Policy mandating the consideration of alternatives before detention
According to the UK Border Agency, Enforcement Instructions and Guidance Chapter 55.1.1. General: The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57).
According to the UK Border Agency’s (UKBA) UK Border Agency, Enforcement Instructions and Guidance there are three ‘alternatives to detention’ in the UK: temporary admission, release on restrictions, or bail. The distinction between these three options is that temporary admission and release on restrictions may be ordered prior to any detention being imposed, whereas bail is granted only after one has already been detained.
Regular administrative review of detention
In the United Kingdom, mandatory administrative reviews are available to all persons subject to immigration detention, starting within the first 24 hours, then at 7 days, 14 days, 28 days and then every month. The reviews are to be undertaken by increasingly senior members of the administration, recognising the seriousness of prolonged detention.
Applications for bail to the judicial authorities as well as judicial review of administrative decisions remain available throughout, although both are not automatic and are subject to some restrictions.
The Solihull pilot project showed investing in early legal advice saved overall costs and resulted in faster and more sustainable primary decisions. Reduced appeals = shorter accommodation and basic funding + savings on the costs of appeal court process. The average saving of [pounds] 47,205.50 for every 100 cases proceeding to appeal was because more sustainable decisions were made in the first instance and there was a subsequent reduction in allowed appeals.
Monitoring: Directed Residence
The United Kingdom has previously received asylum seekers into the community, but in future all those who request State support will be required to reside in large collective accommodation centres. As in Norway, this is more a cost-sharing measure, based on dispersal away from London and the southeast, rather than an alternative to detention, though the government did promote its new policy in terms of the beneficial effects that such centres, combined with electronic identity cards, would have in terms of controlling applicants’ whereabouts.
Monitoring: Reporting Requirements
“In the United Kingdom, the traditional bail condition that former detainees should report to the police has been combined, under recent legislation, with a wider duty for all asylum seekers receiving State support but living independently to report to special ‘reporting centres’.
These centres monitor asylum seekers living within a 25 mile or 90 minute radius, but a ‘mobile centre’ has also been established. The authorities may also visit an asylum seeker’s accommodation where reporting is prohibitively difficult. No information is yet publicly available as to whether these new UK reporting requirements are increasing the national rate of compliance with the asylum procedure, though it is believed that compliance is very high due to the fact that receipt of State assistance is conditional upon it.
Reporting requirements and conditions are regulated in the UK Home Office Guidance “Reporting – Standards of Operational Practice”. The frequency of reporting varies considerably, usually from every day to once a month.
Negative Consequences for Non-Compliance: Bail
Bail is available upon request in the UK within the first 8 days of detention by making an application to an Immigration Officer not below the rank of Chief Immigration Officer (CIO). After the 8 days, they can apply for bail to an Immigration Judge.
There are some exceptions. Bail guidance for judges presiding over immigration and asylum hearings instructs them to consider: (a) the reason or reasons why the person has been detained; (b) the length of the detention to date and its likely future duration; (c) the available alternatives to detention including any circumstances relevant to the person that makes specific alternatives suitable or unsuitable; (d) the effect of detention upon the person and his/her family; and (e) the likelihood of the person complying with conditions of bail.
Detained asylum-seekers may be required to produce a surety, an individual who agrees to be held responsible for ensuring compliance with bail conditions. This requirement is not automatic: due regard should be given to the fact that people recently arrived in the country may have nobody to whom they could expect to stand surety for them. If there are no reasonable grounds for concluding that the applicant will abscond, a surety would be unnecessary.
The Bail guidance and its annexes further describe bail conditions that can be imposed. They make clear that stringency of the conditions should vary according to the circumstances of the applicant and the level of monitoring required. Indication about how to fix the amount of any financial bond is also given.
Find out more:
Ophelia Field and Alice Edwards, Alternatives to Detention of Asylum Seekers and Refugees, (Geneva: UNHCR, 2006).
Over the past five years, the IDC has undertaken a program of research to identify and describe a number of positive alternatives to immigration detention (‘alternatives’) that respect fundamental rights, are less expensive and are equally or more effective than traditional border controls.
This research, entitled There are alternatives, provides readers with the guidance needed to successfully avoid unnecessary detention and to ensure community options are as effective as possible.
This text was published in September 2015.