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 A small team, we greatly appreciate you taking the time to let us know if you notice information that is out of date, have suggestions for improvements or are aware of any mistakes.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 enquiries@aviddetention.org.uk.

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 for a Zairian… and I (asked him) looking at things from the detainees' 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, AVID Founder

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 Refugee Action’s Explore Programme 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 healthcare in detention are coming soon!

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.

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 Brook House Inquiry report 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 www.aviddetention.org.uk.

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.

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, Taken from AVID's Hidden Stories

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.

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.

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

  • Access private spaces available to professional visitors such as lawyers, which may allow greater privacy and access to phone interpretation facilities

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.

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 https://www.gov.uk/prison-visits. 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: https://www.gov.uk/help-with-prison-visits.

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

Immigration detention in the prison estate 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.

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.

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 -.

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.

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.

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

• Whether or not you will act as a financial supporter for someone as part of their bail application

• Whether or not you will remain in touch with someone after they leave detention

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

• Make sure you can keep your word before you agree to doing something - if you are unsure about your group's policy, explain that you don’t know if you can help and you need to find out!

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

• Accept harassment, aggression or other inappropriate behaviour. People will often need to express anger and frustration, but aggression or abuse directed at volunteers should not be tolerated.

• Give items or money to the other person other than what is agreed in your group’s guidelines

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.

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

> Being too directive or quick to offer advice - this can exacerbate people’s sense of feeling out of control

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.

Given the size of visits halls and presence of guards it can be difficult to be sure your conversation is private, and it is important to recognise that this might impact what someone wants to discuss with you.

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.

*Coming soon: How visitors can support those with mental ill health*

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.

• Read Samaritans guidance on supporting someone with suicidal thoughts.

As a visitor you must also familiarise themselves with their 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.

• Read more about supporting someone to get legal advice and representation

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.

• Read more about supporting someone with bail and accommodation

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.

*Coming soon: Supporting people to access healthcare*

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

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. You can find a list of groups providing national-level support on the AVID website.

• 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.

• Your group may have a permission form for the person you are visiting to sign, and written information about what their group can offer

During the visit

• Focus on being present and listening with empathy. See more on empathetic listening skills.

• 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?

  • Do they have a lawyer? What action is the lawyer taking?

  • Have they spoken to anyone else about the concern?

  • Do they have any paperwork they would be happy to show you to help you understand the situation?

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.

You can find a list of useful organisations on the AVID website here.

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.

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.

1. https://www.unhcr.org/uk/media/alternatives-detention-united-kingdom

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 enquiries@aviddetention.org.uk.

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.

*Coming soon: Addressing trauma and burnout*

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 enquiries@aviddetention.org.uk if you are looking for support or have a specific question.

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.” – Sarah Turnbull

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 AVID's Members Charter, we are inclusive in our support to people in immigration detention and do not discriminate on any basis.

1. https://www.pewresearch.org/about/

2. https://www.refugee-action.org.uk/no-access-to-justice-how-legal-advice-deserts-fail-refugees-migrants-and-our-communities/

3. http://www.migrationobservatory.ox.ac.uk/resources/briefings/immigration-offences-trends-in-legislation-and-criminal-and-civil-enforcement/

4. https://www.theguardian.com/commentisfree/2022/may/30/britain-immigration-system-racist-laws

5. https://www.aviddetention.org.uk/article/how-can-we-be-heard-when-they-are-not-ready-to-hear-us

6. https://www.refugeetales.org/the-better-imagined

Detention must be authorised at the outset with written reasons for detention provided to the person being detained. This is in the form of a IS.91R form, served by the Home Office, which specifies the specific power under which they have been detained, the reasons for detention, and the basis on which the decision to detain was made. The five possible reasons given to people by the Home Office for their detention are:

• They are considered likely to abscond.

• There is insufficient reliable information to decide on whether to grant them temporary admission or release, or immigration bail under the post-Immigration Act 2016 provisions once enacted.

• Their removal from the UK is imminent.

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

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

The Home Office lists a number of factors which should be taken into account when deciding whether or not to detain someone (outlined in the ) 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

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.

Children

For many years the Home Office used immigration powers to detain as many as one thousand children each year, alongside their parents, including very young children and babies. The Immigration Act 2014 introduced restrictions on the detention of unaccompanied children (i.e. children who are alone) to short-term holding facilities and introduced a 24-hour time limit. In the Immigration Act 2014, the detention of unaccompanied children is subject to the following conditions:

“The first condition is that: (a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or (b) a decision on whether or not to give directions is likely to result in such directions. The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.”

Children detained with one or both parents can be held for a maximum of 72 hours but may, in exceptional circumstances and subject to Ministerial authority, be detained for up to a total of seven days. A Family Returns Model, overseen by an Independent Family Returns Panel, was introduced as part of these reforms (see also Family Returns Process).

These reforms significantly reduced the number of children entering detention from thousands to below 100. However, the introduction of the Illegal Migration Act 2023 has disregarded these safeguards on the detention of children. Much of The Illegal Migration Act is not yet in force. The Duty to Remove (not yet in force) sets out to remove anyone who arrived in the UK via an irregular route on or after the date which these provisions come into force. Anyone to whom this applies, including children, is subject to immigration detention without first-tribunal bail for the first 28 days. The duty to remove applies to unaccompanied children only in limited circumstances. And, unaccompanied children can be granted bail after 8 days in limited circumstances. The Act disapplies the duty to consult with the family returns panel. To reiterate, this is not yet in force although it is important for visitors and visitor groups to prepare for an increase in the number of children being detained if it does come into force. You can read more about the Illegal Migration Act in Immigration Detention in the UK: Essential Legislation, Policy and Guidance.

Unaccompanied children can also be subjected to immigration detention if the Home Office believes that they are ‘significantly over 18 years old’ and the child or young person cannot prove otherwise. You can read more about the legislation and age disputes process in this section of the handbook: Age disputes in detention.

Pregnant Women

In 2016, a seventy-two hour time limit on the detention of pregnant women was introduced by the Home Office, extendable to up to a week with ministerial authorisation. This resulted in the number of pregnant women falling from 99 in 2014, to just 7 in 2021. Organisations in the sector, led by Women for Refugee Women, successfully advocated for the time limit to remain in the Illegal Migration Act.

It is possible that women will enter detention not knowing that they are pregnant. Women should be offered a pregnancy test during their screening on arrival. However, this is not routinely taken. Visitors play an important role in making women aware of their rights and explaining how pregnancy will affect their detention.

At Risk Groups

After the Hardial Singh Principles, the Adults at Risk Policy (AAR) is the main restriction placed on the use of immigration detention [1]. The policy was introduced in 2016 following the publication of the Shaw Review into the Welfare in Detention of Vulnerable People (2016) and the recommendation to strengthen safeguards which prevent the impact of continued detention on a persons mental health. It sets out the mechanism by which someone is identified as vulnerable in detention in order to assess the impact of their ongoing detention. This can result in release from detention in certain circumstances although the policy has come under mounting criticism from people in detention, visitor groups and others working in the sector for failing at every stage, from failing to identify risk of harm to this harm being inadequately recognised by Home Office officials (High Concern Areas - Adults at Risk Policy and Rule 35/Rule 32.)

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 next chapter.

1. https://www.gov.uk/government/publications/adults-at-risk-in-immigration-detention

2. https://www.rainbowmigration.org.uk/publications/lgbtqi-peoples-experiences-of-immigration-detention-a-pilot-study/

3. https://cdn.prod.website-files.com/6584298d224fde1b6d717704/6618053192ad2941f76f73c9_final%20RETHINKING%20VULNERABILITY%20dec%202015%20version.pdf

Successive legislation in the UK has developed a specific and wide-ranging set of purposes for which immigration detention can be used. The use of detention is also subject to Home Office policy guidance, common law limitations on the power to detain, and to limits under the European Convention on Human Rights. The next chapter of this handbook – Immigration Detention in the UK: Essential Legislation, Policy and Guidance – will take you through the legal framework for detention in more depth.

Detention may be lawful at the outset, especially given that the grounds for detention are so wide ranging, but it may become unlawful over time. The time spent in detention - or a segment of the total period - may become unreasonable and possibly unlawful, because, for example, detention was maintained despite it becoming obvious - after some time in detention - that a person could not be removed. The conditions of detention can also give rise to judgments of unlawfulness and awards of compensation. Since 2011, there have been eight cases where the High Court has found the Home Office to be in breach of Article 3 of the ECHR (prohibition of torture) [1].

Home Office general policy is that “detention must be used sparingly, and for the shortest period necessary”.

You may hear this referred to as the ‘Hardial Singh principles’. These principles take their name from an early immigration detention case in which the applicant, Hardial Singh, attempted to take his life after four months in detention. The Hardial Singh principles were further endorsed by the Supreme Court in 2011 [2] as follows:

(i) The Home Office must intend to remove or deport the person and can only use the power to detain for that purpose;

(ii) The person may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Home Office will not be able to remove the person within a reasonable period, it should not seek to exercise the power to detain;

(iv) The Home Office should act with reasonable diligence and expedition to effect removal.

These principles are broadly analogous to Article 5 of the European Convention on Human Rights.

Of high concern, the Illegal Migration Act 2023 has replaced the Hardial Singh principles and the period for which people can be detained to (that which) “in the opinion of the Secretary of State, is reasonably necessary to enable the examination or removal to be carried out, the decision to be made, or the directions to be given”. This provision of the Illegal Migration Act (section 12) came into force on 28th September 2023 and it applies to all forms of detention (not just to people who come under the other provisions of the IMA). However, what is “reasonably necessary” will still be subject to scrutiny and legal challenges that rely on the Hardial Singh principles and Article 5.

Although there is no established timescale for what constitutes a reasonable period in all cases, the Bail Guidance for Immigration Judges (2023) applicable to Judges during immigration bail hearings recognises that three months is a substantial period of time and that imperative considerations of public safety may be needed to justify detention exceeding 6 months [2]. Again, if further provisions of the Illegal Migration Act 2023 come into force, the ability to challenge unlawful detention will be seriously compromised. For example, the Home Office intends to prevent people from being able to apply for bail or challenge their detention via judicial review until after 28 days of detention. People detained may still however be able to apply for a writ of “habeas corpus” although this is a remedy that is rarely used at present.

In order to challenge the lawfulness of detention, people detained will need a solicitor. Visitors can play a useful role in helping find a solicitor to deal with the fact of their ongoing extended detention, and group coordinators may refer people detained to public law specialists. See Legal Advice and Representation of this handbook.

1. https://medicaljustice.org.uk/heathcare-in-detention/inhuman-degrading-treatment/

2. https://www.refworld.org/jurisprudence/caselaw/gbrhcqb/1983/en/35851

3. https://www.judiciary.uk/wp-content/uploads/2023/06/Guidance-on-Immigration-Bail-for-Judges-of-the-First-tier-Tribunal-Immigration-and-Asylum-Chamber-Presidential.pdf

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), ‘How laws are made in the UK and how to influence the law-making process’.

1. https://www.theguardian.com/commentisfree/2023/mar/27/children-detention-uk-illegal-migration-bill-asylum

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 this blogpost.

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 Lawfulness of Detention.

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.

Section 31 of the Immigration and Asylum Act 1999 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

5. https://freemovement.org.uk/home-office-change-in-practice-increases-risk-of-homelessness-for-recognised-refugees/

6. See Right To Remains explanation of asylum fresh claims, ‘What is a fresh claim?’ at http://www.righttoremain.org.uk/legal/what-is-a-fresh-claim/

7. Detained Asylum Casework (DAC) – asylum process (Version 5) 2019. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/788720/detained-asylum-process-v5.0.pdf

8. “The Criminal Cases Review Commission (CCRC) has since 2012 referred over 30 separate cases to the relevant appeal court including eight to the Court of Appeal (Criminal Division)” .The Law Society, (2015), ‘Practice Note: Statutory defences available to asylum seekers charged with document offences’. Available at http://www.lawsociety.org.uk/support-services/advice/practice-notes/statutory-defences-available-to-asylum-seekers-charged-with-document-offences/

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 recent training session on the rise in inflammatory discourse and restrictive immigration policies against the Albanian community.

• Visit our Knowledge Hub 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 The Age Disputes project 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 Immigration detention in the prison estate .

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 (AVID Members Charter).

1. https://www.gov.uk/government/collections/immigration-statistics-quarterly-release

2. https://corporatewatch.org/2022-uk-charter-deportations-a-balance-sheet/

3. https://www.refugeewomen.co.uk/welcome-every-woman/detention/

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 Who Can Be Detained - Lawfulness of Detention of this handbook. For ease of reference, these principles are:

1. The Home Office must intend to remove or deport the person 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: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/257876/change-for-children.pdf

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 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)"

3. https://www.gov.uk/settled-status-eu-citizens-families/eligibility#:~:text=Reasonable%20grounds%20may%20include%2C%20if,or%20mental%20capacity%20to%20apply

4. Home Office ‘Conducive Deportation (Version 2.0) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1162517/Conducive_Deportation.pdf (published on 8 June 2023)[p.22]

5. The 3 Million: EU Settlement Scheme Statistics https://the3million.org.uk/node/1100851650#:~:text=joining%20family%20members.-,How%20many%20people%20are%20waiting%20for%20a%20decision%3F,this%20huge%20and%20persistent%20backlog.

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.

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.

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.

2. The stock must include toiletries, tobacco products, phone cards, snacks, drinks, writing materials and postage stamps.

