Policy paper

Illegal Migration Bill: detention and bail factsheet

Updated 20 July 2023

What are we going to do?

The bill creates new detention powers to support the implementation of the duty on the Home Secretary to make arrangements to remove illegal migrants to their home country or a safe third country. The new powers will strengthen our ability to detain illegal migrants to establish whether the new duty to remove applies and to promptly remove those eligible from the UK.

The bill will also place two of the common law Hardial Singh principles governing all immigration detention powers on a statutory footing and will clarify that it is for the Home Secretary, rather than the Courts, to determine what is a reasonable time period to detain an individual for the specific statutory purposes (for example, to effect removal from the UK).

How are we going to do it?

The bill will create new detention powers specific to all migrants subject to the duty to remove being introduced in the Illegal Migration Bill. These new powers will not be time limited, however, in line with our other existing immigration detention powers, detention will be limited to a reasonable period of time.

The new detention powers will not be subject to the same statutory limitations as existing detention powers, to ensure the power can apply more widely. This includes limits on the detention of pregnant women, the time and location of the detention of family groups and the duty to consult the Family Returns Panel in relation to the detention of accompanied children.

The bill will clarify the time period that the Secretary of State may detain individuals for, by placing two of the common law Hardial Singh principles on a statutory footing. The Hardial Singh principles were established in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB). This caselaw currently limits the Home Secretary’s detention powers, where it is used for the purpose of removal. The relevant principles provide that a person may only be detained for a period that is reasonable in all the circumstances and if, before the expiry of the reasonable period, it becomes apparent that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, the Home Secretary should not seek to continue the detention. The bill will make it clear that it is for the Home Secretary, rather than the Courts, to determine what constitutes a reasonable time period to detain an individual for the specific statutory purpose.

Finally, the bill will prevent the First-tier Tribunal from granting bail, where an individual is detained under the new statutory powers, for the first 28 days of detention; there will also be a restriction on someone challenging their detention during this period by way of judicial review. An individual will be able to apply to the Home Secretary for bail during this period, although that decision may not be challenged by way of judicial review during the first 28 days. It will also be open, at any time, for a detained person to seek their release through an application to the High Court for a writ of habeas corpus. There will also be no restriction on an individual’s ability to claim damages in relation to unlawful detention, for any time period, including in respect of the first 28 days of detention. Where someone is released on immigration bail, this will be subject to the existing bail conditions such as regular reporting to the Home Office, residing at a specific address or electronic monitoring where suitable in the individual case.

After 28 days, in deciding whether to grant immigration bail, the bill will require the First-tier Tribunal to take account of whether or not the Home Secretary is under a duty to make arrangements for the removal of the person from the UK in line with the provisions being introduced within the bill. The First-tier Tribunal must already consider a number of factors (set out in paragraph 3(2) of Schedule 10 to the Immigration Act 2016), for example the likelihood of the person failing to comply with a bail condition, when deciding whether to grant bail and what bail conditions to impose. The bill will add to this existing list of considerations so that a tribunal judge must also consider whether a person is liable for removal under the scheme.

Frequently asked questions

How long will people be held in detention?

• Those who are subject to the duty and meet the four conditions can be detained until their removal.
• Any detention period will always have to be reasonable when taking into account the individual circumstances of each person.
• We will aim to remove people as quickly as possible, and those in detention will be able to apply for First-tier Tribunal bail after 28 days, but may make an application to the High Court at any time for a writ of habeas corpus ordering their release.

Detention is inhumane. How can you keep people in detention that long?

• Our aim is to ensure people are not held in detention for longer than is absolutely necessary to effect their removal from the UK. The scheme is designed to be operated both quickly and fairly. Voluntary return will always be an option for all.
• We will aim to remove individuals as quickly as possible, but holding them in detention is necessary to make sure they are successfully removed under scheme.
• Without such detention powers, there is risk that those within the scheme will disappear into the community to frustrate their removal, especially as the bill introduces a clear duty to remove and clear restrictions on ever settling permanently in the UK.

Does this mean that you can now detain people indefinitely?

• No, detention under the duty will be either pending a decision that someone meets the conditions of the scheme/the duty applies, or for the purpose of removal. The bill provides, in line with the current common law position, that an individual may only be detained for a period that is reasonable, with reference to the specific statutory purpose for which they are detained.
• The bill also establishes that it is for the Home Secretary to consider what a reasonable period of detention is, rather than the courts making their own assessment.

Why are you creating new powers to detain unaccompanied children?

• The Secretary of State is not required to make arrangements to remove an unaccompanied child from the UK until they turn 18 years old, but there is a power to do so. As a matter of current policy this power will only be exercised in very limited circumstances ahead of them reaching adulthood, such as for the purposes of family reunion or where removal is to a safe country of origin.
• Where a decision is made to remove an unaccompanied child under 18, detention will be for the shortest possible time in appropriate detention facilities with relevant support provisions in place.

Does this mean that you’re getting rid of your detention safeguards and will be detaining vulnerable adults?

• No – decisions on the appropriateness of an individual’s detention will continue to be made on a case-by-case basis.
• Decisions on whether or not to detain individuals have never been predicated on absolute exclusions for any particular group.
• The adults at risk in immigration detention policy will continue to apply and will be updated.
• Individuals may also apply for bail to the Home Secretary at any time.

How many new detention spaces will be required? Will the necessary detention accommodation be available?

• We are increasing our detention capacity and already have plans in place to build two new Immigration Removal Centres.
• This includes developing a new immigration removal centre in Oxfordshire on the former site of Campsfield House, and a new immigration removal centre at Gosport, Hampshire, on the former site of Haslar. The plans for development of these new centres on former IRC sites were made public in June and September 2022 respectively.