There are no special grounds in legislation for the detention of asylum seekers. They may be detained on the same legal basis as others who are subject to immigration control. There is a power to detain pending a decision as to whether to grant leave to enter or remain; pending a decision as to whether to remove; and pending removal. This power may only be exercised if there is a policy reason to detain this person, and if they have not already been detained for an unreasonable length of time. The policy reasons are that:
- The person is likely to abscond if released;
- There is currently insufficient reliable information to decide whether to release them (for instance their identity cannot be verified);
- Removal from the United Kingdom is imminent;
- The person needs to be detained whilst alternative arrangements are made for their care;
- Release is not considered conducive to the public good;
- The application may be decided quickly using the fast track procedures.
Whether a person is likely to abscond is decided on the basis of such factors as whether they have absconded before, whether they have a criminal record, whether they have significant relationships in the UK, whether they have reported regularly to the Home Office if required to do so.
Following the Court of Justice of the European Union (CJEU)’s ruling in Al Chodor, which required Member States to lay down objective criteria for the interpretation of the ‘significant risk of absconding’ needed in order to impose detention pending a Dublin transfer, the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 were introduced. There is a list of eleven criteria to be considered; some are based on an applicant’s immigration history but the criteria include whether there are reasonable grounds to believe that the applicant is likely to fail to comply with any conditions attached to a grant of temporary admission or release or immigration bail; which is subject to interpretation. The regulations were unsuccessfully challenged in a judicial review. A challenge to the pre-Al Chodor policy ruled that the claimants had been unlawfully detained, as the Enforcement guidance had not been compatible with the Dublin Regulation, specifically Articles 28(2) and 2(n).
Most asylum seekers are not detained for long periods before their claim is decided, although the introduction of a non-residential short-term holding facility at the former military facility in Manston, Kent, resulted in many people being held for longer than allowed in law. The rapid deterioration in the system is illustrated in the difference between the report of the Prison’s Inspectorate visit in August 2022 and the evidence given to a parliamentary committee by the Borders Inspectorate in October 2022.
The initial processes of a case concerning the ‘removal window’ whereby individuals liable for removal or deportation receive notice with no specified date for removal was ruled unlawful.