Please note that this information has not been updated since 2017. The system has changed since then and this information is pending update.
This is one of a series of advice sheets designed by Greater Manchester Immigration Aid Unit for people who have claimed asylum and want to know more about their rights. We understand that facing the possibility of detention is very frightening. This advice sheet is written to help you understand the legal situation you may be in together with some practical tips about what you can do if you think you are at risk of being detained.
Summary of legal terms used in this advice sheet:
- Leave to Enter is permission to enter the UK
- Leave to Remain is permission to stay in the UK
- Dallas Court is the centre where people who are claiming asylum in Greater Manchester have to sign on
- Deportation or Removal is when someone is returned to their home country
Who can be detained under Immigration Act powers?
- People who have just arrived in the UK and who are waiting for an examination by an immigration officer to decide whether or not they can be granted admission to the UK.
- People who have entered the UK illegally (for example, in the back of a lorry or using false documents), who are waiting for a decision as to whether they will be granted leave to enter, and who are waiting for removal if leave to enter is refused. Many people claiming asylum will fall within this category.
- People who have overstayed their limited leave to remain, or who have breached conditions attached to their leave to remain, and who are waiting for a decision about whether they are to be removed from the UK.
- People against whom the United Kingdom Visas and Immigration (UKVI) is taking deportation action. Most people in this position will be foreign national prisoners who have completed their criminal sentence.
- If someone does not fall within one of the above categories their detention will be unlawful.
Who cannot be detained under Immigration Act powers?
- People who cannot be detained under Immigration Act powers are:
- British citizens
- People with indefinite leave to remain
- People with limited leave to remain who have not breached the conditions attached to their leave to remain
Who is likely to be detained?
- Just because someone falls within one of the categories of people who can be detained, they will not automatically be detained.
- Where there is a power to detain, there is also a corresponding power to grant “temporary admission”.
- Temporary admission (also known as temporary release) is a status which allows a person to be lawfully at large in the UK without them being granted leave to remain.
- Most people who are claiming asylum are given temporary admission while a decision is made on their case. People can spend years on temporary admission.
- Refused asylum seekers from countries which UKVI does not send many people back to will often remain on temporary admission until such time as UKVI contemplates removal action.
- There are usually conditions attached to temporary admission including, for example, having to report to UKVI (at Dallas Court) weekly or monthly, and to live at specified address.
- UKVI has policies about which of the people in the above categories will be detained. This policy is contained in the Enforcement Instructions and Guidance, which can be found on the policy and law section of the UKBA website – www.ukba.homeoffice.gov.uk
UKVI policy says that there is a presumption in favour of liberty, but that detention will be justified in the following circumstances. These are:
- Where there are reasonable grounds to believe that a person will fail to keep to the terms of temporary admission, for example, if they have a history of absconding or using deception
- Where removal from the UK is imminent
- Where a person has just arrived in the UK, for a short period, to clarify their identity and nationality
- Experience also suggests that foreign national prisoners facing deportation action are almost invariably detained at the end of their criminal sentences.
On the other hand, the following people should not normally be detained:
- People who have been tortured, where there is independent evidence of torture
- Families with young children, unless removal is truly imminent
- Unaccompanied asylum seeking children, or age dispute cases unless the person’s appearance very strongly suggests that they are an adult
- If detention is not in accordance with UKVI policy, then it is unlawful.
Getting people out of detention
- If it is contended that detention is unlawful, then the way to get a person out of detention is to bring a judicial review/writ of habeas corpus. This is technical and is likely to need specialist legal advice, and is beyond the scope of this document.
- If detention is not unlawful, then a person should first apply to UKVI to be released on temporary admission, and if this is refused then apply to the First Tier Tribunal (Immigration and Asylum Chamber) for bail. Applications to UKVI for temporary admission are fairly unlikely to be successful as, after all, you are asking UKVI to change its mind.