Alternatives to detention are permitted by legislation but not required. Permitted are:
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 applicants, 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 applicants 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]
- The decision to detain should not be made by the Home Office but should be made independently.
- Introduce a 28-day time limit to end the trauma of indefinite detention.
- Detainees should have better and more consistent access to legal aid to challenge their detention.
- More needs to be done to identify vulnerable individuals and treat them appropriately.
- 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.
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.[9]
In response to the second report by Stephen Shaw, former Prisons and Probation Ombudsman, on the detention of vulnerable people,[10] the government announced that some specific projects looking at alternatives to detention would be developed in partnership with the voluntary sector.[11] Details of the first of these was announced in December 2018.[12] UNHCR evaluated the pilots[13] and published the first one in January 2022, looking at a project to avoid detaining women.[14] 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 were 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.[15]
[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 here.
[6] Minister of State for Immigration, ‘Use of immigration detention: The Government’s strategic approach’, 3 December 2018, available here.
[7] Joint Committee on Human Rights, Oral evidence session, HC 1484, 5 December 2018, available here.
[8] Joint Committee on Human Rights, Immigration Detention Inquiry, 7 February 2019, available here.
[9] APPG, Report of the Inquiry into Quasi-Detention, December 2021, available here.
[10] Stephen Shaw, Welfare in detention of vulnerable people review: progress report, July 2018, available here.
[11] Home Office, ‘Home Secretary statement on immigration detention and Shaw report’, 24 July 2018, available here.
[12] Home Office, ‘New pilot schemes to support migrants at risk of detention’, 3 December 2018, available here.
[13] UNHCR, Terms of reference: Evaluation of UK Home Office Alternatives to Detention Community Engagement Pilot Series, October 2019, available here.
[14] UNHCR, Evaluation of ‘Action Access’; an alternatives to detention pilot, 2022, available here.
[15] UNHCR, Evaluation of the Refugee and Migrant Advice Service’s Alternative to detention pilot, 2023, available here.