3. In contracted out centres the contract monitor must approve prices charged.

4. The Centre must display clear details of the prices of goods for the information of detainees.

5. The Centre must advise detainees that they are able to suggest items for purchase.

6. Gross profits generated through shop sales must be made available for the benefit of detainees.

7. For the purpose of expenditure within the centre, a service must be provided to exchange foreign currency for pounds sterling at market rates and at no charge to detainees.

8. The Centre must operate systems and controls to ensure propriety and to facilitate audit processes.

9. Detainees must be able to purchase international phone cards for use in the centre.

The Communication Standard is that “Detainees must be allowed to maintain contact with family, friends and others without restrictions other than that necessary on grounds of security and safety (Rule 26)”. One of the Auditable Requirements for this standard is that “The Centre must maintain up-to-date lists of local befriending groups and contact details of the Association of Visitors to Immigration Detainees (AVID) and ensure that detainees are aware of their services.” However, the Communication standard makes no reference to internet access, and this absence of a requirement has likely contributed to the fact of inadequate access to the internet for people in detention in IRCs for many years.

Although the preface to the Operating Standards promises regular reviews this has not happened, and the Operating Standards are now very out of date.

1. Note however that in 2015 the Information Commissioner ruled in favour of a complainant who challenged the refusal by the Home Office to disclose self-audit reports prepared by the contractors running two IRCs. The Home Office withheld this information under the exemptions provided by sections 41(1) (information provided in confidence) and 43(2) (prejudice to commercial interests) of the FOIA. Available at https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1431905/fs_50557400.pdf

Relevant policies you might find useful are included in the section of this chapter. The important Adults at risk in immigration detention policy, first published in 2016, is kept here.

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

In 2015 – following several high profile cases which ruled that detention in the UK had amounted to inhuman and degrading treatment - the Home Office commissioned 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 (importantly, this did not include Home Office decisions to detain).

At that time, the potential harm caused by detention was recognised in the (now replaced) Enforcement Instructions and Guidance (EIG), Chapter 55 which stated, “those suffering serious mental illness which cannot be satisfactorily managed within detention are deemed unsuitable for detention” and corresponded to Rule 35 of the detention centre rules.

Steven Shaw made a number of recommendations in his report (and follow up report) on the urgent need for improved and alternative policies to safeguard and reduce the number of vulnerable people detained.

In response to the first Shaw Review, the Home Office introduced a new ‘Adults at risk’ policy in 2016. The policy replaced the vaguer policy in the EIG and was part of the Government’s commitment to ‘safeguard the most vulnerable’ with ‘a clear presumption that people who are at risk should not be detained’.

The policy states that someone 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." [3]

The policy lists additional factors that indicate someone may be particularly vulnerable to harm (this is a non-exhaustive list). These are:

• 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);

• having been a victim of torture;

• having been a victim of sexual or gender-based violence, including female genital mutilation;

• having been a victim of human trafficking or modern slavery;

• suffering from post-traumatic stress disorder (which may or may not be related to one of the above experiences);

• being pregnant (pregnant women will automatically be regarded as meeting level 3 evidence);

• suffering from a serious physical disability;

• suffering from other serious physical health conditions or illnesses;

• being aged 70 or over;

• being a transgender or intersex person.

The policy requires those making detention decisions to balance ‘immigration control factors’ (such as absconding risk) against any risk of harm to the individual from being detained. This balancing of vulnerability against immigration factors requires that vulnerable people show that they are being harmed by detention, by requiring them to produce evidence that there is a significant risk of harm. In its first year of operations, many NGOs reported that the adults at risk identified under the new policy were still facing long periods of detention.

The levels of evidence and the respective immigration factors that this is balanced against are as follows [4]:

The Adults at Risk policy is triggered when Home Office officials are alerted of evidence of harm through the Rule 35 (or Rule 32 in STHFs) process by which healthcare professionals in the detention should submit reports when the:

• Detained person’s health is likely to be injuriously affected by continued detention or any conditions of detention;

• When they suspect person has suicidal intentions;

• In the case of any detained person they are concerned may have been the victim of torture.

Updated Adults At Risk statutory guidance

AAR updated statutory guidance came into force on 21st May 2024. These changes were made under the previous Conservative Government and there is continued pressure on the Labour Government to reverse these changes [5].

This includes concerning developments, especially as it comes after further recommendations from the Brook House Inquiry on the need to improve the implementation of Rule 35. Instead of responding to the recommendations and countless reports on failures of the Adults at Risk Policy and Rule 35/Rule 32 it erases important commitments in the AAR and dilutes the guidance.

Key changes are that:

• The purpose and principles which underpin the guidance no longer state the intention is for there to be a reduction in the number of vulnerable people detained and that, where detention is necessary, it will be for the shortest period possible.

• Instead it 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 SSHD 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 at risk factors should be balanced.

• Strengthens the weight of “credibility concerns” from courts, tribunals or other sources to state that this should (previously “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";

• 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.

• States that people will “normally” (previously "will") be considered x evidence level where they meet the relevant criteria making the policy vaguer 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.

1. https://www.gov.uk/government/publications/review-into-the-welfare-in-detention-of-vulnerable-persons

2. https://www.gov.uk/government/publications/welfare-in-detention-of-vulnerable-persons-review-progress-report

3. https://www.gov.uk/government/publications/adults-at-risk-in-immigration-detention/adults-at-risk-in-immigration-detention-accessible-version#purpose-and-background

4. https://www.gov.uk/government/publications/adults-at-risk-in-immigration-detention/adults-at-risk-in-immigration-detention-accessible-version

5. https://hansard.parliament.uk/Lords/2024-10-14/debates/D2E2BEE6-63D0-4D2D-A492-8A23CCB4CD35/Immigration(GuidanceOnDetentionOfVulnerablePersons)Regulations2024?mc_cid=49b79b18a8&mc_eid=6716476b2f#:~:text=expand%20the%20detention%20estate%20to%20bolster%20our%20capacity%20to%20ensure%20that%20we%20have%20swift%2C%20firm%20and%20fair%20returns

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.

Rule 42 of the Detention Centre Rules allows for segregation in specific rooms, units, or cells in IRCs as follows (this is equivalent to Rule 35 in the Short-Term Holding Facility Rules):

Temporary confinement

42.—(1) The Secretary of State (in the case of a contracted-out detention centre) or the manager (in the case of a directly managed detention centre) may order a refractory or violent detained person to be confined temporarily in special accommodation, but a detained person shall not be so confined as a punishment, or after he has ceased to be refractory or violent...

People who are held in segregation should not be held for more than 24 hours without authorisation from the Secretary of State and must be given the reasons for their segregation in writing. Segregation should not continue beyond 3 days. The person held under Rule 42 should be visited by the centre manager, a medical practitioner and a Home Office representative at least once each day for as long as they remain in segregation. Written authorisation of their segregation must be copied to the local Independent Monitoring Board, the medical practitioner, and the manager of religious affairs at the centre.

Under Rule 40 of the Detention Centre Rules a person in detention can be held behind the door in their room or cell and not allowed to mix with other people in detention:

Removal from association 40.

—(1) Where it appears necessary in the interests of security or safety that a detained person should not associate with other detained persons, either generally or for particular purposes, the Secretary of State (in the case of a contracted-out detention centre) or the manager (in the case of a directly managed detention centre) may arrange for the detained person’s removal from association accordingly.

Those on Rule 40 can be confined to their room or cell for up to 14 days, although this must be authorised by the Home Office after 24 hours. 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).

Why is the use of segregation considered problematic?

The psychological and physical impact of segregation is widely recognised. Its use in detention has been subject to criticism from monitoring bodies, NGOs and international human rights directives.

Bail for Immigration Detainees (BID) and Medical Justice released a report in 2021 detailing the impact of solitary confinement and segregation on people detained in prisons during the Covid-19 pandemic. In the report, confinement was described as “psychological torture”, feeling “trapped”, “hopeless” and “suffocated”. Symptoms were incredibly severe, including involuntary shaking, memory loss, physical pain and insomnia [1]. This reflected similar findings from a prior Medical Justice on report (2015) on “the overuse and misuse of segregation...in IRCs across the UK” against people detained [2].

The Brook House Inquiry heard evidence on the misuse of rules 40 and rules 42 in Brook House IRC including its use on people who were severely mentally ill and being used as a punishment (even for minor issues such as stealing coffee) [3]. The Brook House Inquiry made a number of recommendations including for the Home Office to provide training to staff on rule 40 and rule 42 and regularly audit how it is being used. At present, the Home Office does not centrally collate data on the use of segregation across the detention estate, even on the number of times the Secretary of State is required to authorise the use of segregation.

AVID members are witness to concerning trends on the use of segregation including:

• Segregation cells or units being used inappropriately to manage people detained who are mentally unwell, especially if their behaviour is viewed as challenging and sometimes for very long periods. Often it is neglect of their mental illness on entering detention which has led to a deterioration in their mental health.

• People who have been subject to torture (which may have included the use of solitary confinement), or who are at risk of self-harm, may be managed by the use of segregation, despite the risk that exposure to segregation or removal from social contact with others may worsen.

• Segregation is not always correctly authorised and may be used for periods of weeks or even years in individual cases, certainly far in excess of the permitted 3 days.

• Segregation being used as a punishment or when someone refuses to share a room, despite this being expressly excluded in the legislation. There is no adjudication system in detention centres which would enable detainees to challenge the use of segregation.

• People held under Rule 40 or Rule 42 are not easily able to access legal advice via legal advice surgeries.

1. http://hubble-live-assets.s3.amazonaws.com/biduk/redactor2_assets/files/1328/Solitary_Confinement_Report_Final_2.pdf https://medicaljustice.org.uk/heathcare-in-detention/segregation/

2. https://medicaljustice.org.uk/heathcare-in-detention/segregation/; http://solitaryconfinement.org/uploads/SecretPunishmentMedicalJusticeReport2015.pdf

3. https://brookhouseinquiry.org.uk/main-page/volume-2-level-1/part-e-recommendations-to-prevent-recurrence-of-mistreatment/restrictions-on-detained-people/

This section highlights three areas of Home Office policy and guidance on the treatment of people detained which has given rise to major concerns over fairness, decency, and lawfulness. People impacted by detention, visitor group coordinators, campaigners, parliamentarians, and legal advisors will recognise these concerns.

These areas are the use of segregation, age assessments and the identification of people at risk of harm from detention (including victims of torture). These pieces of Home Office guidance are of concern usually for not one or two but for all of the following reasons:

• They fail people who are especially vulnerable, such as children, people who have been tortured, and severely mentally ill people with consequences that are destructive and long-lasting, in addition to their loss of liberty.

• They are set out in broad terms only and they typically lack sufficient detail to enable Home Office or contractor staff to make good operational decisions.

• They are flouted by Home Office or contractor staff.

• They may result in a person being kept in detention without proper reason, or even unlawfully.

• They repeatedly feature in successful or settled unlawful detention litigation against the Home Office, yet the Home Office resists revising the relevant instruction.

• They enable Home Office operational convenience to be achieved at an unacceptable and unjust human cost to the detained person.

As an organisation in solidarity with people detained for many years, AVID continues to collect evidence of the effect of these high-concern policies from member organisations, and bring this to the attention of the Home Office, along with other prominent detention organisations.

In 2010 the coalition government undertook to end the detention of children in the UK. Child detention has not ended, but – following the introduction of reforms in the Immigration Act 2014 - minor children accompanied by one or both parents are now detained only for periods up to seven days. However, if certain provisions of the Illegal Migration Act 2023 come into force, the Home Office will theoretically have the power to detain children who are deemed to have entered the UK unlawfully (unaccompanied or otherwise) indefinitely (see also #children).

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’.

The Nationality and Borders Act 2022 (‘NABA 2022’) provided the Home Office with much greater power and oversight over age assessments than before. Prior to NABA 2022, local authorities completed ‘Merton compliant’ age assessments. Merton Compliance takes it name from an immigration case [1] in which the High Court stated that local authority “cannot simply adopt a decision made by the Home Office” and outlined a number of criteria for a lawful assessment. To be “Merton compliant”, an assessment should be holistic and not made based solely on appearance but take into account (amongst other factors) the child's history in their home country, education and cultural information.

NABA 2022 enabled the new “National Age Assessment Board”, which consists of social workers employed by the Home Office, to complete age assessments if the local authority chooses to transfer the age assessment to the Home Office or if the Home Office notifies the local authority in writing that it doubts a person’s age as a child. The National Age Assessment Board can also carry out age assessments directly for those not cared for by the local authority or at any point before the local authority has referred the case or provided its own age assessment to the Home Office.

Local authorities do not have to refer cases to the National Age Assessment Board but can choose to do so. They can also carry out the age assessment themselves or confirm to the Home Office that they are satisfied that the individual’s age is as claimed. Under NABA 2022, the Home Office can override the local authority’s age assessment and conduct its own. Furthermore, if the local authority decides not to carry out an age assessment or decides to conduct its own, it must provide required evidence for the Home Office to consider the decision. The National Age Assessment Board’s decision only binds the Home Office (including immigration officers) and not the local authority who can continue to treat the individual as a child. If this happens, young people deemed to be children by the local authority could be detained by the Home Office. Such a scenario would be massively concerning and arguably unlawful for other reasons.

