Immigration policy regulates the flow of people into Britain and determines who has the legal right to stay and work here and who cannot. Asylum seekers, that is, those who are at risk of persecution in their own countries, have the right to request asylum. Many applicants are assigned to the detained fast track procedure, and detained in an immigration removal centre while their claim is assessed. An asylum applicant can appeal against an unsuccessful decision and, when this is exhausted, will remain in detention until they are removed from the country.

The UN High Commissioner of Refugees (UNHCR) has criticised Britain's use of fast track detention for asylum applicants for administrative convenience rather than last resort, and the lack of adequate safeguards to guarantee fairness of procedure and quality decision making.  The length of time in detention for those who have committed no crime risks breaching the right to liberty and security under Article 5.

Immigrants may be detained for long periods without any realistic prospect of removal, breaching their right to liberty. Detention can also have a detrimental impact on a detainee's mental and physical health that may engage the obligation to safeguard vulnerable individuals under Article 2, the prohibition on inhuman and degrading treatment under Article 3, and the right to psychological integrity  as an aspect of the right to a private life under Article 8. The government does not always follow its own procedures around assessing and removing people who are particularly vulnerable, such as survivors of torture and people with serious mental illness which risks breaching Article 5 for unlawful detention. Voluntary sector organisations and the UNHCR have criticised the fast track procedure for not having sufficient safeguards in place to prevent vulnerable individuals entering the fast track process. Article 2 obliges authorities to take reasonable measures to avert risk of self-harm and suicide. Measures in immigration removal centres (IRCs) are based on those in prisons but IRCs do not have access to similar mental health services, and health care staff lack expertise in trauma associated with torture.  This inadequate approach means that IRCs may not meet their Article 2 obligation in preventing suicide and self-harm.

The review also showed that despite the government's agreement to end the detention of children for immigration, children and families may still be detained for up to a week pending deportation. Children who enter the country as unaccompanied migrants, and those whose age is disputed may also be detained. The UN Convention on the Rights of the Child provides that detention should only be used as a last resort and for a short time, and the welfare of the child should be given primacy

The detention of people for immigration reasons is not always done with sufficient regard to Article 5 rights

Article 5 specifically provides that a person can be detained 'to prevent his effecting an unauthorised entry into the country' or when action is being  taken to deport or extradite someone. Any such detention must, however, be lawful, necessary and proportionate. There are various issues raised by the current system of immigration detention, particularly in relation to the treatment of children and vulnerable people, including victims of torture; flaws in the 'fast track' process; the excessive length of detention of some asylum seekers; and difficulties in obtaining bail.

This review shows that:

-  Children continue to be detained for immigration purposes, which may breach their Article 5 rights.

-  The increased use of the 'fast track' system for processing asylum applications risks breaching Article 5.

-  Contrary to government policy, UK Border Agency staff at detention centres do not always follow the correct procedures to safeguard vulnerable individuals and remove them from detention. This has led to Article 5 breaches and, in some cases, a breach of Article 3.

-  Many immigrants have been detained for lengthy periods without certain release dates, which can be unlawful under Article 5.

-  Under Article 5, anyone deprived of their liberty must have the opportunity to challenge their detention. However, the bail process remains inaccessible to many immigration detainees, including those unlawfully detained.

Download the 'Right to Liberty and Security' (PDF) http://www.equalityhumanrights.com/uploaded_files/humanrights/hrr_article_5.pdf

The UK's obligations  under Article 5

Article 5 of the European Convention on Human Rights provides that:

Everyone has the right to liberty and security of person.

1. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph l(C) of this Article shall be brought promptly before ajudge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.'

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