Alternatives to detention

Alternatives to detention are permitted by legislation but not required. Permitted are:

• Electronic tagging;^[1]
• Regular reporting;^[2]
• Bail with sureties;^[3]
• Residence restrictions.^[4]

Guidelines say that detention should only be used as a last resort. However, no proof is required that alternatives are not effective. Residence restrictions is routinely applied to all asylum seekers, and bail will always include residence restrictions and for some, regular reporting. Breach of these conditions may result in detention. Electronic tagging is in frequent use mainly for ex-offenders and may be a bail condition. Numbers of asylum seekers tagged are not available. The guidance on Immigration Bail includes the process for referring detainees for automatic bail consideration, in most cases, four months after the person was first detained and every four months thereafter. ^[5]

An inquiry by the parliamentary Joint Committee on Human Rights carried out an inquiry into immigration detention and published evidence as it was submitted (oral and written), including evidence from the government.^[6] In evidence to the Committee the Immigration Minister stated that in the 10 months since the automatic bail policy was introduced 10% of automatic bail hearings resulted in the detainee being granted bail.^[7]

The Committee published its report on 7 February 2019 and made five main recommendations:^[8]

1. The decision to detain should not be made by the Home Office but should be made independently.
2. Introduce a 28-day time limit to end the trauma of indefinite detention.
3. Detainees should have better and more consistent access to legal aid to challenge their detention.
4. More needs to be done to identify vulnerable individuals and treat them appropriately.
5. The Home Office should improve the oversight and assurance mechanism in the immigration detention estate to ensure that any ill-treatment of abuse is found out immediately and action is taken. Concerns over the distressing effect of indeterminate detention.

The government responded in July 2019.^[9] The response highlighted progress in the areas of transparency of data, vulnerable people in detention and the introduction of a two-month auto referral for bail in February 2019. In 2021 the All Party Parliamentary Group on Detention published a report into ‘quasi detention which included those held in an Immigration Removal Centre as well as the former military barracks.^[10]

In September 2016, Detention Action published a report on community-based alternatives to detention, exploring their potential use in the immigration control context and calling for their further development.^[11] The Detention Forum has produced a guide to alternatives to detention.^[12]

In response to the second report by Stephen Shaw, former Prisons and Probation Ombudsman, on the detention of vulnerable people,^[13] the government announced that some specific projects (alternatives) would be developed in partnership with the voluntary sector.^[14] Details of the first of these was announced in December 2018.^[15] UNHCR is evaluating the pilots^[16] and published the first one in January 2022, looking at a project to avoid detaining women.^[17] The second and final report was published in 2023 and of the 84 people who participated, six were granted leave to remain and 52 others were advised that they may have grounds to stay in the UK. These are not necessarily asylum cases. One of the main issues highlighted in the report was the inaccessibility of legal aid and the problems this caused people in accessing rights they may be entitled to.[18]

^{[1] Section 36 AITOCA.}

^{[2] Para 21(2) Schedule 2 Immigration Act 1971.}

^{[3] Section 61 Schedule 10 Immigration Act 2016.}

^{[4] Para 21(2) Schedule 2 Immigration Act 1971.}

^{[5] Home Office, Immigration bail, November 2023, available at: https://bit.ly/2xxta19.}

^{[6] Minister of State for Immigration, ‘Use of immigration detention: The Government’s strategic approach’, 3 December 2018, available at: https://bit.ly/2DdzNc0.}

^{[7] Joint Committee on Human Rights, Oral evidence session, HC 1484, 5 December 2018, available at: https://bit.ly/2TjsfON.}

^{[8] Joint Committee on Human Rights, Immigration Detention Inquiry, 7 February 2019, available at: https://bit.ly/2HVfZyF.}

^{[9] Letter from the Minister of state for Immigration to the chair of the Joint Committee on Human Rights, 23 July 2019, available at: https://bit.ly/2O7PA1a.}

^{[10] APPG, Report of the Inquiry into Quasi-Detention, December 2021, available at: https://bit.ly/33E4F5E.}

^{[11] Detention Action, Without detention: Opportunities for alternatives, September 2016, available at: https://bit.ly/48rmVdK.}

^{[12] Detention Forum, Alternatives to detention: Frequently asked questions, July 2018, available at https://bit.ly/2pDYpmF.}

^{[13] Stephen Shaw, Welfare in detention of vulnerable people review: progress report, July 2018, available at: https://bit.ly/2JQVvmb.}

^{[14] Home Office, ‘Home Secretary statement on immigration detention and Shaw report’, 24 July 2018, available at: https://bit.ly/2uVZdGQ.}

^{[15] Home Office, ‘New pilot schemes to support migrants at risk of detention’, 3 December 2018, available at: https://bit.ly/2QQEj3X.}

^{[16] UNHCR, Terms of reference: Evaluation of UK Home Office Alternatives to Detention Community Engagement Pilot Series, October 2019, available at: https://bit.ly/36Dtvhp.}

^{[17] UNHCR, Evaluation of ‘Action Access’; an alternatives to detention pilot, 2022, available at: https://bit.ly/3BEmfDb.}

^{[18] UNHCR, Evaluation of the Refugee and Migrant Advice Service’s Alternative to detention pilot, 2023, available at: https://bit.ly/49KNkEp.}