Home Office guidance on age assessments requires all those who do not look significantly older than 18 and who say they are children to be treated as a child in the first instance - meaning that they must not be detained - until a careful assessment of their age has been completed. The Home Office may detain a young person who says they are a child if there is credible documentary evidence that the young person is over 18 years old and therefore an adult, or if at any point the young person has been determined to be an adult via a ‘Merton compliant’ age assessment. The Home Office may also detain an individual if two Home Office members of staff of a particular grade or over have independently concluded that their physical appearance and demeanour very strongly suggests they are significantly older than 18 and there is little or no supporting evidence for their claimed age. Home Office guidance therefore gives immigration officers significant leeway in determining the age of a child or young person, in what must be viewed as an entirely subjective decision. [2]

In the case of in R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38, the Supreme Court ruled that the Home Office’s initial age assessment policy of treating individuals as adults where their physical appearance and demeanour very strongly indicated that they were significantly over 18 years of age was lawful.

In a briefing note on the plans to remove people to Rwanda and age disputes, The Refugee and Migrants Consortium explain the repercussions and far-reaching implications for children impacted:

“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.”

Determining age on the basis of appearance is subjective, and quasi-medical assessments have a wide margin of error and have been discredited. Despite this, NABA 2022 allows the Home Office to make regulations for “scientific” age assessment methods and for a decision-maker to make adverse credibility findings against those who refuse to undergo these methods “without good reason.” Further, section 58 of the Illegal Migration Act 2023 allows for an automatic assumption of adulthood if the person refuses to consent to a scientific method to determine their age. This will likely mean many children will wrongly be automatically declared as adults.

These failings are exacerbated due to the fact that separated children arriving in the UK may come from countries where precise age is not considered important, or lack any documentation, or have forged documentation to assist with their journey. Notwithstanding the impact of trauma and language barriers.

The consequences of being treated as an adult and held in immigration detention are unimaginable and unjustifiable. Children suffer the physical and emotional consequences of being detained as well as being unable to access education and support from local authority social services.

The Refugee Council Age Dispute Project works with separated children whose age is not accepted by the Home Office to help them get out of detention and receive legal advice and support [4].

1. R (B) v Merton [2003] EWHC 1689 (Admin)

2. Home Office, (2023), Assessing Age. v6.0. Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1140168/Assessing_age_March_2023.pdf

3. Refugee Council and Migrant’s Children Consortium, Briefing Note on Rwanda and Age Disputes. p.4. Available at https://www.refugeecouncil.org.uk/information/resources/rmcc-briefing-rwanda-age-disputes-june-2022. See also Judith Dennis, (2012), Not a minor offence: unaccompanied children locked up as part of the asylum system. Available at http://www.refugeecouncil.org.uk/assets/0002/5945/Not_a_minor_offence_2012.pdf

4. https://www.refugeecouncil.org.uk/get-support/services/age-disputes-project/

Detention Centre Rule 35 and Short-Term Holding Facility Rule 32 ‘Special illnesses and conditions (including torture claims), set out a mechanism designed to ensure that the Home Office ‘responsible officer’ making detention decisions is aware if, at any point, a detained persons health is considered likely to be adversely affected by continued detention or any condition of detention. The healthcare teams in RSTHFs and IRCs are required to report concerns to the centre manager who should, in turn, report these to the Home Office. The duty is then with the Home Office to review the detention of the individual in line with the Adults at Risk Policy (AAR).

Every aspect of the operation of Rule 35 and the AAR, from the identification of vulnerabilities - to the quality of reports - to vulnerabilities being appropriately responded to, have been subject to criticism since its introduction.

In one report by Medical Justice – Harmed Not Heard (2022) – they identified 45 people at risk of harm. Of those, Medical Justice found that 82% had 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 [1].

There have been ongoing failures of the process to identify people detained who have been subject to torture and - crucially - once identified for them to be released by the Home Office. In a report by Women for Refugee Women We Are Still Here (2017), they found that [2]:

• “Survivors of sexual and gender-based violence are being detained before any attempt has been made to find out about their previous experiences and assess if they are vulnerable.

• They aren’t believed when they disclose their experiences, and it is difficult for them to obtain evidence the Home Office will accept.

• Even when they obtain evidence the Home Office accepts, survivors are being kept in detention.

• Even when their mental and physical health are clearly deteriorating, survivors are being kept in detention.”

There is little – if any - written evidence on the implementation of Rule 32 in Short-Term Holding Facilities. Anecdotally, visitor groups to RSTHFs report that they rarely, if ever, see it being used within these facilities.

The Brook House Inquiry into the revelations of abuse, mistreatment and systemic racism in Brook House in 2017, found serious failings in the application of Rule 34 and Rule 35. Where Rule 35 reports were completed, the quality was found to be generally poor. Dr James Hard, the Inquiry’s medical expert, considered that 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. The Brook House Inquiry also made a recommendation that for a review of Rule 35 to be undertaken so that all three parts are followed, operate effectively and are properly resourced;

The Home Office has been highly reluctant to improve any aspect of this process, despite criticism from inspectorates, parliamentarians, research, litigation, and evidence over many years. Tellingly, in 2023, the Home Secretary terminated its contract with the Independent Chief Inspector of Borders and Immigration (ICIBI) to monitor the Adults at Risk Policy. In the third and final report report the ICBI Chief Inspector states:

"My concern then was that the pace of change was too slow and the enthusiasm to protect vulnerable people in immigration detention was held back by a narrative that placed abuse of the system ahead of protecting the vulnerable. It is disappointing to see that little has changed." (David Neal, 2023 ICIBI report)

Further, the report highlights contextual issues which exacerbated longstanding problems including the flight to Rwanda in 2022 which led to excessive pressure on Rule 35 reports [3].

1. https://medicaljustice.org.uk/research/harmed-not-heard/

2. https://www.refugeewomen.co.uk/campaign/research/

3. https://www.gov.uk/government/news/inspection-report-published-third-annual-inspection-of-adults-at-risk-in-immigration-detention-june-september-2022

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

• Finding a legal advisor for a person detained under immigration powers in the prison estate

• Bail for people detained in the prison estate

• Assisted Voluntary Returns Schemes

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.

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:

• Removal would breach the UK’s obligations under Human Rights Act of 1997[1], the Refugee Convention[2], or the Trafficking Convention[3]; or

• The person detained was under the age of 18 at the time of conviction; or

• is facing extradition; or

• is e.g. subject to a hospital or guardianship order under mental health legislation (Mental Health Act 1983 in England and Wales); or

• is an EEA national and the offence took place before 31.12.2020

The most commonly relied on exception is that deportation would be a breach of the right to family and private life under Article 8 European Convention on Human Rights (ECHR).

Other important legislation includes:

1. Human Rights Act of 1997

2. The Refugee Convention

3. Trafficking Convention

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:

“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country”[1]

The UNHCR explains that:

“The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.”[2]

The asylum process is determined by future risk. This means that no matter how badly an asylum applicant has been treated in their country of origin before they arrived in the UK, if there is a way for them to return and live in safety somewhere in their country of origin, then they may be refused refugee status. This applies even if they have to relocate within that country. However, the fact that they have been persecuted previously is usually considered a good indication that they would be persecuted in the future unless there are good reasons to the contrary.

In the UK, a person is recognised and referred to as a refugee only when their application for protection (their asylum claim) has been accepted by the Home Office or Court. An asylum seeker is the term for someone who has made an asylum claim but has not yet received a final decision in their case.

European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR)

The 1950 European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe. It contains a number of Articles setting out protected rights, such as Article 5 (the right to liberty and security) or Article 6 (the right to a fair trial).

The UK, as a member of the Council of Europe, is a party to the ECHR. It gave effect to the rights and freedoms in the ECHR through the Human Rights Act (HRA) 1998, which means that these protected rights can be invoked in our domestic courts. As a signatory to the ECHR, the UK has also agreed to take into account ECtHR judgments. ECtHR decisions cannot directly change UK law, but the UK government may be required to ask parliament to change the law in order to comply [3].

Key ECHR Articles from an asylum, immigration and detention perspective are:

● Article 3 Prohibition of torture - “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”

● Article 5 Right to liberty - "You have a right to your personal freedom. This means no one shall be detained or imprisoned without good reason."

● Article 8 Right to respect for family and private life - "Everyone has the right to respect for his private and family life, his home and his correspondence."

It is possible for a person to apply to remain in the UK if removing them to their country of origin would be in breach of their rights under the European Convention on Human Rights. This is known as a ‘human rights claim’. A human rights claim can be part of an asylum claim under the 1951 Refugee Convention, or a standalone claim. Most human rights claims in the UK invoke Article 3 (the prohibition of torture) or Article 8 (the right to respect for private and family life).

The Convention also established the European Court of Human Rights (ECtHR). A person who considers that a state party has failed to protect his or her rights under the Convention can make an application to the Court. There is now a body of case law by the European Court of Human Rights relating in particular to Articles 3, 5, 8 and 13 of the ECHR. Getting a case considered by the ECtHR generally requires that the claimant has exhausted all domestic remedies (all relevant courts and complaint procedures in the UK) and has suffered ‘significant disadvantage’. It is a complex process that may take years to conclude [4]. Some people detained bring cases to the ECtHR as litigants in person, and the process is designed to be accessible to people without the resources of a state, but a positive outcome is more likely with a legal team.

Retained EU Law

The UK left the European Union on 31 January 2020 following the outcome of the 2016 EU referendum. The transition period, during which EU law continued to apply, ended at 11pm on 31 December 2020 (the ‘specified date’). The rules governing the new relationship between the EU and UK took effect on 1 January 2021. Whilst several parts of EU law have been repealed following the specified date, others have been “retained” through primary UK legislation.

The EU (Withdrawal Act) 2018 retained the Asylum Seekers (Reception Conditions) Regulations 2005, the Refugee or person in Need of International Protection (Qualification) Regulations 2006 and the Asylum (Procedures) Regulations 2007. The Nationality and Borders Act 2022 (s.30(4)) then repealed the Refugee or person in Need of International Protection (Qualification) Regulations 2006 but incorporated their substance into s.31-36 (these sections set out the key considerations when determining whether an applicant ought to qualify for asylum).

EU-law derived rights, obligations, restrictions, remedies and procedures can now only be relied upon if they are not inconsistent with or, otherwise capable of affecting the interpretation of, application or operation of the Immigration Acts (including the Immigration Rules).[5] The Directives may also only be relied on where certain rights were recognised by the European Court or any UK court or tribunal in the UK before the specified date.[2] The UK Court of Appeal and Supreme Court can now also depart from the case law of the Court of Justice of the European Union when interpreting retained EU Law.

The EU Charter of Fundamental Rights is also no longer part of UK law but fundamental rights and principles recognised in case law do form part of retained EU law.[6] The Dublin III Regulation (which allowed the transfer of people seeking asylum to the EU country responsible for considering and determining their asylum claim) has been repealed in its entirety. However, the government is attempting to transfer asylum seekers out of the UK for their asylum claims to be processed in line with the Nationality and Borders Act 2022 and The Illegal Migration Act 2023. At present, the plan to send asylum seekers to Rwanda has been deemed unlawful by the Supreme Court. The government is trying to push through the Rwanda Bill in order to legislate that Rwanda is a safe country. Other third countries could also be considered under these provisions, if the UK government is able to make an agreement with those countries.

1. UNHCR, Convention and Protocol Relating to the Status of Refugees. Text of the 1951 Convention Relating to the Status of Refugees, Text of the 1967 Protocol Relating to the Status of Refugees Resolution 2198 (XXI) adopted by the United Nations General Assembly with an Introductory Note by the Office of the United Nations High Commissioner for Refugees. See Article 1 “Definition of the term “refugee”. Available at http://www.unhcr.org/uk/3b66c2aa10

2. UNHCR website, The 1951 Refugee Convention. Available at http://www.unhcr.org/uk/1951-refugee-convention.html

3. The Council of Europe oversees how the UK government gives effect to the rulings of the ECtHR. NB: The Council of Europe (47 members) is entirely separate from the European Union (28 members in 2016). https://fullfact.org/europe/eu-and-human-rights/

4. See ‘Protecting migrants under the European Convention on Human Rights and the European Social Charter: A handbook for legal practitioners’, (2013) Council of Europe. http://www.coe.int/t/democracy/migration/Source/migration/ProtectingMigrantsECHR_ESCWeb.pdf

5. Sch 1, para 6, Immigration and Social Security Coordination (EU Withdrawal) Act 2020

6. (s.4(2)(b), EU (Withdrawal Act) 2018)

7. s5(4) EU (Withdrawal Act) 2018)

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 (www.justiceinspectorates.gov.uk)

2. https://assets.publishing.service.gov.uk/media/6509c3af22a783000d43e8cf/Detention+General+instructions.pdf

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.

• Immigration teams are often not embedded in prisons holding people under immigration powers (they are in FNO Hub prisons Huntercombe, Maidstone, Morton Hall). For officers working in the prison, it is often the case that responsibility for “Foreign National Offenders” is added onto another job role and allocated to someone who may be largely unaware of or uninvolved in the mechanisms of detention or release.

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.

• In a 2022 report from BID “Catch 22 – Accessing Legal Advice in Prisons”, they found that 70% of people surveyed did not have a legal representative. These are some quotes from their report:

“In prison, I cannot copy my original document or receive invitation calls from a solicitor who might have the capacity to take my case. This reduced my chances of getting representation. In this prison I cannot get my phone numbers from reception. I'm locked away from the outside world, cannot contact friends and family to get help or representation. How do I contact my friends for help?”

“I call to lots of solicitors (more than 30). No one accept legal aid. Even prison foreign national officers not bother other than deportation. Hard to get legal advice. Great thanks to BID and whole team always great on calls, letters response.”

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.

• Those held in prison under immigration powers should have the same privileges and rights as remand prisoners (individuals who are detained in custody while awaiting trial or sentencing). This grants them greater access to telephone calls, visits and other entitlements. However, this is not always communicated to people and they are still subject to greater restrictions than IRCs. All of this worsens isolation.

