are being held in prison under immigration powers and arrangements can be made for that person to receive 30 minutes free legal advice.

• A list of legal aid providers should be made available by the prison. A list of all legal aid lawyers (in England and Wales is available here on this .)

The reality is that people still struggle to find representation. A report by BID on the issue found “Overall very few people have been successful in contacting immigration legal aid solicitors under the scheme, and only 11% of participants said they received 30 minutes' immigration advice. People stated that it is virtually impossible to get any assistance with immigration advice from within prison without assistance provided by people they are connected to outside of the prison, such as friends or family. Officers were described as unhelpful or uncaring, or were seen to be discriminating against foreign nationals. All these problems are exacerbated for those who do not speak English." [1]

Visitors may be able to support a person detained under immigration powers by attending court as a McKenzie Friend. The principles set out in a number of cases before the Court of Appeal, including McKenzie v McKenzie [1970] 3 W.L.R. 4, make it clear that a person in court who is not legally represented (a litigant in person) has the right to have a reasonable assistance from a layperson, sometimes called a McKenzie Friend (“MF”).

The Lord Chief Justice of England & Wales has described McKenzie Friends as “non-lawyer assistants” who provide “reasonable assistance...to litigants-in-person (LIPs) in respect of legal proceedings”m[1].

‘Reasonable assistance’ has not been defined, but it can include:

• Providing moral support for the litigant in person

• Taking notes during a hearing on behalf of the litigant in person

• Helping to prepare case papers such as a chronology

The clerk at the courtroom or hearing room should be asked if a visitor can attend in this capacity before the hearing starts, and the judge will decide whether to grant permission or not.

With a few exceptions, bail hearings for a person detained under immigration are heard via video link. AVID member groups have in the past tried to negotiate access to video link suites for visitors who are trained as McKenzie Friends but this has proved difficult. There may be a role for supporting a person detained under immigration powers held in prisons, who are usually produced in person at FTT IAC (First Tier Tribunal, Immigration and Asylum Chamber) hearing centres. Regardless of which estate they are held in, a person detained under immigration powers are also produced in person for asylum appeal hearings and deportation hearings.

If a person is unrepresented, having someone with them in court can be a huge support and is greatly appreciated. If they have a legal representative, a Mckenzie Friend may still have a role to play with the agreement of the representative. McKenzie friends have come under greater scrutiny recently, especially in the family courts, as a result of the severe cuts to legal aid under LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012), and the rise of McKenzie Friends who charge for their services (sometimes called Professional McKenzie Friends).

[1] Lord Chief Justice of England & Wales, (2016), ‘Reforming the courts’ approach to McKenzie Friends A Consultation’ Available at

Visitors are often one of the first people a person in detention will complain to about their legal advisor, raising concerns of a general rather than specific nature. They may be reluctant to pursue a complaint.

The IAA will accept anecdotal or more general complaints though it cannot act upon them. Such general complaints may be taken into account as background to any subsequent investigation, or when giving consideration to renewal of registration, of an advisor or organisation. The IAA is not able to audit all accredited organisations and advisors each year, but general complaints may help them to target audits.

Things to bear in mind

It can be difficult to assess whether a problem with a legal advisor is due to the the lawyer being at fault or due to differing expectations.

As a visitor, the information you are given about the performance of a solicitor is generally second hand, and you should gather as much information as you can about the facts before taking steps that could jeopardise the client-legal representative relationship.

“Simply that a problem is real may not suggest that a complaint is the best way to deal with it. Contacting the lawyer (with the person in detention’s consent) may be necessary. The lawyer may not be able to discuss a case because of his or her duty of confidentiality; but this does not preclude a lawyer listening to a concern and, where appropriate, remedying a problem (e.g. by providing information to a person in detention, contacting them, investigating a concern in relation to their mental health).” [1]

We encourage you to speak to your group co-ordinator or to AVID if you become aware of ongoing complaints against a particular lawyer or law firm at the detention centre where you visit.

Immigration detention is harmful by its very nature. People who have been detained have described a feeling of suffocation from being locked up and separated from the community, without knowledge of when they will be released. At the same time, for the majority of people detained, there is a looming prospect of enforced removal. The risk of non-voluntary return can involve further danger to them, including a risk to their life. These extreme pressures are further exacerbated by widespread failures across the immigration detention estate including poor conditions, inadequate safeguards, mistreatment and difficulties accessing good quality legal advice.

“I was in a place for months and you don’t do anything. You don’t speak to people. You just get quiet. Sometimes now, I have the problem when I feel like I just don’t want to talk with anyone. Even now, I feel like I am in detention. The only difference is I’m on the outside. I can see people. Those months in detention, you close in on yourself.” (34-year-old man, detained for 3 months, 7doors)^[1]

It is well recognised - through the testimonies of people detained, in academic research, through public and statutory inquiries into detention, amongst national and international human right mechanisms and in evidence from organisations working in immigration detention - that detention has a profoundly negative impact on people. This can include increasing a person’s risk of self-harm and/or suicide, with such risks being increased by prolonged detention. The adverse effects on mental health do not just last during the time of detention itself but often continue after release.

It is against this very challenging backdrop that this chapter provides visitors with an understanding of safeguarding issues that can arise, a summary of the complex safeguarding policies and processes for people in detention, practical steps that can be taken as well as the important role that visitors play in providing emotional support and relief during someone’s time in detention. The final section deals with some important things to keep in mind for your own wellbeing.

^[1]

In addition to the direct harms caused by detention, many people enter detention with existing and complex health needs. These are worsened because of detention.

The environment of detention prevents identification of people with pre-existing health needs. Medical Justice explain that:

“Many detainees, because of past or present trauma, have complex health needs and find it difficult to access healthcare and this is exacerbated by short consultations, late screenings, poor use of interpreters, poor clinical assessments, and lack of adherence to clinical protocols.” (Medical Justice, 2015)^[1]

These longstanding concerns were borne out by the HMIP report concerning Harmondsworth (2024) which found continued evidence of these issues, including poor clinical assessments, inadequate screening, inappropriate use of interpreters and lack of observance of clinical and safeguarding protocols.

For people with mental ill health, there is recognition that access to treatment for these conditions is fundamentally constrained by the nature of detention. The 2021 Position Statement of the Royal College of Psychiatrists states:

“… we remain concerned about the limited nature and extent of the mental health care that can be provided in the immigration detention setting. Furthermore, treatment of mental illness requires a holistic approach and continuity of care; it is not just the treatment of an episode of mental ill health but an ongoing therapeutic input focusing on recovery and relapse prevention. Psychotropic medication by itself is very unlikely to achieve good outcomes unless it is given as part of a broader multi-modal therapeutic approach. Detention also severs the links with family and social support networks, adversely affecting recovery. For these reasons, the recovery model cannot be implemented effectively in a detention centre setting.”

^[1] Medical Justice, (2015), Healthcare in detention: Written evidence submitted by Medical Justice to the Shaw Review. Available at

Post-traumatic stress disorder, anxiety and depression

It is widely recognised that the population of people held in immigration detention have very high levels of trauma and high rates of mental illness.

“Research suggests that a high proportion of immigration detainees display clinically significant levels of depression, PTSD and anxiety, as well as intense fear, sleep disturbances, profound hopelessness, self-harm and suicidal ideation.”[1]

Rates of mental ill health including depression, anxiety and PTSD, are far higher among people in detention than in the wider population. A systematic review of the existing international clinical literature on this topic by Verhülsdonk and colleagues (2021)[2] included four studies of people in immigration detention in the UK. The researchers found overall that three quarters of people in immigration detention experienced depression, more than half experienced anxiety and almost half experienced post-traumatic stress disorder.

[1] , Royal College Psychiatrists Position statement (2021)

[2]

See the section above How do I know if a solicitor is doing a good job?

