Nationality, Immigration and Asylum Act 2002

Detention

62Detention by Secretary of State

(1)A person may be detained under the authority of the Secretary of State pending—

(a)a decision by the Secretary of State whether to give directions in respect of the person under paragraph 10, 10A or 14 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal), or

(b)removal of the person from the United Kingdom in pursuance of directions given by the Secretary of State under any of those paragraphs.

(2)Where the Secretary of State is empowered under section 3A of that Act (powers of Secretary of State) to examine a person or to give or refuse a person leave to enter the United Kingdom, the person may be detained under the authority of the Secretary of State pending—

(a)the person’s examination by the Secretary of State,

(b)the Secretary of State’s decision to give or refuse the person leave to enter,

(c)a decision by the Secretary of State whether to give directions in respect of the person under paragraph 8 or 9 of Schedule 2 to that Act (removal), or

(d)removal of the person in pursuance of directions given by the Secretary of State under either of those paragraphs.

(3)A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall apply to a person who is detained or liable to detention under this section: and for that purpose—

(a)a reference to paragraph 16 of that Schedule shall be taken to include a reference to this section,

(b)a reference in paragraph 21 of that Schedule to an immigration officer shall be taken to include a reference to the Secretary of State, and

(c)a reference to detention under that Schedule or under a provision or Part of that Schedule shall be taken to include a reference to detention under this section.

(4)In the case of a restriction imposed under paragraph 21 of that Schedule by virtue of this section—

(a)a restriction imposed by an immigration officer may be varied by the Secretary of State, and

(b)a restriction imposed by the Secretary of State may be varied by an immigration officer.

(5)In subsection (1) the reference to paragraph 10 of that Schedule includes a reference to that paragraph as applied by virtue of section 10 of the Immigration and Asylum Act 1999 (c. 33) (persons unlawfully in United Kingdom: removal).

(6)Subsection (5) is without prejudice to the generality of section 159.

(7)A power under this section which is exercisable pending a decision of a particular kind by the Secretary of State is exercisable where the Secretary of State has reasonable grounds to suspect that he may make a decision of that kind.

(8)At the end of section 11(1) of the Immigration Act 1971 (c. 77) (person not deemed to have entered United Kingdom while detained, &c.) there shall be inserted “or section 62 of the Nationality, Immigration and Asylum Act 2002”.

(9)In section 24(1)(e) of the Immigration Act 1971 (offence: failure to comply with restriction) for “or to an immigration officer” there shall be substituted “, to an immigration officer or to the Secretary of State”.

(10)In the Mental Health Act 1983 (c. 20)—

(a)at the end of section 48(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added “or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)”, and

(b)in the heading of section 53 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts.

(11)In the Mental Health (Scotland) Act 1984 (c. 36)—

(a)at the end of section 71(2)(c) (detained persons who may be transferred to hospital for mental treatment) there shall be added “or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by the Secretary of State)”, and

(b)at the end of section 74(1)(b) (further provision about such persons) there shall be added “or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by the Secretary of State)”.

(12)In the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4))—

(a)at the end of Article 54(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added “or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)”, and

(b)in the heading of Article 59 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts.

(13)Section 53 of the Immigration and Asylum Act 1999 (c. 33) (bail) shall be amended as follows—

(a)at the end of subsection (1) add “or under section 62 of the Nationality, Immigration and Asylum Act 2002”, and

(b)at the end of subsection (3)(a) add “or under section 62 of the Nationality, Immigration and Asylum Act 2002”.

(14)In section 147 of that Act (detention centres: interpretation) at the end of the definition of “detained persons” there shall be inserted “or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State);”.

(15)Section 23(2) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (detention of suspected international terrorist) shall be amended as follows—

(a)omit “and” after paragraph (a), and

(b)after paragraph (b) add— “, and

(c)section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State).”

(16)In section 24(1) of that Act (bail) after “the Immigration Act 1971” insert “, or under section 62 of the Nationality, Immigration and Asylum Act 2002,”.