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

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 High-concern areas of Home Office policy and guidance.

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.

AVID member groups sometimes get involved in providing evidence for such legal challenges. You can speak to your group coordinator or to AVID directly for more information.

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 https://ukhumanrightsblog.com/2011/03/23/secret-foreign-nationals-detention-policy-was-serious-abuse-of-power/

2. Stephen Shaw, (2016), Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office by Stephen Shaw. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/490782/52532_Shaw_Review_Accessible.pdf

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 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/325686/2014_04_14_DSO_Working_With_IMBs.pdf

One of the greatest injustices of immigration detention in the UK is that a significant proportion of people held are not able to access good quality legal advice and representation throughout their entire time in detention. People detained under immigration power are in an intrinsically vulnerable position and so require legal advice to address both their substantive immigration case and 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 continuous cuts to legal aid in the UK and due to changes made to the contracts with law firms who provide the 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.

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.

• SOAS 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.

• Kent Refugee Help supports refugees and migrants held in London and Kent prisons. They help people access legal advice and representation to fight their case and stand with them throughout.

• Clinks are a national network of organisations working with people and their families in prisons. Whilst they do not offer specific support to people held under immigration powers, you can use their directory to find which organisations visit in prisons.

• Captain Support UK is a grassroots organisation which works in solidarity with all people criminalised for crossing borders or facilitating freedom of movement. The collective provides practical solidarity to people in prison and post-release as well as campaigning for systemic change against the criminalisation of immigration in the UK.

• The Prison Reform Trust has a Prisoners Families Helpline who can give advice to families and advice on booking visits.

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 which has resulted in them being unable 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.

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. 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. This is known as the “means test”.

The second test is the “merits test” and broadly means that that if the work is carried out, it is more likely than not 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].

Further Reading

A Refugee Action report in 2022 by Dr Jo Wilding mapped the reality of legal advice provision for immigration advice at a national level. In every part of England and Wales, there was found to be a deficit between the need for immigration and asylum legal advice and the provision available. In NI, despite the broader scope of legal aid, very few firms were found to actually take immigration cases. Scotland has a larger population of legal aid providers, but they are mainly based in Glasgow. You can read and access the full report here:

1. https://commonslibrary.parliament.uk/research-briefings/cbp-7603/

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 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 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 should 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 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 submits regular Freedom of Information (FOI) requests to access 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.

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

AVID receives many calls from visitors and people in detention concerned about whether a solicitor or other legal advisor is acting in the person in detention's best interests. Second only to the frustration that people in detention - and by extension their visitors - feel about getting someone to provide immigration legal advice, is concern about the quality of immigration legal advice which can vary hugely.

Many lawyers and paralegals work incredibly hard and may do unfunded elements of their work pro-bono 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 What is legal aid and what does it cover?. 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 fundamentally and irrevocably break the 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.

• Access to the legal advisor: legal advisors should be directly available or respond to clients within a reasonable timeframe and be able to provide early appointment dates.

• One-to-one relationship with the representative: empathy, mutual respect, and a sensitive approach to dealing with difficult emotions and situations, if practiced, all contribute to a relationship of trust.

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;

• Be willing to take action if a client is unfairly treated during a Home Office interview;

• Be reasonably well informed about the political situation in the client’s home country, or become so, and carry out relevant research as required;

• Make representations to the Home Office about the substantive case, and/or release from detention;

• Advise on immigration bail, and make bail applications regularly if there is at least a borderline prospect of success;

• Consider a legal challenge or a referral at any point at which detention become prolonged and/or potentially unlawful;

• Explain the medical rights of a person detained under immigration powers, paying attention to their psychological and physical wellbeing and knowing who to refer their client to if help is needed. Legal advisors are not responsible for their clients wellbeing, so there are limits to this, but a good advisor should seek immediate release of someone who should not ordinarily be detained, and will make reasonable enquiries from time to time to see whether this is an issue;

• Be aware of support groups and networks, and be willing to refer to them, making clear what can and cannot be expected of lay supporters;

• If an application is refused and appeals fail, the advisor should discus all options open to the client as to further representation, rights of appeal, voluntary departure, alternative destinations, travel documents and so on.

1.https://assets.publishing.service.gov.uk/media/64888b5fb32b9e0012a96716/Peer_Review_Quality_Guide_for_Immigration__Asylum_.pdf

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 Detention Duty Advice Scheme 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.

Further reading and resources:

• Right to Remains Toolkit is available in multiple languages and includes a section on Lawyers and Access to Legal Advice.

• The Joint Council for the Welfare of Immigrants (JCWI) have produced an Access to Justice toolkit on understanding the different types of lawyers, knowing what to expect from them and finding a solicitor.

There are no LAA 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 flyer from Migrants Organise.)

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]

If you are helping a person detained in prison to find a legal aid immigration solicitor, you should first call the firm or organisation and ask if they have a legal aid contract and arrange the 30 minutes free legal advice accordingly.

People detained in the prison estate are highly likely to be facing deportation action. Don’t forget that legal work on deportation appeals is no longer automatically covered by legal aid unless that person is claiming they will be hurt or killed in their country of origin. It is therefore likely that that an application for Exceptional Case Funding will be needed. Otherwise, unless pro bono advice is available for a deportation appeal, the person you visit must be able to find the fees, perhaps with help from family or friends.

Anyone detained in a prison will face additional barriers to communicate with their solicitor, the courts, bail sureties or witnesses, and may only be able to send faxes or copy documents at the discretion of a prison officer. Meeting deadlines for appeals and lodging applications, including bail applications, can be extremely difficult. Visitors may be able to help with these activities if the local arrangement with the prison allows for it.

[1] https://hubble-live-assets.s3.amazonaws.com/biduk/file_asset/file/635/BiD_Prisons_Report_page_1__1_.pdf

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.

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.

AVID regularly submits FOI (Freedom of Information) requests to find out the numbers of people detained under Immigration Act powers for each prison - check our website for the latest information.

1. http://news.bbc.co.uk/1/hi/uk_politics/4945922.stm

2. https://www.andyhewett.com/detention

• Inform your coordinator if you meet someone in detention who you think might be a child. You need to determine whether a referral should be made immediately to the Refugee Council’s Age Dispute Project.

• Inform your coordinator if the person you visit or any other person you meet is at risk of harm, discloses to you that they were tortured or if they feel suicidal.

• Inform your coordinator if the person that you visit or a friend in detention tells you, or gets a message to you, that they are being held in segregation.

• 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 provide hard copies of guidance documents where the person you visit wishes.

• 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.

• For further reading on the dynamic nature of vulnerability and risk/protective factors in detention, an extensive research project was carried out by the Jesuit Refugee Service (JRS) into vulnerability in detention, across several European countries. This research demonstrates the complexity, subjectiveness, and dynamic nature of vulnerability, and how otherwise resilient people may become vulnerable due to the negative physical and mental effects of detention. This is useful reading to better understand how the person you are visiting might be impacted by their time in detention as well as the protective factors that might be a resource to them .You can find a full list of the personal, social and environmental factors in JRS’s report which is available here: http://www.refworld.org/docid/4ec269f62.html.

Visitors are allowed to give basic or generic information to a person in detention, sometimes called signposting, without any requirement for OISC accreditation (you can find more information about OISC in ). Visitors fulfil a hugely important role by contributing at this level. Unqualified or non-accredited visitors may provide general information “upon which a person can act or [signpost] a person onto an appropriate advice provider”.

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 detained under immigration, custody and prison officers, and IRC and prison libraries.

Visitors 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 OISC advises that all material is checked by a competent body or individual to ensure accuracy. You can check with AVID if you are not sure about this.

Advice not regulated by OISC includes advice given on actions against detention management companies, or the Home Office, in relation to conditions of detention.

The OISC appreciates the difference between advice and information. It has provided AVID with the example of a visitor who explained to a person in detention the appeal form they had to complete, as the person in question had insufficient English to complete the form. Explaining to them that they had to submit the form within 10 days, as this is stated on the form, would not constitute advice-giving in the view of the OISC, it is merely stating what is written on the form. Advice on how to complete the form, however, is different, and if an unqualified or non-accredited visitor were to do this it could constitute legal advice.

There are some grey areas. The OISC has contributed the following section to illustrate what constitutes ‘advice giving’ under OISC 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 advice 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.

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.

There has also been important research into the ways in which race, racism, immigration control and criminalisation intersect with issues of citizenship, belonging and identity. The deportation of so called “foreign criminals” cannot be separated from these social structures and hierarchies. If you want to read more on this, some places to start are:

• Juliet P. Stumpf coined the term “Crimmigration” to talk about the convergence of immigration and criminal law in her 2006 article: The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power.

• Deporting Black Britons by Luke De Noronha tells the stories of people who have been deported to Jamaica and in so doing explores the relationship between borders, racism, belonging and deservingness. If you are an AVID member or volunteer of an AVID member, login to watch the recording from a talk with Luke De Doronha with AVID on this topic.

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 Office of the Information Services Commissioner (OISC), can give immigration legal advice. In practice, this means solicitors and OISC 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.

If the person has a solicitor or an accredited immigration advisor, it is essential that any contact between them and the visitor is constructive, and nothing is done that could undermine the relationship between the representative and their detained client. “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 likely 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. As a visitor you are not their client, and they will likely be pushed for time to provide an update or discuss a case with you. If you can provide them with support or assistance that they need, perhaps gathering essential information for them that they are no longer funded under legal aid to collect, then they are more likely to make time to speak to you or will write to you.

Understanding each other’s roles is central to being able to work in harmony for the benefit of the detained person.

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

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 OISC 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 OISC 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.

1. https://ilpa.org.uk/how-visitors-and-lawyers-may-work-together-june-2008/

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 https://www.judiciary.gov.uk/wp-content/uploads/2016/02/mf-consultation-paper-feb2016-1.pdf

“How do I get out of here?” is the most common question asked of every volunteer visitor.

The primary concern for the majority of people detained is to leave detention, usually by means of release rather than removal. As a visitor it is important for you to know the basics about release from detention so that you can provide appropriate support.

Around one quarter of those people who leave detention are immediately removed from the UK by the Home Office. The majority are released into the community.

Visitors should be aware that release from detention into the community may not be automatic. Release from detention must be granted if a person succeeds in their immigration case, and it may be granted by the Home Office if it becomes apparent that removal is not possible within a reasonable time period. However, as often as not, it is down to those detained or their legal representatives to take the initiative and apply for release. Home Office migration statistics show there is a greater reliance on bail as a means of getting released from detention the longer a person is detained. Language barriers, lack of information, ill health, and a sense of hopelessness, can all prevent people detained knowing about, understanding, and pursuing their right to apply for release on bail or challenging the legality of their detention.

This chapter sets out the ways people may get released from detention, other than removal (which is set out in Removal, Return, and Deportation) or being successful in their substantive case. Anyone who the Home Office wants to deport because of their offending history is likely to find it much harder to get released from detention.

As set out in Legal Advice and Representation, visitors who are not regulated to do so should not give immigration advice as this is a criminal offence and incorrect advice can have serious repercussions for the person involved. This includes advising on bail applications. The information in this chapter is so that visitors can inform people they are visiting of the options available to them so that they can apply for bail themselves, ask their lawyer the right questions, and so visitors can prepare people on what to expect or advocate on someone's behalf (with their permission) to their legal representative.

Bail for Immigration Detainees (BID) is referenced throughout this chapter and is a vital organisation which provides legal advice to people in detention on how they can get released from detention.

Life in the community after getting released from detention can be difficult for people. During the pandemic, when people detained were released in large numbers, a number of visitor groups in the AVID network responded by establishing post-detention support. Even for those groups and visitors who do not offer post-detention support, effective signposting and some help managing this transition is important to ensure individuals are not left isolated or stranded. This chapter also contains signposting information for people who have left detention.

Immigration Tribunal bail is when a Judge at the Immigration Tribunal grants bail following an application by a person in detention. The outcome is decided at a hearing after the Judge hears from both the Home Office and the person detained and/or their representative.

In 2021, 10% of people released from detention were released on Immigration Tribunal Bail. In 2022, 21% and in 2023, 28%.

The Application

• The detained person or their legal representative completes the B1 bail application form and submits it by fax to the bail clerk at the appropriate hearing centre. Regional immigration tribunal hearing centres handle applications for specific detention centres and prisons.

• The hearing centre will notify the applicant and the Home Office of the hearing date and time, usually within the next 1-2 weeks.

• The applicant or their legal representative must then arrange for any supporting documents to reach the hearing centre before the hearing, and for anyone named in the application as a financial condition supporter/surety or as offering accommodation or acting to attend the hearing in person. Failure to attend may damage the application for release.

• On the day before the hearing, by 2pm at the latest, the Home Office must serve a document called the “bail summary” on the applicant and their legal representative. This contains the arguments that the Home Office Presenting Officer (HOPO), acting for the Home Office, will make against release on bail at the bail hearing the following day. The applicant should read the bail summary and identify any factual mistakes so they can bring these to the attention of their legal representative, or to the judge if they are unrepresented.

The Hearing

Bail hearings for people held in detention centres are usually heard by videolink. There is no right to an in person hearing, this is at the discretion of the tribunal.

Applicants or their legal representative may apply to the First-Tier Tribunal (Immigration and Asylum Chamber) (FTTIAC) for a hearing in person in exceptional circumstances, for example if the person has been detained for a very long period and it is thought that it could be useful for the judge to see them in person.

