As the House of Common’s second reading of the Illegal Migration Bill takes place today, this post looks at the detention provisions in clauses 11-14 and what they mean for individuals arriving in the UK. You can read Colin’s analysis of the Bill in full, here.

The current legal position

Existing legislation provides very broad statutory powers to detain migrants, but the courts have held that these are subject to implied limitations. In a series of cases dating back to 1983, the courts have developed the Hardial Singh principles which, among other things, require the court to decide for itself whether a given period of detention is reasonable. The courts have also held that the Home Office must comply with its detention policies, in particular its Adults at Risk policy, which has statutory force under section 59 of the Immigration Act 2016. It is designed to ensure that people who are particularly vulnerable to being harmed by immigration detention are either not detained at all or the period they are detained is minimised. The recent report of the Independent Chief Inspector of Borders and Immigration shows that there remain major problems with compliance with these policies.

Subject to limited exceptions, there is no overall time limit on how long people can be detained. The Immigration Act 2014 introduced limits on the time (maximum seven days) and the circumstances in which certain groups can be detained: unaccompanied children, pregnant women, and families. These provisions have very significantly reduced the detention of these groups, for whom it is clearly inappropriate and, in many cases, will breach international human rights standards.

People in immigration detention can challenge their detention by (a) applying for bail from the Home Office; (b) applying for bail from the First-tier Tribunal Immigration and Asylum Chamber; (c) applying to the High Court for judicial review (because their detention breaches the Hardial Singh principles and/or the Home Office’s detention policies); or (d) apply to the High Court for a writ of habeas corpus. People who have been detained can bring claims for damages on the same grounds as (c) and under the Human Rights Act 1998.

Clause 11

Clause 11(2) and 11(6) introduce new discretionary powers to detain people who are or may be subject to the removal duty in clause 2. Existing powers of detention could be used for this purpose (for example, paragraph 16(2) to Schedule 2 of the Immigration Act 1971) and new powers would not be required were it not for the government’s wish to restrict the scope for legal challenges in respect of the initial 28 day period of detention.

Clause 11(2) provides much broader discretion as to where individuals are detained. Presently, the list of places where people can be detained for immigration purposes are set out in the Immigration (Places of Detention) Direction 2021. There are further restrictions in the Short-term Holding Facility Rules. This means, for example, there is a maximum 7-day time limit for detention in police cells and short-term holding facilities. The new provision would instead allow detention anywhere the Home Secretary considers appropriate.

Clause 11 introduces new powers to detain family members of people who are or may be a person subject to the removal duty. This includes unaccompanied minors pending a decision on whether to grant them leave to remain. They would not be subject to the seven-day time limit and other protections in the 2014 Act. Clause 11(4) provides that there is no time limit on the detention of families in pre-departure accommodation for people detained under the new powers, which represents a very significant expansion of the powers to detain families with children, which significantly reduced following the changes made by the 2014 Act.

Clause 11(11) is also intended to mean that the restrictions on the detention of pregnant women in the 2014 Act do not apply to people detained under this legislation.

The effect is to provide the Home Secretary with wide discretionary powers to decide where people arriving by small boat are detained and for how long. This would effectively place the indefinite detention of children or other vulnerable groups in camps such as Manston on a statutory basis.

Clause 12

As the Explanatory Notes make clear, clause 12 is intended to change the long-established position in case law that it is for the court to decide for itself whether the detention of a person for the purposes of removal is for a reasonable period. This change applies across the board to all detention powers, not just people detained under new powers introduced by this legislation, from people facing deportation to those whose visas have expired.

Clause 12 creates specific statutory powers to detain where the Home Secretary considers that removal is no longer possible within a reasonable period “for such further period as, in the opinion of the [Home secretary], is reasonably necessary to enable such arrangements to be made for the person’s release as the [Home secretary] considers appropriate”. This appears to confer more discretion than the limited ‘grace period’ of up to five weeks for making such arrangements held to be lawful by the courts.