It is well documented that immigration detention causes harm to people’s mental health, that the impact on mental health increases the longer someone is held, and that this impact lasts well beyond someone’s release from detention. The fact of being held in immigration causes mental distress and illness, increases the risk of self-harm and/ or suicide, and also can act to exacerbate existing mental health problems.

A clear summary of the clinical research position that all detained people are at risk of harm caused by detention is contained in the :

“Detention centres are likely to precipitate a significant deterioration of mental health in most cases, greatly increasing suffering and the risk of suicide.”

Since the first immigration detention centre opened in the UK in 1970, detention has had a worrying history of abuse and neglect. As is explained later in this chapter, this has resulted in various government responses and changes to detention policy.

However, given the function of immigration detention is to remove people against their will, the system necessitates the use of force and coercion and – as history has shown – is therefore ripe for abuse from staff towards people in detention. In the inquiry into allegations of abuse at Oakington IRC - exposed through undercover reporting from the BBC - Steven Shaw (former Prison and Probation Ombudsman) shrewdly remarked: 

“That said, the very purpose of immigration detention is to exercise coercive power over foreigners prior to their removal from the country. It is perhaps not a surprise that this function, combined with the attitude towards asylum-seekers and other would-be immigrants of some sections of the media, can become a breeding ground for racist and abusive word and deed.”[1]

^[1]

Short stays in detention, regular transfers within the immigration detention estate including from prisons, and the use of agency nurses and doctors all act to inhibit continuity of care for those detained. People who, prior to being detained were living in the UK, face disruption to existing healthcare arrangements, prescriptions, and any ongoing or scheduled treatment. Medical Justice’s report ‘detained and discarded' (2022) has highlighted just how detrimental this can be for people’s health.

“I was getting prepped for major surgery when I was detained for 6 months. The healthcare at the Immigration Removal Centre was appalling. They failed to manage my condition and in the end had no choice but to release me. Although my health had deteriorated rapidly and the surgery was more urgent than ever, I was discharged without so much as a referral or medication.”

Leaving detention, whether by removal or into the community, is disruptive to medical care, and can result in people being put at great risk. Frequently people leave without medical notes, prescribed medication or information on how to access medical help. This lack of information can happen even in situations when people are released as a consequence of their poor health. As Medical Justice’s “Detained and Discarded” report highlights:

“Shockingly, the Home Office revealed that only three people recorded as ‘Adult at risk’ had onward care plans arranged upon their release across three IRCs between January 2019 and June 2021.”

In England there are complex provisions which can limit provision for medical care for people who have had an asylum claim refused[1]. On release, the ‘hostile environment’ continues to punish people and deny them access to essential healthcare[2].

As is the case with wider hostile environment policies which have been criticised for starting from a culture of disbelief (see for example, Windrush Lessons Learned Review), people in detention are often subject to this same treatment and not believed by Home Office, custody officers, and healthcare staff. Instead, their distress is viewed as situational, goal-directed, or manipulative.

Visitor groups have echoed this concern. AVID has heard reports from visitor groups who have raised concerns with detention staff only to be told that the issue has been investigated and resolved, despite visitor groups being aware that the person in detention remains at risk. It is possible that this is due to people in detention not feeling able to confide in detention centre staff in the same way as they do to visitors. Either way, it points to a trend of safeguarding concerns not being taken seriously when considered against the priority of removal (as we will see further explored in this chapter in relation to how safeguarding mechanisms in detention function).

The culture of disbelief is also discussed in Ongoing Criticisms and Developments in reference to ICBI report and the Brook House Inquiry as well as in relation to Challenges and concerns about reporting under Rules 32/35.

As explained above, people in detention have high levels of trauma. Home Office safeguards apply in relation to the person’s history of trauma where this fulfils the definition of torture, human trafficking or modern slavery.

Victims of torture

The Home Office’s approach to the policy definition of victims of torture has been highly contested throughout its use of immigration detention powers. The present definition is wide and set out in a Statutory Instrument (The Detention Centre (Amendment) Rules 2018):

““torture” means any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in a situation in which—

(a)the perpetrator has control (whether mental or physical) over the victim, and

(b)as a result of that control, the victim is powerless to resist.”

Home Office’s for 2024 states that 2,427 reports were completed by clinicians setting out that a detained person had discussed a history of torture with them, so this is not an unusual issue within the detained population. The issue of the detention of torture survivors using immigration powers is a regular theme of concerns about safeguards since there is clear evidence that such individuals are at particular risk of harm as a result of incarceration:

“… a history of torture alone predisposes an individual to a greater risk of harm, including deterioration in mental health and increased risk of anxiety, depression and PTSD, than would be experienced in the general detained population.” ()

Human trafficking and victims of modern slavery

The essence of human trafficking and modern slavery is that there has been coercion or deception to ensure the exploitation of a human being.

The UN Palermo Protocol has the commonly accepted definition of human trafficking in international law. This states that human trafficking is:

• the recruitment, transportation, transfer, harbouring or receipt of persons

• by means of threat, force, coercion or deception (this element is not needed for children)

• to achieve control over another person

• for the purpose of exploitation

Exploitation includes:

• sexual exploitation

• forced and bonded labour

• domestic servitude

• any other form of slavery

Slavery is a term used for activities involved when one person obtains or holds another person in compelled service and includes being:

• forced to work by psychological or physical threat

• “owned” or controlled by an 'employer'

• dehumanised, treated as a commodity or bought and sold as ‘property'

Consideration of whether people may be victims of modern slavery or trafficking can apply to many situations and can include people who are UK citizens.

(January 2025) recognises that identifying potential victims is challenging since people with this history may not identify themselves in this way or be reluctant to tell others about their experiences. Survivors can be highly traumatised, and afraid of sharing their experiences of exploitation for a multitude of reasons, including shame, fear of stigmatisation, and threats from traffickers who may still be controlling them. Survivors are also often fearful of authorities. A further factor is that people may have been wrongly criminally convicted for offences they were forced to commit by their traffickers and so they are particularly mistrustful of legal processes.

Given the difficulty in identifying victims of modern slavery there is little clear information about how prevalent an issue this is. This lack of data is compounded by the fact that the Home Office does not publish the information it has on the people that are recognised as possible victims.

Analysis of official data collected under freedom of information processes included in by OpenDemocracy identified 368 potential victims held in prisons alone between March 2023 and June 2024. A similar process for obtaining access to Home Office data included in published in October 2022 found for the year 2021 across the whole immigration detention estate 1,611 people had been identified as potential victims.

on understanding human trafficking has been provided by the Helen Bamber Foundation. The charity’s view about the effect of detention on survivors is:

“Immigration detention is an unacceptable environment for survivors of trafficking, who are particularly vulnerable to harm in detention, a setting which can prevent or discourage disclosure. Even if identified, detainees are not always released and detention continues to have an accumulative and damaging impact upon their physical and mental health. A high proportion of immigration detainees are diagnosed with depression, post-traumatic stress disorder (PTSD) and anxiety, and a significant number experience suicidal ideation with the risk of self-harm. Research shows that people who have experienced trauma are at greater risk of developing mental health problems while in detention. It is impossible to envisage how a person’s recovery needs can be met when they are in continuous distress.

For survivors of trafficking, immigration detention not only increases the risk of re-traumatisation and negative long-term physical and mental health outcomes; it can also prevent victims from being identified and from receiving the support they need and to which they are entitled. This can in turn affect their willingness and ability to engage in legal processes, such as supporting criminal investigations and prosecutions of their traffickers. It can leave them at risk of being re-trafficked or exploited further. Immigration detention itself can be used as a threat by exploiters to prevent survivors from approaching authorities for support or assistance.”