During an online bail hearing the applicant sits in a video link suite in the detention centre, while their legal representative (if they have one), the interpreter (if booked), any financial condition supports or accommodation providers, and any family members, also attend online via a platform named ‘CVP.’ Applicants get around ten minutes for confidential discussion with their solicitor or barrister by video link before the hearing.

During in person bail hearings, the person detained is required to appear in court. Their legal representative, financial condition supporters, the representative for the Home Office and the Judge will also be present in court.

People detained in the prison estate may also have their application heard by video link. If the prison has no video link suite they will be taken by escort to a hearing centre for an in-person hearing. Shortages of secure hearing rooms in the HM Courts & Tribunal Service estate in the London area, and the low priority given by the Home Office to using escorting resources for court hearings, can result in delays in getting bail applications heard or failure to escort to hearings on the day.

The conduct of the hearing

Attending court, whether in person or via video link, is a stressful experience, often aggravated by long periods in detention and previous failures to get release on bail. The psychological impact of detention may affect confidence and the ability to recall details and facts. The Home Office Presenting Officer (HOPO) can cross question the applicant, and regardless of the facts in the case will oppose release by arguing that the applicant cannot be trusted, and is likely to pose a risk to the public if released. All of this may happen through an interpreter, and is mediated via a TV screen. The hearing may be over very quickly, and it is quite common for applicants to feel that they have not been allowed to have their say.

The focus of any bail hearing is on whether or not the applicant will abscond if released, meaning that they are no longer in contact with the Home Office, and whether or not any risk on release (for example of re-offending) outweighs the presumption of liberty. Home Office assertions of absconding risk and offending risk are rarely backed up with evidence, and need to be challenged if the applicant is to have a chance of release. The applicant will need to explain how they will keep in touch with the Home Office, why they will not offend again, and - if they have children for whom they were caring before they were detained - why their release is essential for their children.

Judges should consider whether to grant bail in line with the considerations set out in Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber). This is a helpful document which enables people in detention to understand how the Judge will approach the bail application.

The judge will give their decision immediately at the end of the hearing, followed by a ‘Grant of Release’ document, a grant of “Bail in Principle” or a ‘Refusal of Bail’ notice. If granted bail, the document will set out their reporting requirements, their bail address, and any other conditions of bail.

Grants of Bail

If the applicant is granted bail, they will be released from the detention centre or prison where they are being held that same day, unless an electronic monitoring device (a tag) is a condition of bail, in which case the Home Office may detain them for a further 72 hours so as to fit the tag. If they will be living in Home Office accommodation on release they will be given a travel warrant for travel to this address, otherwise they must make and pay for their own travel arrangements to get to private accommodation. They may arrive late at night if the accommodation is far from where they were detained. Visitors can help by informing the accommodation manager on site of a late arrival. People should be released from detention with their property and with a summary of their medical notes.

Increasingly, a Judge may grant conditional bail or “bail in principle.” This is usually considered appropriate if an individual cannot be released immediately for example, where they do not yet have a suitable address to go to or where their probation officer (if they are detained on completion of a custodial sentence) has not yet approved their bail address and immediate release might place them in breach of their licence conditions. The grant of bail in principle may state something like, “to be released when an address approved by Probation.” Where bail in principle is granted, it is possible for individuals to be detained for a long time afterwards due to delays with securing a release address.

Immigration Judges do sometimes grant bail even in the absence of an approved release address on the assumption that (a) landlords will give permission to live in a property and (b) (where a person is subject to a licence) a probation officer will approve the bail address (Paragrah 68, Guidance on Immigration Bail for First-Tier Tribunal Judges, 2023). However, individuals who are subject to a licence should be aware that if the address is not approved, they may technically be in breach of their licence conditions even if their release is ordered by an Immigration Judge. It will be up to the individual if they wish to be released regardless. They should be advised to keep in frequent contact with their probation officer to avoid being in breach of their licence and any enforcement action taken as a result. It is unlikely that probation will take enforcement action if an Immigration Judge has ordered release notwithstanding the terms of the licence but this is not guaranteed.

Following the bail hearing, the Judge will usually transfer “management of bail” to the Home Office unless there are good reasons not to. This means that the Home Office, not the Tribunal, has the power to amend, remove or add bail conditions of their own volition or on application by the person on bail. If management of bail is transferred to the Home Office, individuals should be advised to read their Bail 201 form carefully on release as it is possible that the bail conditions granted by the Tribunal may have been amended by the Home Office.

Withdrawing bail applications

It is not uncommon for bail applications to be withdrawn, either before the hearing or at some point during the hearing. This may be on the advice of the judge, or on the advice of the legal representative. Judges may advise withdrawal if a surety listed on the application form has not been able to attend the hearing, and without a surety they are not minded to grant bail, if the applicant has not received a bail summary from the Home Office, or if an unrepresented person has submitted an incomplete application.

This example is taken from a 2012 BID report which highlights the challenges for people who lodge a bail application themselves (and may not fully understand the role of sureties):

“The applicant claimed to have many sureties (parent, brothers, partner), in the country, but none could come to the hearing. His partner was in hospital. (The) judge advised him to withdraw the application as he would not be granted bail without proof of where he would live and sureties to account for him.” [1]

Legal advisors may advise withdrawal if the conduct of the hearing raises concerns about fairness, for example if it becomes apparent that the judge has not read important supporting documents.

The Home Office will use the fact that someone has been refused bail in the past to argue against release in subsequent bail applications, and may use judges’ comments from the Refusal of Bail notice. A withdrawal may therefore cause fewer problems for the applicant, if refusal seems obvious.

1. BID, (2012), The Liberty Deficit: long-term detention & bail decision-making. A study of immigration bail hearings in the First Tier Tribunal. p.34 https://hubble-live-assets.s3.amazonaws.com/biduk/redactor2_assets/files/166/The_Liberty_Deficit.pdf

Bail is the temporary release of a person who would otherwise be in detention, usually with conditions attached to that release. Immigration bail in its current form can be viewed as a mechanism for enabling release from administrative detention with conditions attached, designed to ensure contact with the immigration authorities.

Anyone in detention can apply for bail if they have been in the UK for eight days or more. Legal aid is available for bail applications (read more on ). This is provided by contracted firms through the .

Schedule 10 of the Immigration Act 2016 commenced on January 2018 and replaced the power of the Home Office to grant what was once called “temporary admission” with “Secretary of State bail.”

There are now two main types of bail: Secretary of State bail and Tribunal bail where immigration bail is granted by:

• The Home Office, namely an immigration officer or by a civil servant acting on behalf of the Secretary of State for the Home Department (without a hearing);

• The Immigration Tribunal by an immigration judge of the First-tier Tribunal (Immigration and Asylum Chamber) (with a hearing);

The High Court can also grant bail as a remedy in an application for Judicial Review.

The Illegal Migration Act 2023 (see ) prevents people who are subject to its provisions from being granted First-Tier Tribunal bail in the first 28 days of their detention. These provisions are not yet in force and, at present, the effects of the legislation remain unclear.

Secretary of State bail allows a person to be released into the community whilst they are still liable to be detained. It is granted by the Home Office either of their volition or where an individual applies using a particular form (form Bail 401). Someone in detention should be given a Bail 401 form by detention centre staff on request. The form can also be accessed here.

The decision to grant Secretary of State bail is made by the Home Office, without a hearing, on consideration of the papers (namely the bail form and any supporting documents, such as medical records, supporting letters and evidence that they can live at a particular address). A decision should be received within 10 days of making the application.

If an individual applies for Secretary of State bail, they should try to provide the Home Office with details of a release address; without somewhere to live, a grant of release on Secretary of State bail can be lower because the Home Office will not be sure where to find that person. However, a lack of release address is not fatal to a bail application and, if a person in detention has nowhere to go and will become destitute on release, they can apply to the Home Office for a release address.

Anyone in detention who is on a HMPPS licence following a prison sentence must satisfy HMPPS that their release address is acceptable, a process which can take some weeks. This can complicate an application for release. In order to avoid complications and delay, people in detention should be advised to liaise with their Probation Officers to ensure that their release address is compatible with their licence before and whilst their application for Secretary of State bail is pending. If this is not possible, the Home Office may contact the Probation Officer directly. Individuals applying for Secretary of State bail may also provide details of any financial condition supporters, formerly known as “sureties”, on the Bail 401 form.

If the Home Office decides to grant bail to an individual, they will be released with a Form 201 which sets out any bail conditions. Bail conditions might include reporting to the Home Office at a reporting centre or a police station on a regular basis (sometimes referred to as ‘signing’), and living at an address known to the Home Office. A financial condition can also be imposed whereby a “financial condition supporter” pledges a sum of money to assure the Home Office that the bailee will not abscond. Those liable to deportation are also required to comply with 24-hour electronic monitoring/“tagging” unless the Home Office decides otherwise.

Anyone who is granted Secretary of State bail may be re-detained by the Home Office at any time. Missing a reporting event, changing address without notifying the Home Office, or being stopped by the police, may trigger detention.

The Home Office uses Secretary of State bail to release when it has made the decision not to maintain detention for whatever reason. It is a quick means of release for the Home Office. Visitors do see cases where individuals, including very ill people, are released on Secretary of State bail from detention into homelessness - without any known accommodation or financial support - just with reporting requirements but no means to meet these requirements.

Where bail applications are not successful, an individual may draw a response from the Home Office containing additional information about progress in the case, or information the Home Office holds on that person which can be challenged if incorrect. Secretary of State bail applications can be viewed by legal representatives more as a strategic tool than a release application per se. For example, in unlawful detention proceedings, solicitors may be able to argue that they gave the Home Office the opportunity to release the person detained but that it unreasonably chose not to by refusing bail. It should be noted however, that due to limited capacity and in the interests of time and saving costs, immigration solicitors are unlikely to pursue Secretary of State bail applications over Immigration Tribunal bail applications.

With the limited amount of legal aid available, it can be difficult to get a solicitor to apply for Secretary of State bail. In such cases, the detained person can make an application themselves but should (if possible) first ask their solicitor if there is any reason why they should not do so at that time. The application should be made to the Home Office through an Immigration Officer at the relevant detention centre. See Bail with or without a legal advisor.

In 2021, 76% of people leaving detention were released on Secretary of State bail. In 2022, 56% and in 2023, 34%.

Tribunal judges will not usually grant immigration bail if the applicant cannot provide the court with a release address (although it is possible in certain circumstances as explained above). A grant of release on Secretary of State bail is also more difficult without a release address, although not the deciding factor.

Anyone who is offered private accommodation as their release address (from friends, family or a private landlord) will need to provide the tribunal with documentary evidence of ownership or written permission from a landlord to have a tenant in advance, and ideally they should be in attendance at the bail hearing in person with these documents. If applying for Secretary of State bail they should include details of this address in their application.

If the person in detention does not have access to private accommodation, they can apply to the Home Office for different types of accommodation based on their immigration case/history. Asylum seekers and refused asylum seekers can apply for accommodation under section 95 and s.4(2) of the Immigration and Asylum Act 1999 using If an individual (who is not an asylum seeker or a failed asylum seeker) is likely to be destitute on release, they can request Schedule 10 accommodation directly from the Home Office by completing and sending off . Those who have criminal convictions can request Schedule 10 accommodation on their Bail 401 form however, the Home Office has been known to request that a form 409 form is also completed.

Asylum applicants who have not yet received a decision from the Home Office on their asylum claim can only apply for accommodation after they are released from detention. However, they can call Migrant Help to request urgent emergency section 98 accommodation in the meantime in order to avoid destitution.

People who have been refused asylum can apply for accommodation from within detention, however, they need to show that they have been granted conditional bail/bail in principle first. This can be a circular and lengthy process and individuals may wish to seek advice on an unlawful detention claim or Judicial Review if they are not released within a reasonable period of time.

People detained should be aware that their request for Schedule 10 accommodation may be interpreted by the Home Office as illustrating a lack of ties to their community, friends or family. This might conflict with the details of an Article 8 (private and family life) claim they wish to pursue. Such individuals, when making the application, may wish to write down why they cannot be accommodated elsewhere. However, they should seek legal advice on this beforehand.

Those who need accommodation should complete the relevant form and send it to Migrant Help. This can be done with assistance from more experienced visitors or your casework team if your group has one. An Immigration Officer in detention may also be able to support with completing the relevant forms. Ordinarily, applications for accommodation do not constitute legal advice. However, changes to the bail 409 form (for Schedule 10 support) mean that this is a grey area. For more information on who can provide legal advice visit

Resource Tip: for more information on assisting people to complete and submit Bail 409 forms.

Home Office accommodation is provided on a no-choice basis in any location in England or Wales.

It is commonplace for there to be delays to release from detention due to a delay by the Home Office in finding appropriate accommodation and delays by probation services in approving proposed addresses. AVID visitor groups have reported that this is an ongoing and escalating problem, seeing increased delays and an increase of people being released into homelessness.

Accommodation issues are not an immigration matter so are not within the scope of immigration legal aid. Those who face extreme delays in getting Home Office bail accommodation should be referred to a public law solicitor, preferably one with a housing or community care contract as well. The legal advice providers operating in detention centres are not funded to pursue accommodation application delays under their immigration legal aid contracts.

Applications for Home Office accommodation with an offending history

It is much more complicated for the Home Office to place people in detention who have a past criminal record or who have been detained after their prison sentence in accommodation around the UK intended primarily for asylum seekers. For such individuals, applications for Home Office accommodation can take months or even more than a year. Legal challenges to the delay in providing accommodation have been successful [1] but this has not prevented further delays in other applications.

If the person you visit is experiencing delays of more than a couple of months in getting a bail address to enable them to apply for release they may wish to speak to Bail for Immigration Detainees about specialist legal work on their behalf, or a public law solicitor.

