Individual migrants may be detained pending a decision on entry or removal, this is stated in section 62(1) of the Nationality Immigration and Asylum Act (2002). Section 62(2) states that where the Secretary of State is empowered to examine a persons claim and give or refuse leave to enter the person may be detained pending that decision or pending a removal decision or removal itself.

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Individual migrants may be detained pending a decision on entry or removal, this is stated in section 62(1) of the Nationality Immigration and Asylum Act (2002). Section 62(2) states that where the Secretary of State is empowered to examine a persons claim and give or refuse leave to enter the person may be detained pending that decision or pending a removal decision or removal itself. The Immigration Act (1971) authorises detention of a number of persons by immigration officers including: persons arriving in the UK pending a decision on their admission; persons whose leave to enter has been suspended; irregular entrants and those reasonably suspected of being irregular entrants; those who are being removed because they have overstayed visas or obtained leave by deception. The same Act authorises the Secretary of State to detain people in a number of circumstances including: those who have been given notice of deportation and are not ‘conducive to the public good’; or people who have been recommended for deportation following their conviction for a crime. The powers to detain are therefore very wide. There are no limits on how long a person may be detained for immigration reasons and there is no right to bail, section 68 of the 2002 Act provides that bail applications may be made after eight days in detention, and that the Secretary of State has the power to release persons on bail. Reasons for detention do not have to be disclosed.

The legislation and immigration rules do not set out criteria to be applied when the decision to detain is made, although until recently the guiding principle was that detention should be a ‘last resort’ when the person was likely to abscond or for other pressing reasons. However since March 2000 asylum seekers whose claims are considered to be straightforward are detained for seven days at the Oakington Reception Centre while their claim is considered (see 8.1-Fundamental rights). People are detained for immigration reasons in immigration detention centres, (now known as removal centres – section 66 of the 2002 Act), police cells, ports, the Oakington Reception Centre, appeal hearing centres and in prisons. Under section 23 of the Anti-terrorism Crime and Security Act (2001), persons certified as risks to national security or terrorists may be detained in any of the circumstances above even if they cannot be removed from the country. The UK made a derogation under Article 15 of the ECHR, in respect of Article 5, which protects citizens from arbitrary detention. They did so in order to be able to detain suspected terrorists indefinitely. Suspected terrorists may also face refusal of leave to enter or be the subject of deportation orders despite not being able to remove from the country under international law under, section 22 of the 2001Act.

The Immigration and Asylum Act (1999) makes it an offence under section 32 to assist clandestine entrants to enter the UK, and imposes financial penalties for doing so, provisions for the detention of vehicles are included under section 36, however the Act includes under section 34, defences for persons who were under duress or were not aware of the clandestine entrants concealments in their vehicle. The Nationality Immigration and Asylum Act 2002 sets out amendments to the Immigration Act 1971, which make it an offence for individuals to traffic persons for the purposes of prostitution. Section 145, creates an offence where an individuals arrival in the UK is facilitated or arranged for the purposes of prostitution and there is an intention for control to be exercised over the individual. The Act also creates offences under section 143 of assisting the unlawful immigration of an irregular migrant who is not a citizen of the European Union. The maximum penalty for committing this offence is 14 years imprisonment and a fine. It is also an offence under this section to knowingly and for gain facilitate the arrival of a person who a person knows or has reasonable cause to believe is an asylum seeker, although there is an exemption for organisations that aim to assist asylum seekers and do not charge for their services. For all these offences section 143, section 25C of the Act also allows the authorities to forfeit vehicles in certain circumstances.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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