The extreme stresses of detention can lead some people to self-harm, to experience suicidal thoughts or to end their lives. The charity INQUEST collates information on deaths in immigration custody. Their research identified 18 self-inflicted deaths that have occurred in IRCs from 2000-2024 and 13 for people held under immigration powers in prisons within the same timeframe.[1]

Some people enter detention with a prior history of self-harm or suicidal thinking, which is exacerbated by their incarceration and the threat of deportation or removal. Self-harming and suicide risk is very likely to be adversely impacted by the nature of the detained environment. This includes poor continuity of care and there appears to be little consideration given to the need for clinicians to develop a trusting therapeutic relationship with patients to facilitate the disclosure of psychological symptoms including self-harming and suicidal thoughts and intent. People can find suicidal thinking and self-harming behaviours difficult to talk about with anyone, but especially to medical professionals or detention centre staff who they mistrust[2].

[1] https://www.inquest.org.uk/deaths-of-immigration-detainees (information as at 9/1/25)

^[2] Medical Justice Harmed Not Heard

The refusal of food or fluids (often referred to as a “hunger strike”) can be used as a form of protest in detention settings. The first mass hunger strikes took place in 1994 and led to the release of ten people from detention.

In a system that renders people desperate and powerless, hunger strikers have remained prominent throughout the history of detention.

Amongst other incidents, in 2009 at least 30 people detained went on hunger strike to protest conditions and the detention of children. In 2019 almost half of the people detained in Campsfield IRC went on hunger strike to protest their prolonged detention and treatment. In a public statement they said that they were refusing food indefinitely “for our voices to be heard” [1]. Hunger strikes continue in detention and often spread from one centre to another, although they have become less common over time as Home Office procedures in relation to hunger strikes have tightened (read more about Home Office policy in Food and Fluid Refusal.

While hunger strikes usually occur from people who have limited or no other forms of protest available to them, they can also be a disciplined act of resistance. This can be a deeply personal and/or political decision to assert autonomy and draw attention to injustice. People who hunger strike are usually quite intentional and determined in their protest and have a large amount of both willpower and courage.

For people in immigration detention - amongst other reasons - refusing food or fluid might be an attempt to have their voice heard by the Home Office and other authorities. Or it may be used to demonstrate the extent of their fear of return to their country of origin.

Hunger strikes may go on for extended periods or may end relatively quickly.

What to expect if someone you are visiting goes o n hunger strike

Provided that the person continues to consume liquids with sugars and salt, people on hunger strike can survive for four to six weeks without food, depending on their age, build, and general health. During a hunger strike, the body’s priority is to supply sufficient nourishment to the brain. Various mechanisms will come into play to achieve this. In order to conserve energy, other body systems slow down. The consequences of this include:

• Loss of muscle tone

• Sluggish circulation

• Tiredness and feeling cold

• Abdominal pain

After some time, usually 4-5 weeks, the impacts can be more severe. This can include nerve damage, organ failure, blindness, loss of hearing and even death. Some of the damage caused by hunger strikes can also be irreversible, although it is hard to predict at what point this might occur. People who refuse all fluid as well as food may deteriorate very rapidly; and death is possible within 7 to 14 days.

There are also psychological impacts, which can include social withdrawal, irritability, impulsivity and changes in mood. People might have difficulty sleeping as well as concentrating, and this may also impact their ability to think clearly. These impacts will vary individually, but protective factors can include having strong political as well as religious and spiritual conviction. External support, whether this is from their peers, visitor groups or even the public, can also play a significant role.

Refeeding

Refeeding syndrome occurs when someone who has been malnourished begins to consume food again, even if this is just after a few days of food deprivation. As someone’s body attempts to readjust to feeding, it can cause serious complications if this is done too quicky.

When someone begins to consume food again, this should be done with the support of a doctor or specialist. Hospitalisation may be necessary for people at particular risk of refeeding syndrome, so they can have a controlled diet while their health is monitored.

Visitors have previously found that after a hunger strike finishes, psychiatric and medical support for someone in detention can end almost immediately. It is vital to continue providing support in this period after a hunger strike, due to the risks involved in refeeding and the potential lack of oversight. Read more about what visitors can do when.

[1]

Each year a number of unaccompanied children enter the UK, usually to seek asylum. These children may have been separated from their parents during a journey from their country of origin, or may have travelled to the UK on their own. Unaccompanied children can be subjected to immigration detention if the Home Office believes - on the basis of their appearance or demeanour - that they are ‘significantly over 18 years old’ and the child or young person cannot prove otherwise. The Home Office is allowed to treat them as an adult unless challenged, and if they are challenged these are what are referred to as ‘age dispute cases’.

Home office policy, which is discussed later in this chapter, for how age is assessed has come under extensive criticism. The Refugee and Migrants Children’s Consortium (RMCC) report Lost Childhoods: The consequences of flawed age assessments at the UK border’ discusses the devastating consequences of children being treated as adults. Showing how widespread these impacts are, their report revealed that - in the first half of 2024 - 63 local authorities in England and Scotland received 603 referrals from stakeholders who suspected young people were being wrongly placed in adult accommodation or detention due to inaccurate Home Office age assessments.

“There are no safeguards in place for children who say they are children but are still treated as adults by the Home Office, which is a rising area of concern… RMCC members regularly see children as young as 14 treated as adults by the Home Office and placed in immigration detention or alone in adult accommodation at significant risk.”[1]

No Such Thing As Justice Here – a report by Captain Support, Humans for Rights Network and Refugee Legal Support – talks about the impact of people being criminalised for seeking sanctuary in the UK via irregular routes under the Nationality and Borders Act (2022). Their report, published February 2024, revealed 15 age disputed children (identified by Humans for Rights Network) who were wrongly treated as adults and charged with these offences, with 14 spending time in adult prison.

[1]

In 2015, there were several high profile reported legal cases in decisions by UK courts which ruled that detention in the UK had amounted to inhuman and degrading treatment, i.e. very serious breaches of the European Convention on Human Rights. These arose from a series of instances where people with serious mental illnesses, some requiring hospital treatment under the Mental Health Act 1983, had suffered a deterioration in their mental state because of detention. This included symptoms such as suicidal feelings, self-harming and psychosis. Common themes in these cases were inadequate healthcare facilities in immigration removal centres, deficient medical assessments and a lack of consideration of the harmful effect of detention when decisions were taken by Home Office caseworkers about whether release of the person was required.

This led the Home Office to commission Stephen Shaw, a former Prisons and Probation Ombudsman for England and Wales, to carry out a review into the policies and procedures affecting the welfare of people in immigration detention.

Prior to Stephen Shaw’s contribution, the Detention Centre Rules 2001 were the primary basis for deciding whether a person should be detained. These comprise three categories of individual:

(i) People whose “health would be injuriously affected by their detention.”

(ii) People who were experiencing “suicidal intentions.”

(iii) People who “may have been the victim of torture.”

These and other categories of people deemed to be generally unsuitable for detention were set out in a now withdrawn policy document, the ‘Enforcement Instructions Guidance’ which explained how Home Office caseworkers needed to factor such information into detention decisions. The general approach of the wording of the guidance was that people who fell within the guidance should not be detained unless there were exceptional circumstances. This meant a general presumption against detention that could only be overridden by the person’s individual immigration situation such as imminent removal or concerns that they were a risk to the public.

Stephen Shaw’s review developed an entirely different approach to understanding the risk of detention to detained people. He sought to introduce a much wider notion of ‘vulnerability’ as a concept in detention and to recognise all detained people are vulnerable:

“I believe the notion of ‘vulnerability’ is best understood as a dynamic term… vulnerability is intrinsic to the very fact of detention and an individual’s degree of vulnerability is not constant but changes as circumstances change.”