Bail addresses: still on licence when applying for immigration bail?

Any person in detention who is still within the period of their HMPPS release licence after serving a custodial sentence needs to get their proposed bail address approved by their probation officer. This applies both to private addresses and to Home Office bail accommodation. Getting probation approval may take some weeks.

Immigration judges can choose not to grant bail to an address that is not approved by probation, as this would put the individual in breach of their HMPPS (Her Majesty’s Prison and Probation Service) licence and risk recall to prison. However, as set out above, Judges can assume that an address will be approved and order immediate release. The individual will need to consider their options before agreeing to be released in these circumstances as they could risk being in breach of their licence. They should, in all circumstances, communicate frequently and clearly with their Probation Officer about their circumstances and options to avoid enforcement action for breaching their licence.

A small proportion of people still on licence are required, as a condition of their licence, to live in HMPPS Approved Premises if they are not in custody. If this is the case, they should seek legal advice in order to minimise delays. They can also contact their Probation Officer to ensure that an Approved Premises is found in time before their bail hearing or after a grant of bail in principle.

Mandatory electronic monitoring for those facing deportation

If someone is liable to deportation (this includes when the Home Office is simply considering whether to deport them), paragraph 2(3) of Schedule 10 to the Immigration Act 2016 requires the imposition of electronic monitoring except where that would be impractical or contrary to an individual’s Convention rights. A Judge has no power to disallow electronic monitoring conditions in respect of those liable to deportation.

If a person detained has health conditions or other reasons as to why they should not be fitted with an electronic monitoring device, they should put this in writing to the Home Office, either in their bail application form or after release, and explain why it would be impractical or contrary to their Convention rights. If the Home Office refuses to remove the electronic monitoring condition notwithstanding the representations, individuals should seek the advice of a public law solicitor in relation to challenging the refusal via judicial review.

If the applicant is refused bail they may apply again for release at a later date. How soon to apply again is a matter of judgement, taking into account what else is happening in the persons case and ideally taken with the support of a legal advisor.

Under provisions introduced in the Immigration Act 2014, the immigration tribunal must refuse - without a hearing - any bail application made within 28 days of a previous refusal, unless the applicant can clearly demonstrate in their application that there has been a material change in their circumstances. For example, a surety is now available, or there is new information about the availability of a travel document. In other words, unless there has been a concrete change in circumstances there is unlikely anything to be gained by putting in another bail application a couple of weeks after a refusal.

Anyone who is reliant on the Home Office granting them a bail address, and especially any person with a criminal conviction which will generate delays in granting a bail address, will tend to find that the frequency of bail applications is driven by the availability of Home Office bail accommodation and the HMPPS local workload, rather than their specific circumstances.

Research by BID has consistently found that only half the people in detention that they spoke to had a legal advisor (43% of people in their 2022 survey [1]). Legal aid provider firms with detention centre contracts are required to consider bail periodically. Even those who have a legal representative acting for them may need to be encouraged to lodge bail applications. Legal aid does not generally allow for more than two bail applications. Those who are ineligible for legal aid and have instructed a private solicitor may struggle to pay hundreds of pounds for a bail application on a regular basis.

People in detention without a legal representative, or who cannot afford to pay for a bail application to be prepared, can lodge their own bail application with the immigration tribunal. It is entirely possible to get released this way. It is hardly surprising that success rates have been found to be lower than an application prepared by a legal advisor and presented by a barrister. Among other things, this is because, without any assistance people may not be clear about which facts in their case are relevant to their bail application, how to present at the hearing, the use of supporting evidence, and the importance of getting any financial condition supporters to turn up and bring relevant documents.

People in detention can get free phone advice and other information on bail from Bail for Immigration Detainees (BID) to help them prepare and present their own simple application for release. BID can also provide representation in some instances and run legal advice sessions in detention centres.

1. https://hubble-live-assets.s3.amazonaws.com/biduk/file_asset/file/716/221205_LAS.pdf

Individuals detained in the prison estate face additional barriers to applying for bail compared with people detained in the immigration detention estate. The unique challenges for people who are detained in prisons are set out in Immigration detention in the prison estate .

These include:

• The lack of Legal Aid Agency immigration legal advice surgeries/consultations, making it much harder to find a legal advisor. In SM v Lord Chancellor [2021] EWHC 418 (Admin) the High Court held that free legal advice must be made available to immigration detainees held in prisons to enable similar access to justice to that of people detained in detention centres. However, a report by Bail for Immigration Detainees in 2022 found that access to justice for immigration detainees in prison was still very limited [1].

• Greater restrictions on communication. Home Office bail summaries may not arrive on the wing in enough time for a person detained to read and understand the arguments against their release before the hearing.

• Home Office bail accommodation grant letters may arrive on the wing as or after they expire, making it impossible to lodge a bail application.

• Failures in Home Office escorting contracts mean that people in detention may not be able to attend the bail hearing in person. If that happens, provision can be made for them to join remotely or for the bail hearing to go ahead in their absence if they are represented and their representative has sufficient instructions.

• Video links from prisons are capped at 60 minutes, but some immigration bail hearings take longer, meaning that applicants may not be able to participate in the entire hearing.

1. Available at: https://hubble-live-assets.s3.amazonaws.com/biduk/file_asset/file/635/BiD_Prisons_Report_page_1__1_.pdf

A financial condition supporter is someone who gives an undertaking to the immigration tribunal, or the Home Office in an application for Secretary of State bail, that they will ensure that the bail applicant, if released from detention, will answer to bail. The undertaking is bolstered by a promise to pay a forfeit in the event that the person granted bail absconds. An acceptable financial condition supporter - known as a cautioner in Scotland - is someone who the judge feels will have sufficient influence on the bail applicant to ensure that they keep in touch with the Home Office. There is no obligation in law for a financial condition supporter to supervise the person on bail or police their conduct once released, although this may not stop the Home Office or even a judge from suggesting they are unsuitable because they were unable to stop previous offending behaviour, or live too far away to be able to exercise any control. Financial condition supporters must attend the bail hearing (either online or in person) with proof of identity, address, and income, and if called on by the judge to speak, must explain to the judge how they know the applicant, and how they intend to ensure that they do not abscond. Financial Condition Supporters don’t need to be British citizens, but they do need to have leave to be in the UK. The amount of recognisance to be offered need only be an amount that it would be painful, for that individual, to forfeit if the person on bail was to abscond.

The bail guidance for judges [1] explains the role of financial condition supporters as follows:

1. Where a judge decides that a financial condition is necessary to reduce to an acceptable level the risk of non-compliance with the other bail conditions, they will evaluate the level of the financial condition and the ability of the person supporting the financial condition to meet that sum. The bail condition that the financial condition is intended to support should be specified to enable the financial condition supporter to understand the risk they are guaranteeing.

2. Because the financial condition is an additional mechanism for reducing the risk of non-compliance, it will rarely be necessary to question the person supporting the financial condition about whether they have any influence over the person to be released on immigration bail. Their suitability will depend on any adverse evidence about their character, such as a criminal record, and whether there is reliable evidence they would be able to cover the financial condition or their part thereof.

It is not necessary to offer a financial condition supporter in order to be released on bail by the tribunal. The bail guidance for judges states:

84. A financial condition is not a pre-requisite of immigration bail. In each case, if a judge is satisfied that a person will comply with the conditions of bail, a financial condition will not be required. Where there is some doubt that a person will comply with the bail conditions, a financial condition might provide additional weight to permit the judge to be satisfied the person is more likely than not to comply with the other bail conditions. If a financial condition is imposed the financial condition supporter must acknowledge their responsibility. As release cannot take place until this has been done, judges should be flexible as to how this is achieved and an email or electronic signature should suffice.

88. In all cases, judges must be cautious about imposing a financial condition simply because one is offered. A judge must only impose the minimum bail conditions necessary and do no more because bail conditions are themselves a restriction of liberty.

A good financial condition support may, however, help to tip the balance in favour of release. They should expect that their name, address, and other details may be subject to checks with the police and local immigration teams.

Should visitors act as sureties?

From time to time, someone you are visiting might ask you to act as his or her surety. AVID advises that volunteer visitors do not act as sureties, and we encourage visitor groups policies and code of conduct to express this. This is an important principle of maintaining boundaries in your role as a visitor.

You should speak to the individual’s legal representative if they have one, and your group coordinator, about this request before agreeing to anything. Some visitors groups have clear guidelines about visitors not acting as sureties. As a visitor you should never feel obliged to act as a surety, it is a big responsibility. Before taking on the role of surety you should be entirely clear about the responsibility and liability. You may lose money if the person loses contact with the Home Office. If you agree to act as a surety and this is not in line with the code of conduct of your group, you are undertaking this in a personal capacity rather than as part of the visitors group.

Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber). See page 14. https://www.judiciary.uk/wp-content/uploads/2024/03/Guidance-on-Immigration-Bail-for-Judges-of-the-First-tier-Tribunal-Immigration-and-Asylum-Chamber-Presidential.pdf

A bail hearing may be scheduled, only for the Home Office to serve removal directions. It will be for the legal representative, on instruction from their client in detention, to determine whether or not to withdraw the bail application prior to the hearing. This will depend on a number of factors, including whether or not the person has a travel document in place, and whether there are barriers to their removal.

The Immigration Act 2014 introduced a provision requiring any release on bail, granted by an independent immigration judge to someone who has removal directions set for a date within 14 days of the bail hearing, to be approved by the Home Office. In other words, the government can override a judge’s decision to release on bail if removal directions are scheduled within 14 days. It is however unlikely that a Judge would grant bail with removal directions in place.

Getting released from detention can be exhilarating on the day, a literally unbelievable feeling. But release from detention is not straightforward given the challenges, complexities and hostility of the UK immigration system.

Unless a person has been freed because they have won their case, their legal battles are probably not over. They may have to survive on little or no money, and will most likely be unable to work legally. Even people granted refugee status struggle to get established in the UK. People who have been in detention may have become unplugged from their previous support networks, and health care services including mental health services, or may need all of this as a result of being detained and yet not know how to find it. People may struggle with unfair treatment, of being marked out somehow by being detained, of shame, and of fear of being re-detained.

Since the COVID-19 pandemic, during which time large numbers of people were released from detention, visitor groups in the AVID network have increased the support that they offer post-detention. This varies from limited support in emergency situations; support with travel costs; onward referrals and signposting to continued casework support. However, the majority of groups do not have the resources to provide continued support to people who were previously detained.

It is important for visitors to know what their group offers after detention so that they can be clear on the nature of their visiting relationship from the start and on what will happen after the person leaves detention. It is also important to be aware of other sources of support which you can signpost someone to after detention so that this transition is as easy as possible.

Visitor Groups Providing Post-Detention Support

Other useful information and organisations

The terms ‘return’, ‘removal’, and ‘deportation’ are often used interchangeably, but - in immigration policy - they are all different processes, apply to different categories of people, and each process has a different set of consequences for subsequent re-entry to the UK.

When someone claiming asylum or seeking a visa to remain in the UK has their claim or request refused, is found to be present in the UK without leave to be here or is found to have broken conditions of their leave to be in the UK - the Home Office expects the person to leave the country promptly. If they fail to do so, they may be subject to enforcement action, including detention and removal.

The methods used by the UK government to ensure that it can enforce removals have come under considerable criticism. Organisations and groups in the migration sector continue to raise concerns about the mistreatment and abuse of individuals and families during the removal procedure. This has been to the extent that Jimmy Mubenga was killed during a removal flight in 2010, suffocated while being restrained (using an unlawful face forward restraint) by three G4S security guards working as overseas escorts for the Home Office.

In recent years, the Home Office has made it harder for lawyers to stop removals by giving people less notice of their removal. And, independent immigration judges now need the permission of the Secretary of State for the Home Department (SSHD) to release a person on bail close to the date of removal, even if those removal directions are later cancelled or the removal cannot take place.

This chapter sets out the different ways that people in detention (and sometimes their immediate family) who the Home Office are trying to get out of the UK, are induced to leave the UK on a voluntary basis or are forcibly removed from the country. Most people who are subject to enforced removal or deportation have been taken into detention for this purpose. Sometimes this is for only a few days before their flight, but in other cases people are subject to enforced removal or deportation from the UK only after a protracted legal fight and months or years in detention.

This chapter also includes key sources of information and advice in the event that you are concerned by the treatment of someone you meet in detention who is subject to removal or deportation.

Up until 2019, the Home Office operated a policy whereby someone who has been told they are “liable to removal” (and who has not successfully appealed this decision), could be removed within a three month “removal window”. During this removal window, the Home Office could remove the person with just 72 hours notice if they were in detention and 7 days notice if they were not detained.

This policy was successfully challenged by Medical Justice [1] and by an individual claimant, FB [2] and found to be unlawful because it led to an unacceptable risk of preventing access to justice and access to the courts to challenge relevant decisions. The three month removal window has since been suspended.

It is now a legal requirement that someone has a minimum of five days’ notice between being given notice of removal and the removal date.

The updated Enforced Removals guidance [3] sets out the three step removal decision process. This is that someone should receive a Notice of a liability to remove (NOL); Notice of intent to remove (NIR) and Notice of departure details (NDD). The NOL tells the person that they are liable to be removed and the reason why they do not have permission to stay in the UK (sample wording for the reason is included in the guidance). The NIR is the point at which the 5 day minimum period is in place and tells the person that the SSHD intends to remove them, the destination and their notice period to seek legal advice prior to removal. This will usually be served with the NDD which includes the date of removal, route and destination.

