LONDON: More than a million people are estimated to be living in the UK as illegal immigrants. A number of them are constraint to live in hostile environment and facing hardship in detention centers.
Home Office, after facing a hard wave of parliamentarians and campaigners, announced an amnesty for the illegal immigrant who are vulnerable or living with risk will not be detained. “Detention will not be appropriate if an individual is considered to be at risk in the terms of this guidance unless and until there are overriding immigration considerations,” said Home Office.
In a statement issued by Home Office, it specifies the matters to be taken into account in accordance with section 59 of the Immigration Act 2016 when determining whether a person would be particularly vulnerable to harm if they were detained, or if they remained in detention, and, if they were particularly vulnerable in those circumstances, whether they should be detained or should remain in detention.
The clear presumption is that detention will not be appropriate if a person is “at risk”. However, it will not mean that no one at risk will ever be detained. Instead, detention will only become appropriate at the point at which immigration control considerations outweigh this presumption. For the purposes of removal, individuals can be detained if there is a realistic prospect of removal within a reasonable timescale and if there is evidence which suggests that the individual would not be likely to be removed without the use of detention.
Assessment of risk is based on the evidence available, ranging from a self-declaration of risk to authoritative professional opinion.
Where professional evidence is not immediately available, but where observations from Home Office officials lead to a belief that the individual is at a higher level of risk than a simple self-declaration would suggest, an individual can be allocated to a higher risk category in the terms of this guidance on the basis of that observational evidence.
The individuals will be regarded as being adult at risk if they declare that they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention.
Those considering or reviewing detention are aware of medical or other professional evidence, or observational evidence, which indicate that an individual is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention or having been a victim of sexual or gender based violence, including female genital mutilation or having been a victim of human trafficking or modern slavery.
The presumption will be that, once an individual is regarded as being at risk in the terms of this guidance, they should not be detained. However, any risk factors identified and evidence in support, will then need to be balanced against any immigration control factors in deciding whether they should be detained.
The immigration factors that will be taken into account includes length of time in detention – there must be a realistic prospect of removal within a reasonable period. An individual should be detained only if the immigration factors outweigh the risk factors such as to displace the presumption that individuals at risk should not be detained. This will be a highly case specific consideration. “Consideration must be given to whether there are alternative measures, such as residence or reporting restrictions, which could be taken to ensure an individual’s compliance whilst removal is being planned or arranged and to reduce to the minimum any period of detention that may be necessary to support that removal,” says Home Office.
In cases where an individual is detained during the consideration of their asylum claim and is successfully referred for a Medico Legal Report, the Asylum Policy Instruction on Medico Legal Reports will apply.
Between protecting the vulnerable and ensuring the maintenance of legitimate immigration control, there will be a clearer understanding of how the government defines ‘at risk’ and how those considerations are weighed against legitimate immigration control factors to ensure greater transparency about who is detained and why.
Assessment of risk will be based on the evidence available, ranging from a self-declaration of risk to authoritative professional opinion.
Where professional evidence is not immediately available, but where observations from Home Office officials lead to a belief that the individual is at a higher level of risk than a simple self-declaration would suggest, an individual can be allocated to a higher risk category in the terms of this guidance based on that observational evidence.
Based on the available evidence, the Home Office will reach a view on whether an individual should be regarded as being “at risk” in the terms of this guidance. If, on this basis, the individual is considered to be an adult at risk, the presumption will be that the individual will not be detained.
Once an individual has been identified as being at risk, consideration should be given to the level of evidence available in support and the weight that should be afforded to the evidence in order to assess the likely risk of harm to the individual if detained for the period identified as necessary to affect their removal.
The aim to introduce a more holistic approach to the consideration of individual circumstances, ensuring that genuine cases of vulnerability are consistently identified, in order to ensure that vulnerable people are not detained inappropriately. The guidance aims to strike the right balance.