When the review was originally commissioned, Stephen Shaw was offered a broad scope to considering the position of detained people, with the discretion to expand the issues he wanted to address. He was specifically asked by the Home Office to address the policies and systems designed to:

• identify vulnerability and appropriate action

• provide welfare support

• prevent self-harm and self‐inflicted death

• manage food and fluid refusal safely without rewarding non-compliance

Importantly however, the review was limited to analysis or recommendations about policies that applied to people in immigration detention, rather than the wider legal framework for the use of immigration detention powers in itself.

Steven Shaw made a number of formal recommendations in his report; for full details the 349 page report is available here: . The report is wide-ranging and made a number of key findings and 64 recommendations. From a policy perspective one of the most significant developments was an academic literature review completed by Professor Mary Bosworth, commissioned as part of the review. This identified a clear link between detention and adverse mental health outcomes for detained people and showed that the harmful impact of detention increased with longer periods of incarceration.

A further key policy development from the Shaw Review was a recommendation that the Home Office should expand its limited category-based approach of vulnerability and recognise that such categories are not exclusive; that people who do not fall within such a framework may still be vulnerable and this should be recognised in decisions about whether to detain/continue to detain someone. Other key recommendations included the inclusion of a gatekeeping function to review the situation of individuals before they are placed in detention and a replacement to the current arrangements for assessments completed by GPs in detention (a process known as Rule 35 [further explained in ). Stephen Shaw concluded that Rule 35 assessments need to change because they did not fulfil their purpose of protecting “vulnerable people who find themselves in detention – and that the fundamental problem is a lack of trust placed in GPs to provide independent advice”.

Ultimately, Stephen Shaw’s review led to the Home Office’s publication of AAR in May 2016. The original policy included the overarching aim (now withdrawn) that it’s application would “lead to a reduction in the number of vulnerable people detained, to a reduction in the length of time for which people are detained generally, to a quicker and more efficient use of the detention estate and, as a result, to an improvement in the welfare of those detained.” It was also clear that the original purpose of the policy was to strengthen the presumption that where an individual was regarded as being at risk, they should not be detained, whilst also setting out the factors that could weigh in favour of their detention. It set up a process of three levels of evidence of the risk of harm set against immigration factors to allow for a balancing exercise of this information to be undertaken by Home Office decision-makers to take detention decisions. [This three tier balancing process remains true to the original policy. The current version of the AAR policy is described in more detail above.]

Since AAR is the key safeguarding policy that governs decisions about detention and people at risk of harm from their incarceration it has been highly contentious; as well as subject to regular external reviews and amendments by the Home Office.

An Overview

Summary of the Home Office’s approach to people’s vulnerability in detention

The Home Office’s general policy on identifying vulnerability is to move away from a category-based approach. So technically any information that could be an issue of vulnerability will be considered. But the categories below are particularly relevant to visiting people in detention as they have particular policies that apply to them.

It is worth remembering that people can also be in a situation where more than one category that applies to them.

Ad hoc safeguarding policies that monitor vulnerable people in detention and so identify their vulnerabilities but do not specifically trigger a review of whether the person should be held in detention

Review of the implementation of AAR by Stephen Shaw in 2018

Stephen Shaw was commissioned by the Home Office to undertake a follow-up review, which was published on 24th July 2018 and is available here: . This was a process he informally referred to as ‘marking the Home Office’s homework’ but the stated purpose of the second review was to consider the extent to which the Home Office had adopted the recommendations included in his first report and to assess what impact this had in practice.

This second review included detailed evidence from NGOs working in detention or with detained people about the introduction of AAR which was summarised as “almost all of the interested parties making submissions to this review expressed concerns that the aims of AAR had not been realised in practice. Many argued that the previous policy … represented a stronger safeguard.”

AVID submitted evidence to Stephen Shaw which was quoted in the review. Our concerns were that the new policy had not achieved its aim of reducing the number of vulnerable people identified in detention or the length of their incarceration. In fact, the new approach placed a greater evidence burden on people detained to demonstrate their vulnerability as well as giving greater weight to immigration factors to provide justification of their detention:

The adults at risk policy (AAR) is the key safeguarding policy that applies in immigration detention. It is underpinned by s59 of the Immigration Act 2016 which requires the Home Office to issue guidance on whether a person is particularly vulnerable to harm if they are detained, or remain in detention, and so to determine if they should be released. The overall approach is that the Home Office decision-maker weighs evidence of vulnerability against the immigration factors in the case to decide if detention is appropriate.

AAR governs the way that the Home Office is required to consider evidence of detained people’s vulnerability, and to consider how much weight to give this in decisions about detention.

These are the key questions for the AAR policy:

1. Has the individual been identified as being at risk of harm in detention?

2. What is the level of evidence of the person’s vulnerability and so their category of risk?

3. How should the person’s vulnerability which would argue in favour of their release, be weighed against other factors that could justify their detention?

AAR is clear that the Home Office has to approach these questions based on the individual circumstances of a person’s situation at the time that the decision about detention is taken. There is not a limit to how many times AAR can be applied to an individual’s situation. It can be re-applied whenever a decision on detention is required, where there is evidence they are vulnerable to harm.

1. Does the individual fall within the AAR policy because they have been identified at risk of harm in detention?

The AAR Policy states that an individual is an “adult at risk” if:

• “they declare that they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention”

The policy provides a list of categories of “conditions or experiences” which indicate a person may be vulnerable to harm in detention and so could fall within the scope of AAR. These are:

• The person is “suffering from a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition)”.

• The person “has been a victim of torture” as defined by Rule 35(6) of the Detention Centre Rules 2001 (see ).

• The person has “been a victim of sexual or gender-based violence, including female genital mutilation”.

• The person has “been a victim of human trafficking or modern slavery”.

The policy stresses that this list is not exhaustive and that there may be other conditions and experiences that fall outside of this list which render people vulnerable to harm if they are in detention. It also emphasises that “the nature and severity of a condition, as well as the available evidence of a condition or traumatic event, can change over time.”

2. What is the level of evidence of the person’s vulnerability and so their category of risk?

Once a detained person is assessed as falling within the terms of AAR, the next question that informs the Home Office decision-maker is the level of evidence of their risk. There are three levels of evidence and broadly the policy is a balancing exercise: the greater the level of evidence of risk, the stronger the immigration factors that are needed in order to justify detention.

The evidence levels within the policy framework are:

• Level 1: a self-declaration of being an adult at risk should be afforded limited weight in most cases, including where the issues raised cannot be readily confirmed.” This does not mean that a detained person needs to know the AAR policy to explain that they fall within it, just that they need to raise to an aspect of their vulnerability or risk of harm. The wording of the policy also states that where professional evidence is not immediately available observations from Home Office officials that lead to a belief that a person is at higher risk then they can be allocated to a higher category of risk.

• Level 2: “professional evidence (e.g. from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is an adult at risk.”

• Level 3: “professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm. For example, evidence that a period of detention or continued detention will increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk.”

When considering “professional evidence”, the Home Office can decide to obtain their own report to determine the level of risk of detention in response to a report that has been obtained externally. Whilst they are obtaining such evidence the Home Office caseworker must still consider “the needs and circumstances of the person in detention in view of the evidence submitted.” i.e. the Home Office cannot simply wait to commission their own evidence about the risk of harm, a decision needs to be taken in the meantime about whether detention is appropriate.

A second complicating factor is that the Home Office caseworker is required to take into account any credibility issues that apply to the evidence submitted and this can reduce the category of risk. This provides caseworkers with a wide level of discretion as AAR states this includes “Determinations from courts or tribunals about the credibility of a person’s account or claims, or about professional evidence, or credibility concerns arising from other sources.”

3. How should the person’s vulnerability which would argue in favour of their release, be weighed against other factors that could justify their detention?

AAR specifies the following factors should be taken into account when making a decision about the detention of a person who has been identified as at risk:

Length of time in detention

AAR is explicit that time considerations is one of the most important factors in favour of detention. Where removal or deportation is “likely to be within a short timeframe, an individual considered vulnerable under this guidance is likely to be able to be detained for removal notwithstanding the other elements of this guidance.”