For people who the Home Office wants to deport from the UK, the ‘Deportation Decision Letter’ starts the notice period for removal, during which they may not be removed. The decision letter should inform the person that they can appeal the decision and the period in which to do this.

What circumstances mean that a person should not be removed from the UK?

There are certain circumstances under which the Home Office should not remove a person, including but not limited to the following:

• Anyone with a pending asylum claim, other than third country cases.

• Anyone who has submitted a fresh claim, but where a decision has not yet been taken about whether it will be considered as a fresh claim.

• People who are waiting for certain types of immigration appeal to be heard.

• People who are waiting for other types of legal appeals to be heard, such as cases before the family court.

What can be done to stop removal?

• An appeal can be made after receiving a Notice of Liability to remove. Someone cannot be removed after receiving Notice of Liability to remove and before receiving Notice of Intent to Remove.

• Where judicial review proceedings are brought this may suspend removal.

• Anyone with an injunction preventing their removal from the UK. An injunction is an order issued by a court requiring a party to i) do something or ii) not to do something. An injunction will not be granted simply to keep someone from being removed, but to keep them from being removed in order that a representation or an application can be examined by a court.

The removal of an individual from the UK can be stopped even in the final moments of the process, so long as the aircraft is still on the ground with the doors open. In a small number of cases where a court has determined that the Home Office removed someone unlawfully, that person must be brought back to the UK.

As a visitor, and without all the facts in the case, it can be difficult to know what a person’s circumstances are. Those who are given a notice of liability to removal should be encouraged to immediately seek immigration legal advice, or contact their solicitor or OISC Level 3 advisor without delay. Visitors should not be tempted to advise someone facing removal, beyond helping them to find an immigration legal advisor as a matter of urgency (see Legal Advice and Representation). Incorrect or incomplete advice in relation to removal may have permanent and life-changing consequences.

1. High Court suspends unscrupulous policy of removing unwanted migrants from the UK without warning - Medical Justice

2. https://www.duncanlewis.co.uk/Reported_Case/Court_of_Appeal_declares_the_Secretary_of_State_for_the_Home_Department%E2%80%99s_removal_policy_is_unlawful_%E2%80%93_breaches_the_constitutional_right_of_access_to_justice__(21_October_2020).html

3. Enforced removals: notice periods (accessible version) - GOV.UK (www.gov.uk)

4. Conducive deportation (accessible) - GOV.UK (www.gov.uk)

Since leaving the EU, the UK is no longer party (as of January 2021) to the Dublin Regulation which enabled the UK to send people seeking asylum back to an EU member state to process their claim.

The UK government has since been looking for alternative means to avoid processing asylum claims in the UK and in response to the increase in numbers of people who are arriving via the channel to seek sanctuary. Under paragraphs 345A-B of the archived Immigration Rules [1] the government can declare asylum claims “inadmissible” (i.e. not considered) where someone could have made an asylum application in a safe third country and “exceptional circumstances” did not prevent them from doing so. The application of “inadmissibility” was broadened by the The Nationality and Borders Act 2022 which sets out that asylum claims made on or after 28 June 2022 can be deemed inadmissible on the basis that the person seeking asylum has a “connection” to a safe third country (where a “connection” includes having been present in that country on route to the UK). See UK legislation on asylum and detention.

However, for someone's claim for asylum to be processed elsewhere - after being declared inadmissible - there needs to be an agreement in place between the UK and a third country. In April 2022, this led to the UK government to announce its plans to send people to Rwanda. What followed was a series of stalled attempts at removal, legal challenges and the ruling from the Supreme Court that the policy is unlawful because people sent to Rwanda face a real risk of refoulement (being sent back to a country where they risk persecution) [2]. In response, the government of the time passed The Safety of Rwanda Act (2024) to legislate that Rwanda is a safe country and should be treated conclusively as such by courts and decision makers.

In a welcome move, the Labour government has committed to ending plans to deport people to Rwanda. However, they have not ruled out other third country agreements. The Illegal Migration Act (2023) - of which the future is also uncertain and the majority of its provisions are not yet in force - sets out that people can be removed to other third countries designated as “safe” under section 80AA of the 2002 Nationality, Immigration and Asylum act [3]. India and Georgia have since been added to this list with the potential to add other countries.

1. https://www.gov.uk/government/publications/immigration-rules-archive-20-june-2022-to-27-june-2022

2. https://www.aviddetention.org.uk/article/rwanda-plan-unlawful-a-victory-with-warranted-concerns

3. https://www.legislation.gov.uk/ukpga/2002/41/section/80AA

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

Being deported from the UK is a grave matter, and often comes with distress and shock for people who the Home Office is seeking to deport, as well as the visitors who are visiting them. The shock is usually a response to the realisation that people who may have lived in the UK for years - decades even - can be forcibly removed even if they entered the UK lawfully and have leave to remain. Long term residence and family connections - including marriage - offer no protection, meaning that parents can be deported without their children.

The opportunities for challenging deportation have shrunk significantly over recent years. There is no automatic right to appeal a decision to deport, and the Home Office can decide that, even if an appeal is allowed, it can only be brought from outside the UK after the person has been deported. These provisions are sometimes referred to as ‘deport first, appeal later’. This policy was declared unlawful in a Supreme Court ruling in 2017 [1] because it deprived people of their right to an effective appeal. However in 2023 the Home Office announced its intentions to restart this policy [2].

Anyone who the Home Office is seeking to deport, should be encouraged to seek immigration legal advice without delay. Deportation is now out of the scope of legal aid, so legal advice will either have to be paid for or covered by Exceptional Case Funding (ECF) from the Legal Aid Agency. ECF is available for people for whom their human rights would be breached if they did not have access to a lawyer.

For people facing deportation who cannot get a lawyer, BID produces self help materials on deportation and has a project providing legal advice and representation to people facing deportation. Right to Remain’s Toolkit sets out this complex process very clearly. Given the current state of legal aid, if a person facing deportation cannot afford to pay for immigration advice and/or cannot obtain exceptional case funding, it is better to provide responses themselves to Home Office documents than to do nothing at all.

1. https://www.supremecourt.uk/cases/docs/uksc-2016-0009-judgment.pdf

2. https://commonslibrary.parliament.uk/immigration-appeal-rights/

What is a voluntary return scheme?

The Home Office introduced AVR (Assisted Voluntary Return) programmes in 1999.

These schemes typically provide those who sign up with a flight out of the UK, a cash payment, reintegration assistance on arrival in return for the commitment to no longer pursue any outstanding appeals or asylum claims, and a temporary ban on re-entry to the UK. The ‘voluntary’ in voluntary returns relates to an element of choice in the method of departure rather than whether or not a person wants to leave the UK. Home Office Immigration Enforcement manage both voluntary and enforced returns, but it has been pointed out that “when forced and voluntary returns are pursued in combination, the notion of voluntariness becomes compromised”. [1]

People in detention are not eligible for the Assisted Return package [3], after ministers expressed concern that people with no leave to enter or remain in the UK were being ‘paid’ to go home. However, they may be eligible if they are released from detention provided they do not meet one of the other factors which exclude people from these packages, including having been given a custodial sentence of 12 months or more.

The Home Office no longer funds independent advice to people considering an assisted voluntary return package. Anyone you visit or are in contact with who is considering an application for a voluntary return scheme should be encouraged to get independent immigration advice from a qualified solicitor or Level 3 OISC advisor if they have not already done so. This is because being accepted onto a return scheme will require withdrawal from all of the following: ongoing representations to remain in the UK, asylum applications and appeals, and judicial reviews, and will make lawful re-entry to the UK impossible for a period of time.

You can also signpost to other organisations who may be able to support with general advice for example British Red Cross, Praxis or Hibiscus (for women).

Facilitated Returns Scheme

“Foreign national prisoners” who are eligible can sign up for a Home Office return package designed to encourage people to leave the UK at the earliest opportunity, and reduce the cost to the public purse of their ongoing imprisonment and detention.

Facilitated Returns Scheme (FRS) is a voluntary returns scheme for “foreign national prisoners” (FNPs). Although nominally voluntary, those agreeing to return voluntarily under FRS have little prospect of returning.

With some exceptions, FRS is available to all “foreign national offenders” who are serving or who have served a determinate custodial sentence. FRS is not an alternative to deportation. Anyone who leaves the UK via FRS is still subject to enforcement decisions, and the consequences of those, including re-entry bans. People who sign up to FRS while still serving their custodial sentence will receive £1500 and those who apply for FRS when they are time-served will receive £750. Resettlement grants are expected to be used to fund “meaningful reintegration activity” such as setting up a business.

Table: Categories of prisoner covered by Facilitated Returns Scheme

NB: Some exceptions apply, and this is not an exhaustive list.

The Home Office says that “an FRS application will normally be rejected if previous behaviour of the applicant shows they are unlikely to make a compliant departure, or they are likely to breach the terms of the scheme.” [4] There are a number of factors which may prevent someone leaving the UK via FRS, including an outstanding offence that is being prosecuted, or being subject to a confiscation order.

If someone meets the criteria above and wants to leave the UK via FRS they can:

• Contact the Home Office Criminal Casework FRS team directly on 0208 760 8513

• Tell a prison officer or a Home Office Immigration Enforcement officer at the prison

The Early Removal Scheme

The Early Removal Scheme (‘ERS’) allows for the removal or deportation of “foreign national offenders” earlier than when they might normally be eligible for release after serving a part of their custodial sentence.

Section 47 of the Nationality and Borders Act 2022 (‘NABA 2022’) amended section 260 of the Criminal Justice Act 2003 so that people serving a custodial sentence without British Citizenship can be removed 12 months prior to when they would normally be released (this used to be 9 months). However, the ERS window is proportionately shorter when an individual receives a sentence of less than four years. This is because, by law, at least one half of the custodial period of the sentence should be served before an individual can be removed. So, where an individual receives a custodial sentence of three years, the custodial part of the sentence will be 1.5 years of which they would need to serve half before being eligible for early removal. The prison will be responsible for calculating the ERS eligibility date and notifying immigration enforcement. The Foreign National Offender Returns Command (FNORC) department of the Home Office will then decide on when the individual can be removed or deported and will notify the prison accordingly.

Section 47 of NABA 2022 also enables “foreign nationals” recalled to prison to be eligible for the ERS after the eligibility date has passed. Section 47 further introduces a “stop the clock” provision which means that - should someone return to the UK after being released under the ERS, they would be returned to prison to serve the remainder of the custodial part of their sentence.

Details of the relevant parts of the legislation governing ERS are available at annex H of the Prison Service instruction (PSI) 4/2013. The Home Office also has published guidance on the ERS [5]. The Guidance explains that certain “foreign nationals” are not eligible for the ERS such as those who are serving indeterminate sentences and those serving sentences for terrorism offences and subject to certain release provisions. It also states reasons why early release might be refused. For example, if there are serious concerns for public safety or there is evidence of intentions to commit further crimes - where a crime includes plans to come back to the UK without permission.

Should an individual wish to find out more about their eligibility for the ERS and their ERS date, they should be advised to find out more information from prison administrative staff.

1. Koch, A, (2013), ‘Assisted voluntary return schemes’, Forced Migration Review issue 44

2. Home Office, (2016), Family returns process (FRP). Guidance and operational process for removing families with children under 18 years who no longer have any right to remain in the UK and are liable to be removed. p. 13. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/564954/Family-returns-processv2.0.pdf

3. Gov.uk pages ‘Return home if you're in the UK illegally or have claimed asylum’. Available at https://www.gov.uk/return-home-voluntarily/who-can-get-help

4. Home Office, (2024), The Facilitated Return Scheme (FRS). version 13.

   https://www.gov.uk/government/publications/the-facilitated-return-scheme-frs

5. The Early Removal Scheme (Version 9.0) (9 December 2022) available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1123959/The_Early_Removal_Scheme__ERS_.pdf.

People held in London’s removal centres are subject to constant reminders of the intentions of the Home Office to remove them from the UK. Brook House, Tinsley House, Colnbrook and Harmondsworth IRCs have been built adjacent to the runways of Gatwick and Heathrow airports. Visitors to people detained in these centres cannot avoid the sight and sounds of planes taking off at close quarters.

At the point of being taken to an airport and leaving the UK, people in detention are treated the same way regardless of whether the legal basis of their departure from the UK is deportation or removal. In this section we use the word ‘deportation’ to cover both types of cases for convenience and to make clear the violence of this process.

There are a couple of practical requirements which may determine whether a person can be deported from the UK. The first of these is the need to have a valid travel document, the second is being considered fit to fly.

Travel documents

The Home Office may hold the passport of a person that they want to remove from the UK and send back to their country of origin, for example if it was confiscated during a raid before the person was taken into detention. With a valid passport it should be a straightforward matter for that person to be readmitted to their country of origin on arrival. Expired passports can generally be reissued in the UK to enable travel.

If someone in detention does not have a passport (for example they entered the UK with no documents), then the Home Office will take steps to obtain an emergency travel document (ETD) from the relevant foreign mission in the UK, and will expect the person to cooperate with this process, providing sufficient information about themselves to enable the foreign mission to acknowledge them as a national and issue a travel document. This can be a slow process, whether or not the individual cooperates.

Some countries will accept the return of their nationals on a document called a UK Letter [1], produced by the Home Office, and sent with accompanying information about the individual and their ties to the country in question. This is a quicker and more straightforward process than getting an emergency travel document.

