Immigration detention is the administrative measure depriving a foreign national of liberty with a view to removal or to the processing of an application. It is not a punishment and may be imposed only where a less intrusive measure will not suffice.
Legal basis
Article 59 of the Aliens Act 2000 governs detention with a view to removal, Article 59a Dublin detention and Article 59b border detention in the asylum procedure. Return Directive 2008/115/EC sets the framework: detention is permitted only where there is a risk of absconding or where the person avoids or hampers preparation for return, and it may last no longer than necessary. The maximum is six months, extendable to eighteen months in defined cases. There must be a prospect of removal within a reasonable time; where that is absent, detention must be lifted. Article 94 provides for an appeal, which is lodged automatically if the person takes no action, with a hearing within two weeks.
How it works in practice
The court reviews both the grounds and diligence: the authorities must demonstrably and regularly work towards removal, for instance through departure interviews and applications for travel documents to the authorities of the country of origin. Where that is absent, detention is lifted and compensation is sometimes awarded for each day of unlawful detention. Requirements are stricter for a second or subsequent detention.
Where it goes wrong
The grounds are listed as standard without being tailored to the individual, a recurring point in the case law. A second problem is the absence of any assessment of lighter measures, such as a reporting duty or security. Third, detention continues while there is in fact no prospect of removal.
Related terms
Detention usually follows a return decision and connects to the entry ban.
Has a family member been detained? Our immigration law specialists conduct the appeal and test diligence.
