E/CN.4/1999/63/Add.3
page 6
whenever possible, and authorizes detention only when there is no alternative.
Once detention is authorized, it is to be kept under close review to ensure
that it continues to be justified. If the person concerned is not likely to
comply voluntarily with any restrictions imposed upon him/her, then he/she is
required to be detained. Such assessment is, however, made in the light of
the person’s immigration history and circumstances. An illegal entrant who
lives at a settled address, has steady employment and a subsisting
relationship is more likely to adhere to the restrictions imposed than a
single unemployed person with no fixed abode. Factors relevant in making an
assessment of the necessity to detain will include any compassionate
circumstances, such as a medical condition of the subject or of a dependent
relative, the likely length of detention and the expectation of removal within
a reasonable period. Accordingly, detention is opted in respect of persons
who show real disregard for immigration laws and who are able to be removed
within a realistic time-frame.
11.
The criteria for detention are also laid down in the guidelines; these
are set out hereunder:
(a)
Is there any evidence of previous absconding from detention?
(b)
Is there any evidence of previous failure to comply with
conditions of temporary admission/release or bail?
(c)
Has the subject shown blatant disregard for the immigration law
(e.g. entry in breach of a deportation order, attempted or actual clandestine
entry)?
(d)
Has the subject attempted to gain entry by presenting falsified
documentation?
(e)
Is there a previous history of complying with the requirements of
immigration control, e.g. by applying for a visa, etc.?
(f)
What is the likelihood of the person being removed (especially in
asylum cases) and, if so, after what period of time?
(g)
What are the person’s ties with the United Kingdom? Does he/she
have a settled address/employment? Are there close relatives (including
dependants) in the United Kingdom?
(h)
What are the individual’s expectations about the outcome of the
case: are there factors, e.g. an outstanding application for judicial review,
representations or an appeal, which afford an incentive for him/her to keep in
touch with the Department?
12.
The Instructions of 20 September 1994 stipulate that the Government’s
policy is to authorize detention only when there is no alternative. They
state that the case for detention of an asylum seeker when he first makes his
claim must be particularly strong. The policy does not encourage detention of
individuals for lengthy periods, if it would be practical to effect detention
at a later stage, when rights of appeal have been exhausted. The rationale is
that a person who has an appeal pending or representation outstanding will