The policy also reminds decision-makers of the approach needed to ensure a lawful decision to detain[1]. More explanation of how the Home Office can lawfully exercise powers of detention is included in in .

Are there any public protection issues?

This is widely defined but includes people with a criminal history, those considered a security risk, and people subject to a court decision that they are to be deported for the public good.

Compliance issues

The Home Office decisionmaker makes an assessment of the individual’s risk of absconding, based on their previous compliance record.

This table illustrates the immigration factors which the evidence (depending on its level) are balanced against, to decide whether detention is justified:

[1] The summary of the legal position on the detention of people who are recognised as vulnerable according to AAR is set out in the policy as “where detention is for the purpose of removal or deportation, there must be a realistic prospect of removal within a reasonable period. Where detention is for any other statutory purpose, it must be for a period considered reasonable for that specific statutory purpose of detention. In accordance with section 12 of the Illegal Migration Act 2023, it is for the Secretary of State to determine what constitutes a “reasonable period” of detention and this period will vary according to the particular factors of a case (including whether or not the individual is considered vulnerable) and the specific statutory purpose of detention. When considering continuing detention, the period of detention to date should be factored in when determining whether a further period of detention is reasonable. In all cases, every effort should be made to ensure that the length of detention is as short as possible. Where detention is for the purpose of removal or deportation, it should be possible to estimate the likely duration of detention required to effect removal or deportation. Where removal or deportation is likely to be within a short timeframe, an individual considered vulnerable under this guidance is likely to be able to be detained for removal notwithstanding the other elements of this guidance.”

People who cannot understand information given to them and so to make decisions about themselves can find themselves caught up in the complexity of the immigration detention system. This lack of decision-making ability can apply to their medical and legal situation but also wider factors such as being able to understand day to day processes within detention centres including the practical steps needed to make appointments or understand how to connect with visitors.

It can be hard to identify people who lack decision-making capacity and so there is limited data on how often this issue arises in detention. AVID members have visited people where there have been concerns about the person’s decision-making capacity and who required a mental capacity assessment. This included visiting people with learning disabilities, mental illness and other capacity issues caused by stroke and dementia.

Healthcare screening and assessment runs throughout policy and process documents for immigration detention. This is because medical appointments gathering clinical information for detained people have a dual purpose. Firstly, to ensure people can access medical care whilst detained. But secondly as such information is central to Home Office’s decisions about the risk of harm caused by the detention environment and so considering if that person should be detained at all.

Since healthcare assessments and communication between clinicians and the Home Office is key to understanding safeguarding in detention it would be useful to read this section with the information on the Home Office’s Adults at Risk Policy (AAR).

Healthcare professionals in detention also have a role in monitoring people identified as at risk. This includes situations involving risk of self-harm or suicide, segregation and food or fluid refusal. The policies relating to these areas are set out in the individual sections of the handbook addressing these issues.

Overview of the key structure of assessment and monitoring

The most important processes to understand that apply to all people in immigration detention centres are set out below. Please note that they do not apply to people held in prisons under immigration powers.

Screening single medical appointments for people on arrival

• Rule 30 STHF Rules/ Rule 34 Detention Centre Rules 2001 sets out the process for offering a healthcare appointment by a clinician within 24 hours of arrival into each place of immigration detention.

• Rule 32 STHF Rules/ Rule 35 Detention Centre Rules 2001 sets out the process that requires medical safeguarding reports to be completed by a clinician and sent to the Home Office to trigger a review of the person’s detention.

People recognised as an adult at risk under AAR

As set out in the Detention Service Order (DSO) on Management of Adults at Risk (December 2024), all people identified as having vulnerabilities that “may impact on the safety and wellbeing” of that individual should have a vulnerable adult care plan (VACP) completed to document this and any “reasonable adjustments” made in response to their situation if they are held in an IRC.

This sets out the process for making a care plan and subsequent decisions such as the level of monitoring the person will be subject to and any closure of the plan. The policy includes requirements for healthcare staff to be involved in key aspects of the care planning process. It is worth noting that a copy of the care plan should be offered to the detained person. In addition, where a care plan is opened limited information about the person’s situation is shared with the Home Office via an internal form called IS91RA Part C. This is a process for information sharing with the Home Office but does not require any review of whether the individual should be detained.

Healthcare screening and assessments as an aspect of triggering a review of detention

Overview

Both IRCs and STHFs have a broadly similar approach whereby an initial medical appointment should be offered shortly after arrival at that detention site. This appointment should offer the possibility that the clinician will raise safeguarding concerns in a Rule 32/35 report which can trigger a review of detention by the Home Office. The basis under which healthcare staff should draft these reports is the same regardless of whether the detention site is an IRC or a STHF.

The main legal and policy framework for the role of healthcare in identifying safeguarding information is set out in the (DCR 2001) which apply to IRCs and the (STHF Rules 2018) that concern STHFs. These two documents are underpinned by dated March 2019 (the guidance) which gives further detail about how the two sets of Rules should be applied.

Rule 34 DCR 2001 (i.e. the process that applies to IRCs) states:

“Medical examination upon admission and thereafter

34.

(1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre.

(2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.

(3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.”

This means detained people at an IRC must be offered an appointment with a GP (this is the definition of a ‘registered medical practitioner’ as set out in Rule 33(1) of the DCR 2001) within 24 hours of their arrival to the detention centre. It also explains that if a detained person refuses this initial offer, they can change their mind at a later date and request an appointment. People in detention are also entitled to be examined by a GP of the same sex, under Rule 33(10) DCR 2001.

Rule 30 of the STHF Rules 2018 (i.e. the process for short-term holding facilities) states:

“Medical screening

30.

(1) Subject to paragraphs (2) and (4), a detained person must be screened by a healthcare professional within two hours of admission to a short-term holding facility.

(2) A detained person's consent must be obtained before screening.

(3) Subject to paragraph (4), a detained person is entitled, if they so request, to be screened only by a health care professional of the same sex and the manager must ensure that a detained person is aware of that entitlement prior to any screening.

(4) In the event that a healthcare professional of the same sex is not available within the two hour time period, the manager must ensure that the screening is conducted as soon as practicable.”

Identifying concerns at healthcare screening on arrival

There is guidance on the approach to reception and induction that applies to both IRCs and STHF. For safeguarding purposes, the guidance is clear that a detained person should be seen within two hours of arrival for an initial healthcare screening. The guidance requires the clinician completing this exercise to:

• identify any medical needs

• consider if reasonable adjustments[1] are needed

• note if mobility aids are required

• consider if a single occupancy room is medically indicated

[1] This is widely defined in the Vulnerable Adult Care Plan policy as identifying any “reasonable adjustments that can be made to mitigate any identified risks or vulnerabilities. Extra support provided to the individual can include assistance with mobility, assistance with medication or attending medical appointments, regular observations or any other adjustment that will help the individual overcome the impact that such vulnerabilities may have on his or her experience of detention.” The itself gives examples of conditions and disabilities such as reduced mobility, learning disabilities, speech or hearing impairment, dyslexia and severe disfigurement.

The current AAR guidance came into force on 21st May 2024. Regrettably, the present AAR policy represents a substantial change from the original since it has been significantly watered down in the following ways:

• The purpose and principles which underpin the policy no longer state the intention is a reduction in the number of vulnerable people detained and that, where detention is necessary, it will be for the shortest period possible. It instead places the policy within the context of tackling “illegal” migration and section 12 of the Illegal Migration Act (that detention is for the period the Secretary of State considers necessary for removal to take place) stating "there is no exemption from detention for any category of vulnerable person within this guidance".

