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 before their claim is decided. However, detention in Dublin cases is more frequent. When a take charge or take back request has been accepted or deemed accepted by the prospective receiving country, the asylum seeker will usually be detained prior to removal.
The main development in jurisprudence was the final judgment in the case of applicants detained purely for the purpose of Dublin transfers, from the Supreme Court. On 27 November 2019 the Supreme Court unanimously rejected an appeal by the UK Home Office to overturn a landmark ruling from the Court of Appeal declaring the detention of asylum seekers while their cases were being assessed in the Dublin Procedure unlawful. The case concerns the pre-removal detention of five Iraqi and Afghan nationals during the Dublin procedure. Under the Dublin III regulation only people considered at “significant risk of absconding” can be detained and none of the five people in question were categorized as such by the UK Home Office admission. The ruling could potentially affect thousands of people unlawfully detained during the period between January 2014 when the Dublin III regulation came into force and March 2017 when the UK regulations were changed.
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.