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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 The EIG has now been withdrawn.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:
The Home Office must intend to remove or deport the person and can only use the power to detain for that purpose;
The person may only be detained for a period that is reasonable in all the circumstances;
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;
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.
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
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 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.
Examples of:
Equivalent to:
Detention Centre Rules
Short-Term Holding Facility Rules
Rule 28 sets out that people detained should receive as many visits as they would like (with some limitations).
Rule 25.
Rule 34 sets out that there should be Medical examination with a registered medical practitioner on admission (within 24 hours) and thereafter.
Rule 30.
Rule 35 Special illnesses and conditions (including torture claims) sets out the circumstances under which “the medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention” and “the manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay”.
Rule 32.
Rule 40 and Rule 42: sets out the arrangements for the use of removal from association and segregation of people detained. They require that the Independent Monitoring Board (IMB), medical practitioner and manager of religious affairs to be notified without delay and visit within 24 hours of being placed in segregation.
Rule 35.
Rule 41 on Use of Force sets out that force should not be used unnecessarily and where it is used it should be recorded and as limited as possible.
Rule 36.
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.
Relevant policies you might find useful are included in the Overview and Sources section of this chapter. The important Adults at risk in immigration detention policy, first published in 2016, is kept here.
These are other sets of Home Office policies, some of which are detention-related, available at www.gov.uk.
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:
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.
The stock must include toiletries, tobacco products, phone cards, snacks, drinks, writing materials and postage stamps.
In contracted out centres the contract monitor must approve prices charged.
The Centre must display clear details of the prices of goods for the information of detainees.
The Centre must advise detainees that they are able to suggest items for purchase.
Gross profits generated through shop sales must be made available for the benefit of detainees.
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.
The Centre must operate systems and controls to ensure propriety and to facilitate audit processes.
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
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.
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.
Recommendations of the Stephen Shaw Report (2016) review into the welfare of in detention of vulnerable persons [1]
Recommendation 9: I recommend that there should be a presumption against detention for victims of rape and other sexual or gender-based violence. (For the avoidance of doubt, I include victims of FGM as coming within this definition.)
Recommendation 11: I recommend that the words ‘which cannot be satisfactorily managed in detention’ are removed from the section of the EIG that covers those suffering from serious mental illness.
Recommendation 16: I recommend that a further clause should be added to the list in paragraph 55.10 of the EIG to reflect the dynamic nature of vulnerability and thus encompass ‘persons otherwise identified as being sufficiently vulnerable that their continued detention would be injurious to their welfare’.
Recommendation 21: I recommend that the Home Office immediately consider an alternative to the current rule 35 mechanism. This should include whether doctors independent of the IRC system (for example, Forensic Medical Examiners) would be more appropriate to conduct the assessments as well as the training implications.
Recommendation 22: I further recommend that rule 35 (or its replacement) should apply to those detainees held in prisons as well as those in IRCs.
Recommendations of the Stephen Shaw Report (2018) follow up report on the Adults at Risk Policy [2]
Recommendation 11: The current Adults at Risk policy should be amended. Detention of anyone at AAR Level 3 should be subject to showing ‘exceptional circumstances’.
Recommendation 12: Consideration should be given to AAR Level 2 being sub-divided and, if adopted, the presumption against detention for those in the upper division should be strengthened. The Home Office should consider the merits of the UNHCR Vulnerability Screening Tool.
Recommendation 13: The Home Office should no longer detain any adults over the age of 70 except in ‘exceptional circumstances’.
Recommendation 14: The Independent Chief Inspector of Borders and Immigration should be invited to report annually to the Home Secretary on the working of the Adults at Risk process.
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]:
Evidence
Immigration Factors
Level one: A self declaration of being an adult at risk (afforded limited weight).
The individual will be suitable for consideration for detention where one of the following applies:
Date of removal possible within a reasonable timescale.
Any public protection issues are identified.
Indicators of non-compliance with immigration law.
Level two: Professional evidence (for example from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is (or may be) an adult at risk (afforded greater weight.)
Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.
The individual will be suitable for consideration for detention where one of the following applies:
the date of removal is fixed, or can be fixed quickly, and is within a reasonable timescale and the individual has failed to comply with reasonable voluntary return opportunities.
there are public protection concerns (e.g. previous conviction).
indicators of non-compliance which suggest that the individual is highly likely not to be removable unless detained. Less compelling evidence of non-compliance should be taken into account if there are also public protection issues.
Level three: Professional evidence (for example from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm (should be afforded significant weight.) For example, evidence that a period of detention or continued detention will increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk should be afforded significant weight.
Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.
The individual will be suitable for consideration for detention where one of the following applies:
removal has been set for a date in the immediate future, there are no barriers to removal, and escorts and any other appropriate arrangements are (or will be) in place to ensure the safe management of the individual’s return and the individual has not complied with voluntary or ensured return.
the individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence, or there is a serious relevant national security issue or the individual presents a current public protection concern.
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.
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.
Future watch: Look out for changes to the Adults at Risk policy and whether the Labour Government will reverse the weakening of this policy. This is currently under review, expected to be complete in Spring 2025.
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].
R (B) v Merton [2003] EWHC 1689 (Admin)
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
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
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).
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.
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.
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.
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.
Resource Tip
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.
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.
The Detention Centre Rules (2001)
Short Term Holding Facility Rules (2018)
Statutory instrument. Available at: https://www.legislation.gov.uk/uksi/2018/409/contents/made
Home Office, (2002), Operating Standards manual for Immigration Service Removal Centres
Detention General Instructions
Guidance and information for Home Office staff and others dealing with matters relating to immigration detention. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1114683/Detention_General_instructions.pdf
Detention Service Orders (DSOs)
The Prison Rules (1999), Northern Ireland Prison Service Prison Rules (2010), & Scottish Prison Rules (2011)
The Prison Rules (1999)[England & Wales]
Prison Service Instructions & Probation Orders
“Foreign National” specific PSIs:
Early Removal Scheme for Foreign Nationals – Changes to Referral Process (01/2007)
The Early Removal Scheme and Release of Foreign National Prisoners (04/2013)
Release on licence for foreign national prisoners pending deportation (29/2014)
Provision of Offender Risk Information To Home Office Immigration Enforcement Regarding Foreign National Offenders Who Are Being Considered For Deportation (34/2014)
The Allocation of prisoners liable to deportation or removal from the United Kingdom (01/2015)
Immigration and Foreign Nationals in Prison (Amended Version) (21/2007)
Immigration, Repatriation and Removal Services (52/2011)
Eligibility for Open Conditions and for ROTL of Prisoners Subject to Deportation Proceedings (25/2014)
The Allocation of prisoners liable to deportation or removal from the United Kingdom (01/2015)
Useful Home Office Policies
Adults at risk in immigration detention:
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/
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
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
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 .
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].
Statutory instrument. Available at:
Set of standards for IRC management contractors. Available at:
Procedural instructions given to Home Office and contractor staff working in detention centres. Available at
Scottish Prison Rules and instructions
Northern Ireland Prison Service, Prison Rules
These can be found via HM Prison Service pages on , which currently take you to pages on the archived Ministry of Justice website.
Identifying people at risk (enforcement):
Adults at risk: detention of potential or confirmed victims of modern slavery:
Statutory Guidance:
Home Office Guidance for immigration enforcement officers
Identity management (Enforcement):
Non-compliance and absconder process:
Family separations: Guidance and the operational process for the separation of family members who no longer have any right to remain in the UK and are liable to be removed:
Family returns process (FRP):
EU, other EEA, Swiss citizens, and their family members: consideration of administrative removal action:
Cancellation and Curtailment of permission:
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.
AVID and our members are regularly consulted on Detention Service Orders (DSOs) when they are being updated by the Home Office. Visitors can support by responding to calls for input, identifying recurring issues, trends and recommendations.
You should 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.
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.
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.