• In making an assessment against immigration factors, it removes the presumption that, once an individual is regarded as being at risk, they should not be detained. The updated guidance simply states that immigration and risk factors should be balanced.

• It strengthens the weight of “credibility concerns” from courts, tribunals or other sources to state that this should (previously the wording was “may”) be taken into account to decide the evidence level. This takes away the ability to reconsider previous judgements due to, for example, new evidence being submitted.

• It removes, from the indicators of risks, that victims of torture "with a completed Medico Legal Report from reputable providers will be regarded as meeting level 3 evidence, provided the report meets the required standards". Instead, it introduces new options for the Home Office to obtain a second professional opinion from a Home Office contracted doctor where professional external evidence has been submitted.

• It states that people will “normally” (previously the wording was "will") be considered at a particular evidence level where they meet the relevant criteria making the policy more vague and more easily misused.

In a positive step it changes the use of “transexual” to the more inclusive term “transgender” in indicators of risk.

Overall, the result of these changes is likely to be that more people who are particularly vulnerable to harm in detention are detained and for longer periods.

A further reduction in the transparency of Home Office decision making and procedures continues due to the cancellation of the ICBI annual reviews of AAR. This represents a serious lack of understanding about how AAR is operating as there is no other external mechanism able to access Home Office data in this way.

Potential changes to AAR

AAR is presently the subject of a consultation by the Home Office published in March 2025. This is expected to be finalised by the end of the year. AVID along with our members and other partners have contributed to this consultation process.

Whilst AVID and visitor groups in the AVID network recognise the inherent flaws of these safeguards, they remain an important mechanism for visitors and people in detention to be aware of as the main safeguard in detention and, ultimately, a primary means of release. Visitors play a vital role in making people aware of these safeguards and making sure people in detention understand what to expect and what they can do, as is discussed in the next section of this chapter. It is important for visitors to be aware of these challenges when talking to people in detention about Rule 35/Rule 32 so that they can provide people in detention with an understanding of their rights, what they can expect and what to look out for. It is also important to note that the guidance that supports the Adults at Risk policy[1] recognises the role of visitors and that they may be able to identify vulnerabilities of the people they are visiting in IRCs. Where a visitor raises a concern about risk to a member of staff then this should lead to notification to the healthcare department and the detention engagement team at the IRC, i.e. the Home Office team responsible for face to face interactions with detained people.

It is also important that visitors support people in detention and work with their co-ordinator to hold the system to account.

Read more about What can visitors do.

[1] Paragraph 44 of the guidance dated 10 January 2025

Widespread failings within immigration detention to safeguard people are well documented, with fundamental flaws identified at each stage of the process. Safeguards are not considered by specialist organisations or official reviews to offer satisfactory protection to people in detention. Individual examples of failures in safeguarding decisions regularly form the basis of successful legal claims against the Home Office. These systemic shortcomings are also regularly mirrored in the experience of visitors groups and testimonies of people in detention.

Concerns about the Home Office’s key safeguarding policy: Adults at Risk (AAR) are set out in Ongoing Criticisms and Developments.

This section concerns the role of healthcare departments in identifying people who are particularly at risk within the detention environment and reporting their concerns to the Home Office, a process known as Rule 32 within STHFs, and Rule 35 for IRCs. The policy framework for this process of identification and reporting is set out in detail above. In essence the Home Office requires clinicians in detention sites to make written reports to the Home Office in three situations:

• Rule 32/35 (1) where a person’s health may be “injuriously affected by detention.”

• Rule 32/35 (2) where a person is suspected of having “suicidal intentions.”

• Rule 32/ 35 (3) where a person “may have been the victim of torture.”

The purpose of these reports is to trigger a review of the person’s detention by the Home Office following the AAR policy.

The Home Office publishes quarterly statistics on both the numbers of Rule 35 reports and whether they result in the individual’s release.[1] These show consistent data trends dating back to 2015 that reports made under Rule 35(1) and 35(2) are very infrequent compared to reports made under Rule 35(3). The numbers of people released following any type of Rule 35 report are very low. Official data is not published regarding Rule 32 in SHFTs, however monitoring reports tasked with considering this process[2] reflect the experience of visitor groups that such reports are very infrequently completed.

As a result, people who have been tortured, who are suicidal, or whose health is at risk, continue to be detained for reasons including:

• Clinicians do not complete Rule 35(1) and Rule 35(2) reports.

• The Rule 35 reports when they are completed are poor quality.

• The Home Office refuses to accept medical evidence when this is provided.

In addition to clinical flaws in the operation of Rule 32/35, a culture of disbelief of detained people in healthcare facilities has also been documented. The overriding theme of safeguarding failures in detention has been an entrenched reluctance by the Home Office to accept medical evidence of harm and to release detained people because immigration enforcement matters are considered to outweigh all other considerations.

Failure of clinicians to complete Rule 35 (1) and Rule 35(2) reports

The limited number of Rule 35(1) reports documenting the risk of harm of detention compared to reports under Rule 35(3) documenting a history of torture is difficult to reconcile with the research evidence and testimonies of detained people about the prevalence of symptoms of mental illness in torture survivors (and who should therefore have both a Rule 35 (3) report and Rule 35 (1) report) and the known adverse effect of detention on people with such conditions.

The European Committee for the Prevention of Torture (CPT) has raised concerns at the failure to complete Rule 35(1) reports where an individual disclosed a history of torture. Research within the sector also provides evidence that both Rule 35(1) and Rule 35(2) is not properly used by clinicians working in detention sites. This is further supported by Medical Justice’s analysis from their casework, evidencing a troubling lack of Rule 35(1) and Rule 35(2) reports. As highlighted above, their report , published in 2022, analysed evidence from 45 people in detention between July and December 2021 who had medico-legal reports (MLRs) completed by Medical Justice’s independent clinicians. Of this group, 82% experienced a deterioration in their mental health as a consequence of their continued detention and 87% expressed suicidal thoughts. However, none of these people had the equivalent Rule 35 reports. These concerns were repeated in the charity’s follow-up published in September 2023. Here a review of MLRs and medical records of 66 people in detention undertaken between 1 June 2022 and 27 March 2023 found 64 had experienced a deterioration in their mental state by the time of assessment and all were at risk of deterioration, yet only 5 individuals had a Rule 35(1) report completed.

Poor quality Rule 35 reports

A further concern is the fact that, even when Rule 35 reports are completed the assessments are inconsistently completed and do not address the relevant issues. The CPT concluded: “Too many Rule 35 applications are not properly filled out and many do not contain information on the impact of detention.” The last annual inspection completed by the Independent Chief Inspector of Borders and Immigration noted “a lack of consistency in the approach, content and conclusions of R35 reports across IRCs and between different doctors at the same IRC, leading to varying quality of reports…”[3]

A detailed clinical analysis of the Rule 35 mechanism commissioned by the Brook House Inquiry into its operation at Brook House IRC between 1st April 20217 to 31st August 2017 was completed by an independent GP, Dr Jake Hard. He found around 75% of Rule 35(3) reports he examined were inadequately completed. In particular, he noted that there was either no conclusion regarding the possibility of previous ill treatment being torture, or no conclusion on the impact of ongoing detention.

Culture of Disbelief

The nature of a culture of disbelief concerning the experiences of people in detention is difficult to directly evidence. However, this is an endemic theme referenced in academic research throughout the UK’s system of assessing asylum claims as well as explained in NGO evidence to reviews of immigration detention since 2016. This is also echoed by visitor groups and testimonies from people with lived experienced of detention.

Further detailed research addressing this endemic cultural issue for mental health staff working in IRCs is set out in Durcan G, Stubbs J, Boardman J. (2017) Immigration Removal Centres in England: A mental health needs analysis. This study sets out how a combination of lack of supervision of mental health practitioners was allied to development of such endemic disbelief “as a defence and coping mechanism to working in such a difficult environment with minimal support. Staff discussed how everyday they witness such distress and hear “these awful stories and there is nothing you can do to help.” They discussed how it resulted in people becoming “desensitised.”