The intention appears to be to restrict the role of the courts in providing oversight of the exercise of the statutory immigration detention powers. The Home Office already has very wide powers of detention with no overall time limit and limited oversight by the courts. The purpose of immigration detention is to facilitate removal and there is no evidence that these changes are necessary to improve the Home Office’s performance with regard to removals.

If they achieve their intended purpose, these changes will mean the Home Office may be able to continue to detain people where for example they are not pursuing removal diligently. It is another example of the Home Office attempting to insulate itself from scrutiny by the courts.

The government’s aims in enacting clause 12 also conflict with article 5 of the European Convention on Human Rights (see R (Lumba) v SSHD [2011] UKSC 12 at §30; the Hardial Singh provisions only do what article 5 requires). As Lord Chief Justice Thomas held in SSHD v Fardous [2015] EWCA Civ 931“[i]t is this objective approach of the court which reviews the evidence available at the time that removes any question that the period of detention can be viewed as arbitrary in terms of article 5 of the European Convention on Human Rights”.

These changes would lead to an expansion of the power of administrative detention beyond anything previously seen, exercisable at the whim of a civil servant, with minimal judicial oversight. The combination of the attempts to weaken or remove basic common law protections at the same time as removing basic human rights protections is very troubling.

Clause 13

Clause 13 would mean that the First-tier Tribunal is unable to grant bail to a person detained under the new powers in clause 11 for the first 28 days they are detained.

In addition, there is an attempt to severely restrict the jurisdiction of the High Court to review the detention of people held under the new powers for the first 28 days. Currently, they can challenge their detention in judicial review proceedings on the basis it breaches the Hardial Singh principles or if it breaches the Home Office’s detention policies. This clause purports to restrict the High Court’s jurisdiction in judicial review proceedings to situations where the Home Office acts in bad faith or “in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”. The right to apply for a writ of habeas corpus is preserved.

But it is difficult to see how the writ of habeas corpus can assist. Habeas corpus is traditionally a remedy in situations where this is no detention power; it does not generally assist where there is a power that is being used unlawfully.

The intention is to make it very difficult for people arriving by small boat to secure their release from detention for the first 28 days where detention is unlawful. It is a further example of the Home Office attempting to insulate decisions from scrutiny by the courts.

Although the Explanatory Notes suggest there will still be a right to claim damages this is not understood: either the ouster clause achieves its purpose in restricting the grounds on which detention can be challenged or it doesn’t.

Clause 14

Clause 14 provides that the duty to consult with the Independent Family Returns Panel does not apply to decisions to remove or detain people under the clause 2 duty. The panel is designed to ensure that the best interests of children are properly considered when decisions to remove and detain families with children are considered. The removal of this safeguard increases the risk of these decisions being made on an arbitrary basis and without adequate regard to the best interests of children.

Expansion of unprecedented powers and the abandonment of hard-fought protections

The existing statutory immigration detention powers have been described as a “dramatic constitutional innovation” “unprecedented in peacetime” (SSHD v Pankina [2010] EWCA Civ 719). Clauses 11-14 expand these powers still further and make it harder for people to challenge their use in court. Several hard-fought protections enacted in the past decade are swept aside by clauses 11-14, notably the restrictions on the detention of unaccompanied minors, pregnant women and families.

It remains to be seen whether the courts decide that these clauses achieve what the government hopes. Irrespective of the disapplication of the interpretation duty in section 3 of the Human Rights Act 1998, it is well-established that statutory provisions concerning liberty and which restrict access to the courts fall to be strictly construed.

To make use of these expanded powers, the government would need to both significantly increase detention capacity and the number of removals. In the absence of a returns agreement with the EU, the latter seems unlikely in the medium term. It seems likely that we will see a return to more detention, both in terms of the number of detention places and the length of time people are held.

One thing we can be sure about is that these provisions will lead to a significant amount of litigation.

This post was co-authored by Greg Ó Ceallaigh, Barrister at ​Garden Court Chambers.