The Secretary of State has the power to detain almost any person who is subject to immigration control. However, there are limitations on this power to detain in circumstances where there is a lengthy detention with no realistic prospect of removal, or where there are strong ties to the community.
It is also important to consider the actions of the detainee, both past and present, can have an impact on whether it is reasonable to exercise the power to detain.
The detainee will be detained in a place in which the Secretary of State designates as appropriate, usually at a Detention Centre, although prisons are still used, and Reception Centres, with a less regimented environment have been introduced. Call us now on 0116 285 80 80.
What Is Removal?
Most removals from the UK of foreign nationals (that is if you are non-British and/or a non-EEA national), take place by way of ‘administrative removal’. This is simply the removal of the person from the United Kingdom. Once outside the UK, the person can apply for re-entry under the Immigration Rules, although there may be issues regarding the trigger of a possible re-entry ban depending on the immigration history of the individual concerned. Administrative removal is distinct from deportation, in that a deportation order physically excludes the person from readmission to the UK for at least three years. However, an administrative removal is a direction and not an order to be removed and has no time period attached to the implementation of the removal.
This applies to illegal entrants, and those who became present in the UK illegally, i.e. over stayers and others who have breached the conditions of their stay in the UK. Before going ahead with an administrative removal, the Home Office will review all relevant factors before making such a decision. There may be complex challenges to bring against administrative removal decisions. Call us now on 0116 285 80 80.
If I Am In Detention, Can I Be Granted Bail?
The Immigration Tribunal* has a power to grant bail. The individual may be released on bail subject to conditions. It is important to note that at the bail hearing the burden of proof in justifying detention lies, given the presumption in favour of bail, on the Secretary of State to the balance of probabilities. The immigration judge must give a reasoned decision in writing.
How does Deportation differ? – Deportation is the process whereby a non-British citizen can be compulsorily removed from the UK and prevented from returning unless the deportation order is revoked. There is no power to deport a person who has already left the UK. A deportation order operates to cancel leave to remain (e.g. it removes your status to remain in the UK).
But deportation has an effect long after the removal. A deportation order continues in force until it is revoked. Deportation must be distinguished from other forms of compulsory removal which may only affect current applications and stay in the UK.