UK immigration detention is mainly used when exercising immigration control, rather than to punish you for committing a crime. You may be detained for a specific immigration-related purpose.

For example, detention may be used:

• to arrange or carry out your removal from the UK; 

• to establish your identity or immigration status; 

• in some circumstances, because there is a concern that you may not comply with immigration bail conditions. 

The Home Office guidance says detention must be connected to a lawful statutory purpose and that there is a presumption in favour of immigration bail and alternatives to detention where possible.

What is immigration detention?

UK government uses detention to lock people in detention centres while their: 

• asylum claim (a request made to the UK government for international protection because they cannot safely return to their own country) is being considered; or 

• removal/deportation is being arranged. 

Detention means physically keeping you in detention centres while the Home Office decides what to do next. Although there is no fixed time limit on detention (how long you should be kept in detention) in UK immigration law, detention must be lawful and reasonable.

You can apply for immigration bail or challenge your detention if it is unlawful.

Apply for an immigration bail

If you are detained or liable to detention, you can apply for an immigration detention bail. You may be granted immigration bail by the Secretary of State (UK) or an independent judge at the First-tier Tribunal (the tribunal holds no power to grant you an immigration bail where you are not detained but are liable to detention; however, if, after being detained, you wish to be granted bail by the Tribunal, you must submit an application in writing to the First-tier Tribunal). If you are released on immigration bail, subject to certain conditions (stated below), you will be permitted to live in the community in the UK (for example, at your own accommodation or with family or friends) instead of being kept in an IRC (Immigration Removal Centre) or a prison, while the Home Office has not yet made a final decision on your immigration application or claim.

An immigration detention bail may come with conditions, such as:

• reporting regularly to the Home Office;

• living at a specified address;

• attending immigration or court appointments;

• electronic monitoring; or

• restrictions on work or study.

Legal options to challenge immigration detention

You can potentially use judicial review to challenge the lawfulness of a decision to detain or continued detention. Continued detention means keeping you in immigration detention after the initial detention period has passed.

It generally concerns challenging a public body’s action on the basis that the decision or continued detention is unlawful, rather than asking the court simply to decide whether the underlying immigration decision was right.

However, to challenge the lawfulness of immigration detention, the appropriate court for making a judicial review application is generally the Administrative Court, rather than the Upper Tribunal. Administrative Court is a specialist court within the King’s Bench Division of the High Court of Justice.

If the issue is whether your continued immigration detention is lawful, the judicial review is normally brought in the Administrative Court, rather than the Upper Tribunal (Immigration and Asylum Chamber). When going for a judicial review, you (or your legal representative) will normally need evidence showing why continued detention is unlawful.

A judicial review of detention does not normally ask whether your immigration decision was correct. It asks whether the Home Office is legally entitled to continue detaining you.

For example:

The Home Office is detaining you pending removal, but there is now a serious barrier to removal and no realistic prospect of removal within a reasonable period. You may argue that continuing detention has become unlawful.

A key principle comes from the Hardial Singh case. Home Office guidance states that immigration detention may only continue for as long as is reasonably necessary for the relevant immigration purpose, such as examination, decision-making or removal. Detention must also be reviewed regularly.

If you have a successful judicial review of immigration detention, you may have the following results:

• The court may decide that your continued detention in the UK is unlawful and, if so, may order that you be released.

• A declaration (a formal statement by the court) that your detention was unlawful and, if so, you may be able to claim financial compensation (damages) for the unlawful deprivation of your liberty. However, damages are not automatic in every successful judicial review. The availability and amount depend on the circumstances of the case and the legal basis of the claim.

• The court may order the Home Office to pay partial or full legal costs that you paid, subject to the circumstances and the court's order.

Importantly, a successful judicial review does not automatically produce all outcomes mentioned above. The remedy depends on what the court finds unlawful and what relief is appropriate in the individual case.

Detention while waiting for deportation or removal

The Home Office may detain you when it intends to remove you from the UK or deport you. For example, you may receive a deportation order and then be detained while arrangements are made for your removal.

You can challenge both the decision requiring you to leave the UK and the decision to keep you detained. A challenge to one does not automatically resolve the other. This means you could potentially challenge the deportation decision itself if it is unlawful because the Home Office failed to properly consider a relevant legal issue, and even if the deportation decision is valid, detention has continued for too long, and there is no realistic prospect of your removal within a reasonable period.

You may have grounds to challenge the underlying decision of deportation requiring you to leave the UK. For example, depending on the circumstances, you might challenge a deportation decision through an appeal or judicial review, where judicial review is the appropriate route.

How can Visa and Migration Ltd. Help?

Judicial review is a complex and urgent process. If you believe the detention is unlawful, you should take an expert’s advice before challenging the decision through judicial review.

Are you in detention or at risk of being detained and wish to apply for immigration bail, or challenge the decision because you feel you are being detained unlawfully? We can help you with the best course of action. 

Our immigration experts can guide you on whether judicial review is appropriate and, where we are able to act, support the preparation and conduct of the challenge. The outcome of any court proceedings will depend on the facts, evidence and applicable law.

For expert advice and queries related to detention, immigration bail, and judicial review to challenge your detention, you can call us at +44 (0)20 3411 1261 or write to info@visaandmigration.com