Some people simply do not have the information demanded by the Home Office. For example, if they left their country of origin many years ago as a young child. Others decide not to cooperate with the process, perhaps just for a period of time, in an attempt to remain in the UK. Where there are difficulties and delays in re-documentation, the individual will often be characterised by the Home Office as non-cooperative. This has consequences for views on their alleged absconding risk, and can result in release on bail being more difficult and their detention becoming prolonged.

The Home Office may issue a Notice of Liability to Removal letter to someone without a travel document being in place, but with the expectation that it will be obtained before issuing removal directions.

Fit to fly?

Airlines have stand alone ‘fit to fly’ regulations, generally requiring passengers who have requested assistance to board a flight to provide information about their condition and any special handling needs, and only requiring medical clearance if a potential passenger has an acute or unstable medical condition, a communicable disease, or is unable to care for themself.

The Detention Service Order (DSO) The Protection, Use and Sharing of Medical Information Relating to People Detained Under Immigration Powers set out the relevant process [2] sets out the procedures for fitness to fly. The Home Office starts from the assumption that a person fit to be detained is fit to be removed unless there is clinical evidence to the contrary. The person in detention, their representative, a registered healthcare professional, of the IRC healthcare team can raise concerns of their fitness to fly.

Confirmation that a person is ‘fit to fly’ is not required for each and every person the Home Office wishes to deport. The Home Office does however have a positive duty of care for people it has detained who are physically or mentally ill, and should exercise that positive duty in accordance with its legal obligations. Arguably, this duty should - but in practice may not always - include protecting those people in detention who are not fit to fly from any deterioration in their health as a result of enforced removal.

If visitors have any concerns about the effect of a long journey, including a flight on a person’s health, or want to ensure that adequate support is provided during the journey, they can contact Medical Justice whose healthcare team can assess fitness to fly.

People in detention or their legal representatives may also make representations to the Home Office, arguing that they should not be removed because of their current state of health. The Home Office requires people to substantiate representations with a medical report, and may ask to be given access to medical records, in order to consider postponing removal.

If a person in detention is being returned to a country for which they will need malaria prophylaxis, Home Office guidance is that they should not be returned before sufficient time has passed to allow the treatment to take effect.

The inadequacy of healthcare assessments in detention of “fitness to fly” of people in detention was highlighted in evidence in the Brook House Inquiry. Evidence heard that there were limited details and gaps in people’s medical history in fitness to fly letters and - on occasion - fit to fly letters pre-emptively approved the use of force to facilitate removal of someone with a healthcare condition. In response, the Brook House Inquiry Chair recommended that:

• Recommendation 20: Updating guidance regarding ‘fit to fly and fit for detention’ letters: The Home Office must review and update Detention Services Order 01/2016: The Protection, Use and Sharing of Medical Information Relating to People Detained Under Immigration Powers, to ensure that guidance given to GPs working in the immigration detention estate in relation to their duties and responsibilities in writing ‘fit to fly and fit for detention’ letters is clear. It must liaise with NHS England and any relevant medical regulators as necessary. The Home Office must ensure that training about the updated guidance takes place on a regular (at least annual) basis for GPs working in the immigration detention estate and those responsible for managing them. The training must be subject to an assessment. The Home Office must monitor compliance with this updated guidance at least annually.

The response from the government at the time was [3]: “Within IRCs, NHS England are responsible for commissioning a healthcare service consummate to that which is available within the community. Although fit to fly letters are a medico legal practice – and outside of the responsibility of NHS England – where a clinician has concerns in relation to an individual’s detention or fitness to fly, they will, in line with safeguarding responsibilities ensure that this is shared, where appropriate, with the Home Office to support decision making.”

Transport

Most enforced removals take place using scheduled flights. Airlines must be told by the Home Office that they are carrying people who are being forcibly removed from the UK. Certain airlines impose a restriction on the number of people being forcibly removed that they will carry on a flight. The Home Office increasingly uses charter flights to avoid objections and interventions by cabin staff, flight crew, and passengers, and as a more efficient way of moving larger numbers of people to countries with high numbers of returns and deportations. For example, a charter flight might leave from the UK for West Africa, stopping in Nigeria and Ghana.

The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) examined a removal flight from the UK to Sri Lanka in 2012.

“In the CPT’s opinion, such operations entail a manifest risk of inhuman and degrading treatment (during preparations for the deportation, during the actual flight or when the deportation is aborted).” [4]

The CPT’s report on this removal flight to Sri Lanka describes how “a tentative list of persons to be deported (some 120 possible candidates) is drawn up by the UKBA some six weeks before the removal date”. Four days prior to the flight only 51 names were still on the flight manifest, and only 28 people finally left the UK on the flight.

The Home Office routinely overbooks removal charter flights to ensure they leave the UK full in the event of last minute injunctions, despite sustained criticism of overbooking by HM Inspectorate of Prisons and the Home Affairs Select Committee. This means that someone in detention may be prepared for removal and taken to the airport, but not taken on board the plane and later returned to detention. This is highly distressing and traumatic.

People who physically resist enforced removal or cause disruption on a plane before take-off may be taken out of the process or off the plane for the Home Office to attempt removal on another occasion. The Home Office describes this as a ‘failed removal’.

Resisting removal will influence risk assessments for the use of restraints during future removal attempts, and are used by the Home Office to oppose applications for release from detention.

Escorts

The removal escorting process is outsourced by the Home Office to private contractors, who are responsible for ensuring that the person being removed or deported gets on board the plane and, where deemed appropriate, is subject to control and restraint techniques during boarding and the flight itself.

In 2012 information provided by the Home Office to the Home Affairs Select Committee showed that for the period 2008 to end June 2011 over two thirds of people detained and then removed from the UK were escorted to the airport but not on the flight. Under one third were also escorted during the flight because they were unwilling to leave voluntarily, were vulnerable in some way, or were on a Home Office charter flight. In 12% of individual cases where overseas escorts were present on the flight, or about one in every eight people removed this way, restraint or force was used by escorts on the person at some point.

Table: Percentage of individual removals where escorts used on the flight and where restraint used on removal

Source: Home Office for Home Affairs Select Committee

Restraints and the use of force

Immigration detention exists as a means of coercive control over people who the UK government wants to remove. It should come as no surprise therefore - upsetting as it is - that the Home Office and its subcontractors are allowed to use force to remove people from the UK. Indeed, this is necessary for it to perform its function. There are however limitations on the use of force and it has come under substantial criticism over the years.

“Any use of force must be necessary, reasonable and proportionate, and only using approved techniques” [5].

The Home Office Detention Service Order (DSO) on Use of Restraint for Escorted Moves also sets out the procedures for the use of handcuffs, leg restraints, and the waist restraint belt on people detained under escort. Equipment used must be approved by the Home Office, and should only be deployed using approved techniques.

Outside of this DSO, the approved methods used for control and restraint are not a matter of public record, and there are longstanding concerns about the accountability and conduct of private security companies who carry out escorting work on behalf of the Home Office. Just some of these concerns are:

• The normalisation of the use of force within the context of immigration removal.

• Inadequate management of the use of force, including accounting for the use of force by means of recording the reasons for the use of force in individual cases.

• Numerous allegations of ill treatment during the enforced removal process, but inadequate systems for monitoring, investigating, and complaining about the use of force and restraints during removals, and abusive behaviour by overseas escort staff.

These same mechanical restraints and techniques may also be used by escorting staff when people in detention are being taken to court hearings or external medical appointments, or during in-country journeys between detention facilities. Shockingly, the Home Office is allowed to use force to escort and remove children and pregnant women, in exceptional circumstances.

Medical Justice research into damage sustained at the hands of Home Office escorts during removal found that:

“The most common form of injury recorded resulted from inappropriate use of handcuffing, including swelling and cuts to the wrist, sometimes leading to long lasting nerve damage. Other injuries included bruising and swelling to the face and fractures to the wrists, ribs or ankles. Often psychological consequences resulted, such as the onset or exacerbation of post-traumatic stress disorder (PTSD), panic attacks, suicidal feelings and depression.” [6]

The use of restraint techniques during a removal flight led to the unlawful killing on 12 October 2010 of Jimmy Mubenga, an Angolan father of four who had been living in the UK for many years. His death prompted the Home Affairs Committee to inquire into the rules governing enforced removals from the UK, and the role of the Home Office in overseeing its escort contractors.

This led to changes in the Use of Force Training Manual in 2015 and the removal of the technique whereby detained people are handcuffed with their hands secured behind their back whilst seated creating a risk of positional asphyxia (whereby a person’s ability to breathe is impeded because of the way they are being restrained).

However, the Brook House Inquiry heard evidence of continued use of this practice alongside evidence of unauthorised and highly dangerous techniques being used on several occasions during the relevant period in Brook House IRC. More broadly, the Brook House Inquiry report set out serious concerns with the use of force stating that:

• The process of monitoring and reviewing the use of force was completely ineffectual

• Routine and quick use of force in response to incidents of self-harm

• The use of force against people who were mentally unwell

• An unusually high number of instances

• A lack of management supervision during use of force

This led to a number of recommendations from the Brook House Inquiry Chair for the Home Office to review Use of Force procedures, as a matter of urgency. In response a new Detention Service Order for the Use of Force is in progress from the Home Office - it is yet to be seen if there will be further developments under the Labour government.

1. https://assets.publishing.service.gov.uk/media/5fec9ec88fa8f56afb229735/Returns_by_UK_Letter.pdf

2. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/524505/DSO_01-2016_Medical_Information_Sharing.pdf

3. https://www.gov.uk/government/publications/government-response-to-the-brook-house-inquiry-report/government-response-to-the-public-inquiry-into-brook-house-immigration-removal-centre-accessible

4. Council of Europe, (2013), Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 22 to 24 October 2012. Available at http://www.cpt.coe.int/documents/gbr/2013-14-inf-eng.htm#_Toc343007385

5. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/543806/DSO_07-2016_Use_of_Restraints.pdf

6. Medical Justice, (2008), Outsourcing abuse: The use and misuse of state-sanctioned force during the detention and removal of asylum seekers. Available at http://www.medicaljustice.org.uk/medical-justice-challenges-the-detention-of-victims-of-torture-in-the-high-court/

Share Information

Visitors can guide people in detention on where to seek information and advice on applying for bail, including signposting to the BID Self-help guide.

Whilst visitors should make sure they do not cross over the line into giving immigration legal advice, they can provide information on bail, encourage people to ask about bail at a DDAS appointment, take a copy of BID's self-help to the person you are visiting, help them to complete the fact finding section and make sure they understand the information in the guide. Only immigration solicitors and Level 3 accredited OISC immigration advisors are allowed to do work on applications for immigration bail before the tribunal, while Level 2 OISC advisors on tribunal bail may make applications for TA/TR and CIO bail. See Give Information.

Visitors can also share the BID leaflet on what financial support - if available - they can get on release from the Home Office, as this is dependent on the method by which they are released from detention.

Signpost

Visitors can signpost to the BID bail helpline, online resources, bail workshops and legal clinics in IRCs.

Individuals in detention who at some point instructed a private solicitor, possibly because they had not realised that they may be eligible for legal aid, may go for months without a bail application or any other attention to the fact of their detention, simply because they can’t afford it. Under these circumstances, arguably, they no longer have a legal representative because they cannot afford to pay for work to be done. It may be appropriate for a visitor to signpost anyone in this position towards both the Detention Duty Advice Scheme, and Bail for Immigration Detainees.

Emotional support

Visitors play a vital role by providing emotional support to people in detention. The process of applying for bail, finding a lawyer and waiting for a decision can be difficult. In particular, attending court, whether in person or via video link, is a stressful experience, often aggravated by long periods in detention and previous failures to get release on bail. Visitors can be there as an ally during this time, making sure that people know what to expect and talking through how they can emotionally prepare for this process. Visitors have also been known to attend court hearings of people they visit.

Visitors will need to strike the correct balance between encouraging and supporting someone in detention to make regular applications for release, and acknowledging the awful feelings that another refusal can produce and which can act as a powerful disincentive to try again. In their research into the mental health implications of detention at Brook House IRC, a visitor with Gatwick Detainee Welfare Group described how the person they visited:

“...couldn’t go for bail because it would be too awful to be refused. You don’t want to ask because you then contemplate being free, and I think it’s awful to go to court and be told ‘no’, I think that really hurts people”. [1]

Despite this and while the immigration bail process is rightly characterised as something of a lottery, and the barriers in the way of release can be substantial, people do get released from detention. There are fair and considerate immigration judges whose starting point is a presumption of liberty and who do not wish to rubber-stamp lengthy periods of detention.

Assist with Accommodation

Visitors can make people in detention aware of their accommodation options and where they can find the relevant forms to apply for Home Office accommodation.

If a Home Office accommodation application is taking a long time, you can encourage the person you are visiting to ask their solicitor to take steps. Those who face extreme delays in getting Home Office bail accommodation should be referred to a public law solicitor, preferably one with a housing or community care contract as well.

With permission, visitors could call the Home Office to check the reason for a delay in granting support, but be careful not to make representations on behalf of the person in relation to their substantive case or their detention unless you are qualified or accredited to do so.

Migrant Help can also be contacted to request urgent emergency section 98 accommodation in order to avoid destitution.

Assisting on release

When someone is due to arrive late at night at their accommodation, visitors can help by informing the accommodation manager on site of a late arrival. Visitors can also make sure that people know that they should be released from detention with their property and with a summary of their medical notes.

Some visitor groups also provide financial support for travel costs to accommodation or you can support by applying to other local organisations for emergency grants.

1. Gatwick Detainee Welfare Group, (2012), ‘A prison in the mind: the mental health implications of detention in Brook House IRC’. http://www.gdwg.org.uk/downloads/gdwg-prisoninthemind.pdf