Immigration Detention and Statutory Discretion of Powers

Nationals are being detained since their place of birth was in a foreign country. There is growing concern to the mental and emotional state that the asylum seekers arrive in. It is quite common that a large majority of individuals seeking asylum have come from countries where violence, threat and poverty has been inflicted upon them. On the contrary, non-consensual detention has been justified by the Home Office as ‘prescribed detention to benefit and protect both the surrounding community and the individuals themselves’. Nevertheless, this argument is supported by the growing number of immigrants in the UK that are homeless living in tents and those that are deprived of the required necessities to maintain a sustainable living. In conclusion, from time to time, certain nations are faced with mass migration which may be due to several reasons ranging from national conflict to humanitarian welfare. 

Europe has received close to a million individuals who were seeking asylum in 2019. In comparison with other modern democratic nation where limit to a maximum period of detention is 32 days unless the individuals is believed to be a grave risk to the public safety to the country is based on individual circumstances and the his or her criminal record. United Kingdom, nevertheless remains the only country in Europe with no such time perimeter on the detention of a non-UK national for the purposes of immigration. Consecutively, immigration caseworkers and authorities have a reduced incentive to process the immigration claims in a swift manner which ultimately results in extensive detaining periods which is undergone by the detainees. Under such circumstances, rigid yet essential legislative systems fail to process the claims of individuals for different immigration intentions in time and unavoidably, the potential migrants have to be detained temporarily because of public safety. Discretion of immigration controls fails to protect detainees against arbitrary detention. This is an inevitable conflict between practical considerations for human rights theories and laws. Discretion of immigration powers is always prone to some sort of risk. Statutory criteria and independent decision making in regards to detention should be made indispensable to safeguard the fundamental human rights of immigrants. 

The Race Relations Act 2000 (Amended) covers the protection against arbitrary detention in regards to race, ethnicity or colour discrimination. It is unlawful for the Home Office staff to detain individuals based on the above mentioned. Conversely, it is not an improper practice for the Home Office to differentiate and implement distinctive methods of investigations or apply different durations of detention periods to those who are from a specific country that is listed in undisclosed list of instructions. Since 2010, there has been change in policy to the detention of families with children in immigration removal centres. The change in policy was implemented by the Coalition Government and it states that families with children may no longer be detained in immigration removal centres. However, even with this change in policy, as a final measure, families with children can still be detained by the Home Office for a maximum of 72 hours in ‘pre departure accommodation.’ Upon the discretion of Ministerial Authourity, this can be prolonged for a period of upto seven day however this is only to be sanctioned in extreme and exceptional circumstances. In 2011, a new pre-departure accommodation centre was opened called Cedars. This is a new facility that is fully secure and managed by security firm G4S, funded by the Home Office. The new policy states that all unaccompanied children must not be detained except in rare exceptional circumstances as listed in paragraphs 55.9.3A- 55.9.3C of the policy document. There has been increasing pressure to apply the policy to prevent detention of vulnerable individuals. This can stem to victims of rape, gender violence, and those with learning difficulties. It has been argued that the previous policy failed to protect those vulnerable individuals where detaining them would have adverse effects on their health with the potential to scar. This is proven with growing self-harm and suicide rates in the detention centres. 

However, since the new policy and the new secure Cedar facility, the suicide rates have heavily declined. Immigration detention practice in the UK, despite its criticism and scope to reform in many ways is an extremely crucial punitive parameter to benefit and aid to protect the public health and safety of the residents of the UK. Many critics favour the immigration process and claim that the discretion of powers that serves as a blanket for gaps in the system that allow deceptive immigrants to seek unendorsed entry. It defences the nation against individuals seeking entry who may potentially be a threat to the economy, health and safety of the British citizens. It is to be applied in a manner which deters ‘dangerous’ asylum seekers from immigrating to in to the UK. The mechanism moulded by the Home Office revolves around the question of whether one is fleeing persecution and to those fleeing poverty to seek sanctuary in to the UK.

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