63Control of entry to United Kingdom, &c.: use of force

In paragraph 17(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry, &c.: person liable to detention: use of force) for “if need be by force” there shall be substituted “if need be by reasonable force”.

64Escorts

The following shall be added after paragraph 17(2) of Schedule 2 to the Immigration Act 1971 (detention for examination or removal: right to enter premises)—

“(3)Sub-paragraph (4) applies where an immigration officer or constable—

(a)enters premises in reliance on a warrant under sub-paragraph (2), and

(b)detains a person on the premises.

(4)A detainee custody officer may enter the premises, if need be by reasonable force, for the purpose of carrying out a search.

(5)In sub-paragraph (4)—

• “detainee custody officer” means a person in respect of whom a certificate of authorisation is in force under section 154 of the Immigration and Asylum Act 1999 (c. 33) (detained persons: escort and custody), and

• “search” means a search under paragraph 2(1)(a) of Schedule 13 to that Act (escort arrangements: power to search detained person).”

65Detention centres: custodial functions

(1)The following shall be substituted for section 154(5) of the Immigration and Asylum Act 1999 (power to confer functions of detainee custody officers on prison officers and prisoner custody officers)—

“(5)The Secretary of State may confer functions of detainee custody officers on prison officers or prisoner custody officers.”

(2)The following shall be added at the end of Schedule 11 to that Act (detainee custody officers)—

“Prison officers and prisoner custody officers

8A reference in this Schedule to a detainee custody officer includes a reference to a prison officer or prisoner custody officer exercising custodial functions.”

(3)The following shall be added at the end of Schedule 12 to that Act (discipline at detention centre)—

“Prison officers and prisoner custody officers

9A reference in this Schedule to a detainee custody officer includes a reference to a prison officer or prisoner custody officer exercising custodial functions.”

66Detention centres: change of name

(1)In section 147 of the Immigration and Asylum Act 1999 (c. 33) (Part VIII: interpretation)—

(a)the definition of “detention centre” shall cease to have effect, and

(b)the following shall be inserted after the definition of “prisoner custody officer”—

““removal centre” means a place which is used solely for the detention of detained persons but which is not a short-term holding facility, a prison or part of a prison;”.

(2)In the provisions listed in subsection (3) (and any relevant headings)—

(a)for the words “detention centre” there shall be substituted the words “removal centre”, and

(b)for the words “detention centres” there shall be substituted the words “removal centres”.

(3)The provisions are—

(a)in section 147 of the Immigration and Asylum Act 1999 (Part VIII: interpretation), the definitions of “contracted out detention centre”, “contractor”, “custodial functions”, “detention centre contract”, “detention centre rules”, and “directly managed detention centre”,

(b)section 148 of that Act (management of centre),

(c)sections 149 and 150 of that Act (contracting out),

(d)section 151 of that Act (intervention by Secretary of State),

(e)section 152 of that Act (visiting committee),

(f)section 153 of that Act (rules),

(g)section 155 of that Act (custodial functions),

(h)section 157 of that Act (short-term holding facility),

(i)section 158 of that Act (disclosure of information),

(j)section 159 of that Act (power of constable),

(k)Schedule 11 to that Act (detainee custody officer),

(l)Schedule 12 to that Act (procedure at detention centre),

(m)Schedule 13 to that Act (escort),

(n)section 141(5)(e) and (6) of that Act (fingerprinting),

(o)section 5A(5A) of the Prison Act 1952 (c. 52) (Chief Inspector of Prisons), and

(p)paragraph 13 of Schedule 4A to the Water Industry Act 1991 (c. 56) (disconnection).

(4)A reference in an enactment or instrument to a detention centre within the meaning of Part VIII of the Immigration and Asylum Act 1999 (c. 33) shall be construed as a reference to a removal centre within the meaning of that Part.

67Construction of reference to person liable to detention

(1)This section applies to the construction of a provision which—

(a)does not confer power to detain a person, but

(b)refers (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.

(2)The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that—

(a)he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom’s obligations under an international agreement,

(b)practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or

(c)practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.

(3)This section shall be treated as always having had effect.