The recognition of a culture of disbelief within immigration detention healthcare has permeated official reviews such as the report of Stephen Shaw (2016) which found such a culture within clinical staff dealing with healthcare issues of detained people. More recently the Brook House Public Inquiry report referenced a culture of disbelief as one of the key factors underpinning the Chair’s recommendation that a review of Rule 35 was required.

Home Office refusal to accept medical evidence

There are numerous examples of decisions by UK courts where the Home Office has not correctly assessed a detained person’s situation following receipt of a Rule 35 report and has refused to release that person as required by its policies. This has then led to a legal claim and payment of compensation. In addition to individual legal claims, systemic analyses of the Home Office’s approach from various reviews have raised concern that decisionmakers regularly refuse to accept medical evidence that demonstrates a detained person should be released. This emerged from the conclusions of the Shaw Review (2016), and the Home Affairs Select Committee (2019).

Recognition of the problem by investigative, regulatory and professional bodies

In summary there has been longstanding and widespread recognition that Rule 32/35 is ineffective in protecting detained people from harm. The need for change has been recognised in Parliament and by the key professional organisation, the British Medical Association, representing GPs who work in detention.

Independent thematic reviews of practice in immigration detention such as those undertaken by Stephen Shaw in both 2016 and 2018 clearly identified the need for reform. Detailed analysis undertaken by the Independent Chief Inspector of Borders in reports published in 2020, 2021 and 2023, have repeatedly identified systemic problems with this central safeguarding process. A recognition of the failure of the process and recommendation for reform was also set out in trenchant terms by the Brook House Public Inquiry. And, the European Committee for the Prevention of Torture (2024) confirmed the problem remains.

[1] These statistics are published by the Home Office in excel spreadsheet form

[2] Pg 5

People who are identified as being at risk of self-harm or suicide are monitored and managed in all centres in the first instance by custody officers rather than health care staff, through the Assessment care in detention and teamwork (ACDT) system. This is a process imported from the prison system, which allows any member of Home Office staff, supplier or healthcare staff who has identified concerns that a detained person is at risk of self-harm or suicide to start the ACDT process. The policy sets out potential situations of heightened risk (see page 7 of the ). ACDT is a highly document heavy process with many requirements for strict timing and recording of decisions about the person and sharing this information within the detention estate.

The ACDT process involves documentation of identified risks, triggers and protective factors for the individual, with regular multidisciplinary case review meetings to consider what actions can mitigate the overall risk to the person. In practice this generally means placing the person under regular observations and contact with staff. In some cases, this can involve periods of constant observation where the person is not permitted to be alone and is continually in the presence of staff. It can also result in moving the person within the detention site to places to manage the risk. This can include accommodation in Enhanced Care Unit within the healthcare environment or placing the person in segregation conditions and so separating them from the rest of the detained population. Other options include considering the availability of additional support, including contact with people from outside detention. Although visitors are not mentioned in the policy, the requirement to consider external sources of support may offer the opportunity for increased contact with the person being visited.

Whilst a person is under the ACDT process they should not generally be transferred to another detention site. If this happens then there is a procedure for information about the person to be shared with the receiving institution. Where a person is released from detention whilst still under the ACDT process then there is a limited obligation on the Home Office to signpost the person to sources of support in the community and to share information with other agencies such as social services or the NHS or other medical organisations.

There are parallel provisions in the Detention Centre Rules 2001 and the Short-term Holding Facility Rules 2018 which allow for individuals in detention to be separated from the rest of the detained population. This is known as segregation.

Segregation can arise:

1. Where “it appears necessary in the interests of safety and security” of the IRC/STHF, the detained person or the detained population (R35 STHF 2018 and Rule 40 DCR 2001).

2. Where a person is “refractory or violent” (R42 DCR 2001) or is “unmanageable or violent (Rule 37 STHF 2018) they can be placed in “special accommodation.”

Home Office guidance (January 2025) states these Rules “must be used as a measure of last resort, when all other options have been exhausted, and/or when these other options have been assessed as likely to fail or to be insufficient as an effective response to the risk to safety or security presented by the detained individual.” They must be used for the “minimum time necessary in all the circumstances”, with “an individual assessment of the circumstances on a case-by-case basis, as and when an incident occurs.”

The Rules also state explicitly that these provisions must not be used as a punishment. Each facility must have a published procedure for the use of these powers. The use of segregation must be justified by a risk assessment which explains why the decision to segregate has been taken and how often the assessment will be reviewed.

Segregation can lead to draconian conditions. There are minimum requirements that the accommodation is “adequate for health” with provisions for “size, lighting, heating, ventilation and fittings adequate for the maintenance of health and safety” and the detained person must be able to communicate at any time with an officer. Every person should have “access to toilet articles necessary for health and cleanliness and access to washing facilities”. But access to washing facilities will be “in line with individual’s risk assessment.” The Rules also allow for removal of furniture and bedding and for their replacement with “anti-ligature bedding” (i.e. removal of parts which might be used for self-harm or suicide) and collapsible mattresses. Home Office staff can also remove possessions from the detained person under these Rules and the supporting guidance.

There are time limits to the use of segregation. People separated from the general population under Rule 40 must have this considered by the Home Office within 24 hours and there is a maximum time period of segregation of 14 days. People placed in segregation under Rule 42 can be placed there for 24 hours with the Home Office needing to approve further time in such conditions up to a maximum of 3 days. The IMB, manager of religious affairs and GP (or member of nursing staff if it is a STHF) must be informed of the decision “without delay” and in practice this should be within 30 minutes.

There is a regime of documenting segregation decisions and reviewing them, the level of seniority of role of those making these choices and information sharing about the individual within the Home Office. Detained people must be given a written explanation of the decision to place them in segregation conditions. There is also provision for healthcare staff to attend review meetings about the person, to visit them daily and to decide “whether a physical health examination is required or whether a mental health assessment should be initiated.” Under Rule 40, if advised by a medical practitioner that it is necessary, the centre manager should remove the restriction (this option is not allowed for in the legislation on Rule 42).

Segregation powers are often used on the most highly vulnerable individuals and so the guidance links to other policies about people placed on ACDT suicide and self-harm policies, people who may lack decision-making capacity and adults at risk. The guidance states these powers should not “be used as a routine means to manage detained individuals with serious psychiatric illness or presenting with mental health problems. These rules should be used in relation to detained individuals with mental health problems “only where justified on the basis of the risk presented…”

The guidance is also clear that individuals at risk of suicide or self-harm must not be placed in segregation conditions unless this is “deemed necessary, having considered the potential adverse effect on the individual” and it is “for the shortest time necessary; and as a last resort where all other options for managing the behaviour have been considered and exhausted or considered to be inappropriate.”

The ACDT process - a process of documentation, supervision and risk management - is not a clinical response and does not involve therapeutic invention. It has been criticised by Medical Justice for being run by custodial staff, not healthcare professionals and so is therapeutically inadequate. The Brook House Inquiry also highlighted that it does not address the underlying causes that result in self-harm or suicidal thoughts.

Rather, the process of constant observation can be distressing especially when combined with a culture of Disbelief. This was the case for Marcin Gwoździński whose distress was not taken seriously and for whom ACDT monitoring was closed before he took his life in 2017. A letter written by friends of Marcin's in detention stated:

“For a long time he asked officers, psychologists and doctors for help. He was ignored. Many times he asked for help. Therefore myself and other detainees are very anxious and depressed about the situation. It is a disgrace that nobody has been [made] accountable for such poor care. We are human beings not animals.”

Despite the ACDT DSO stating that the use of segregation should be exceptional, there has been an overuse of segregation powers for people distressed and at risk of self-harm and suicide in detention. This was echoed in evidence heard during the Brook House Inquiry of people under ACDT being inappropriately placed in segregation conditions which in turn increased distress and the risk of suicidal thoughts.

Nonsensically, the process of information gathering and assessment of risk of suicide and self-harm for the individuals under ACDT is not required to engage with safeguarding mechanisms for reviewing detention such as Rule 35 process or the Adults at Risk policy. Therefore, people in detention might be placed on ACDT but not have a Rule 35 (2) report completed on their behalf.

Any clinician assessing a detained person has a duty under either Rule 35 DCR 2001 or Rule 32 of the STHF Rules 2018 to complete a report if any of the following apply:

(1) The detained person’s “health is likely to be injuriously affected by continued detention or any conditions of detention”

(2) The clinician “suspects [the detained person] of having suicidal intentions”

(3) The clinician is “… is concerned [the detained person] may have been the victim of torture”

There is a distinction as the DCR 2001 which apply in IRCs require that these safeguarding reports can only be completed by a GP. In STHF, the 2018 Rules that apply there, allow both nurses and GPs to complete them.

The safeguarding reports are commonly referred to by the number of the Rule (i.e. Rule 35) and the corresponding number of the individual circumstances (i.e. 1, 2 or 3 of the sub-headings above). For example, a ‘Rule 35(1) report’ is one completed by a GP at an IRC who considers that their patient’s health will be adversely affected by detention. Or a ‘Rule 32(3) report’ which would be completed by a nurse at a STHF concerned that their patient had disclosed a history of torture.

The guidance states that where a detained person falls within more than one category, the clinician must complete a separate report for each element of R35/32. Each time a report is completed a copy must be given to the detained person.

A key aspect to understand about the healthcare safeguarding reporting process is that the only standard time that a detained person will be considered for a Rule 35 or Rule 32 assessment is following their arrival in a place of detention, i.e. when they are offered screening when they are taken into detention or if they are transferred within the detention estate.

However, it is possible for the detained person to request a Rule 35/32 assessment at a later stage in their detention, although there is no time limit for any such appointment to be arranged. It is also possible for clinicians in STHF or IRCs to complete an assessment and safeguarding report of their own volition, but this is dependent on training for clinicians to recognise the need for this, rather than policy itself that timetables such an assessment.

Types of Rule 32/35 safeguarding reports

R35/32(1) report: a person’s health is likely to be injuriously affected by continued detention or the conditions of detention

Where a clinician considers that the person’s health is likely to be worsened by detention then they need to complete set out in the guidance. This requires an explanation of the following issues:

• “Why is the detainee’s physical and/or mental health likely to be injuriously affected by continued detention or the conditions of detention?”

• What treatment is the detainee receiving? Is specialist input being provided, either within the IRC/STHF or as a hospital outpatient or inpatient?

• In the case of mental health problems, has there been a detailed mental health assessment and, if so, carried out by whom and with what result/recommendation? If not, is an assessment scheduled to take place and, if so, when?

• What impact is detention or the conditions of detention having (or likely to have) on the detainee’s health and why?

R35/32 (2) report: the clinician suspects the detained person of having suicidal intentions

Again, there is that clinicians are required to complete. This addresses the following issues:

• Please state the reasons for suspecting that the detainee has suicidal intentions?

• Is the person detained being managed under Assessment Care in Detention Teamwork (ACDT) arrangements? If not, why not?

• Can the suicide risk be managed/reduced satisfactorily through ACDT, medication and/or appropriate interventions such as talking therapies?

• What arrangements might be needed to manage the detainee’s suicide risk in a non-detained setting?

R35/32 (3) report: the clinician is concerned the detained person may have been the victim of torture

The explanation of the concept of torture has been the subject of litigation, but the requires the clinician to focus on whether the person was in a situation of powerlessness.

The definition of torture included in the guidance is ““Any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in a situation in which

(a) the perpetrator has control (whether mental or physical) over the victim, and

(b) as a result of that control, the victim is powerless to resist.”

The template report requires the clinician to explain the detained person’s account of their torture including, if possible “when, where, how, over what timeframe and why the torture is said to have happened.” The form seeks to gather both the detained person’s account of their experience (as well as their explanation of any injuries, scarring or physical or psychological symptoms caused by this) and also a brief medical assessment. The report requires the clinician to provide details of their own observations and findings concerning their patient including:

• “details of all scarring or other physical marks, psychological symptoms, physical disability or impairment.

• details of any medical or professional treatment or support that the detainee has received (including outside the UK) or is receiving and from whom.

• any information in respect of previous or current physical or mental health problems which may be a result of having been tortured.”

The complexity of this assessment is underlined by the guidance that accompanies Rule 32(3) / Rule 35(3) reports which also requires the clinician to include an explanation of whether the “torture allegation” derives from “low or limited evidence” in support of the person’s account. The Adults at Risk Guidance (January 2025) gives more detail about how a clinician should approach assessing whether a person is a victim of torture.

Actions once a Rule 32/35 report has been completed

Any time a Rule 35/32 report is made the detained person must give consent to share this information with the Home Office.[1] If consent is not given then the report goes no further and there is no review of detention. A detained person must also be given a copy of the report.

If consent to share the report is given, it is sent by healthcare to the Home Office. The guidance sets out in some detail the internal process within the Home Office for circulating this information, documenting that this has happened and assessing whether the relevant information is contained in the report. The Home Office must review the person’s detention (by applying the AAR policy) by the end of the second working day after receipt of the report. This triggers a decision to either maintain detention or release the individual, with an accompanying obligation to provide a written response to the detained person, their legal representative (if they have one) and to the detention site’s healthcare. Further, under the guidance, clinicians have a responsibility to escalate their safeguarding concerns if they do not think their concerns have been properly addressed by the Home Office.

Independent medical reports

Detained people are entitled to be seen by their own doctor under Rule 33 (7) DCR 2001 or Rule 31(7) STHF 2018 subject to the discretion of the detention site’s manager. This means in practice that an independent clinician (usually organised by an NGO or a legal representative) should have access to see a detained person in order to complete a medical assessment and report. This is a core aspect of the work undertaken by Medical Justice who can organise of an independent medical assessment for people in detention. These medical assessments when written up are often known as medico-legal reports as they are drafted by the clinician to explain their findings with input from people with legal training.

The guidance states that where reports from “third parties about a detainee’s health or allegations that they are the victim of torture” are received, as a matter of best practice these documents should be sent to the detention site’s healthcare practitioner who should review whether or not to make a Rule 32 or 35 report. Independent medical reports should also be sent to the Home Office decision-maker who will review this evidence in light of AAR and so decide whether the person should be released, but the guidance is silent on the timeframe for this decision except to say they are not subject to the same strict timetable as when a Rule 32/35 report is provided.

Where an independent report states a detained person is feeling suicidal then this needs to be brought to the immediate attention of IRC/STHF healthcare and the Home Office.

The importance of Rule 34 screening in conjunction with Rule 35/32 assessment and reporting

Caselaw has established the importance of Rule 34 and Rule 35 in ensuring that detention is lawful in individual circumstances. The Courts have been clear that there is an obligation on detaining authorities to provide a mechanism to ensuring safeguarding happens.[2] This includes medical assessments which identify people who fall within the terms of Rule 35/32 and so trigger a review of detention. Where no such assessment was offered, or the Home Office decision-makers did not properly consider a medical report in accordance with policy, then the person may be unlawfully detained. If the person remains in detention at the time of the court’s decision, then the judge can order the release of the individual. People who have been unlawfully detained are also likely to be entitled to financial compensation.

[1] There is (May 2016) on sharing of information in these circumstances

[2] R (on the application of D and K) v. Secretary of State for the Home Department [2006] EWHC 980 (Admin)