The Short-term Holding Facility Rules 2018

Made: 22nd March 2018

Laid before Parliament: 27th March 2018

Coming into force: 2nd July 2018

The Secretary of State makes the following Rules in exercise of the powers conferred by sections 157(1) and (3) and 166(3) of, and paragraph 1 of Schedule 12 to, the Immigration and Asylum Act 1999 .

PART 1

Citation and commencement

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These Rules may be cited as the Short-term Holding Facility Rules 2018 and come into force on 2nd July 2018.

Interpretation

2

In these Rules—

• “contracted out short-term holding facility” means a short-term holding facility in respect of which there is a contract entered into by the Secretary of State under regulation 2 of the Immigration (Short-term Holding Facilities) Regulations 2002 ;

• “directly managed short-term holding facility” means a short-term holding facility which is not a contracted out short-term holding facility;

• “health care professional” means a registered medical practitioner or a registered nurse;

• “holding room” means a short-term holding facility where a detained person may be detained for a period of not more than 24 hours unless a longer period is authorised by the Secretary of State;

• “legal adviser” means a detained person's counsel, representative or solicitor, and includes a clerk acting on behalf of that solicitor;

• “manager” means—in relation to a directly managed short-term holding facility, the official of the Secretary of State designated to complete the tasks that fall to a manager under these Rules;in relation to a contracted out short-term holding facility, a member of the contractor's staff—designated to complete the tasks that fall to a manager under these Rules, andcertified as a detainee custody officer.

• “member of staff” means a person working at a short-term holding facility;

• “officer” means—an official of the Secretary of State;an employee of the contractor;a detainee custody officer (and includes a detainee custody officer who is authorised to perform escort functions in accordance with section 154 of the Immigration and Asylum Act 1999 ), oran immigration officer.

• “port” includes airport;

• “residential holding room” means a short-term holding facility where a detained person may be detained for a period of not more than 96 hours unless a longer period is authorised by the Secretary of State.

PART 2 — APPLICATION

Application of these Rules

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Subject to rules 4 (places of detention), 5 (directly managed short-term holding facilities), 6(4) to (8) (holding rooms) and 6A(4) to (12) (residential holding rooms) these Rules apply to a short-term holding facility and to a detained person in a short-term holding facility.

Places of detention

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• (1) These Rules do not apply to the facilities listed in paragraph (2) or to a detained person who is detained in such a facility.

• (2) The facilities are—

• (a) a police station;

• (b) a hospital;

• (c) a young offender institution;

• (d) a prison or remand centre;

• (e) in the case of a person under 18, a place of safety, and

• (f) any premises at which appeals or reviews under Part 5 of the Nationality, Immigration and Asylum Act 2002 or under the Special Immigration Appeals Commission Act 1997 are heard or any place provided specifically for the purpose of detention in such premises.

• (3) For the purposes of paragraph (2) “place of safety”—

• (a) in England and Wales, has the same meaning as in the Children and Young Persons Act 1933 ;

• (b) in Scotland, has the same meaning as in the Children's Hearings (Scotland) Act 2011 ;

• (c) in Northern Ireland, means a home provided under Part 7 of the Children (Northern Ireland) Order 1995 , any police station, any hospital or surgery, or any other suitable place, the occupier of which is willing temporarily to receive a person under the age of 18.

Directly managed short-term holding facilities

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• (1) These Rules apply to directly managed short-term holding facilities except for rule 41 (staff employed by the contractor) and subject to the modifications set out in paragraphs (2) to (6).

• (2) Rule 9(11) (detained person's property) applies as if for “joint authority of the manager and the contract monitor” there were substituted “ authority of the manager ”.

• (3) Rule 17(3) (food) applies as if—

• (a) for “The contract monitor” there were substituted “ The manager ”, and

• (b) after “and drink” there were omitted “and must report any deficiency or defect to the manager”.

• (4) Rule 34 (requests and complaints) applies as if paragraph (4) were omitted.

• (5) Rule 35 (removal from association) applies as if—

• (a) in paragraph (1) for “The Secretary of State” there were substituted “ The manager ”, and

• (b) paragraph (2) were omitted.

• (6) Rule 37 (temporary confinement) applies as if—

• (a) in paragraph (1) for “The Secretary of State” there were substituted “ The manager ”, and

• (b) paragraph (2) were omitted.

Holding rooms

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• (1) Subject to paragraph (2) and without prejudice to rule 6A, a detained person must not be detained in a holding room for a period of more than 24 hours.

• (2) The Secretary of State may authorise this period to be extended if the Secretary of State determines that exceptional circumstances require it.

• (3) These Rules apply to a holding room and to a detained person detained in a holding room except for those provisions listed in paragraph (4) and subject to the modifications in paragraphs (5) to (8).

• (4) The provisions are—

• (a) rule 13 (accommodation);

• (b) rule 14 (sleeping accommodation);

• (c) rule 15(1) and (2) (families and minors);

• (d) rule 16 (clothing);

• (e) rule 18(1)(b) and (c) (hygiene);

• (f) rule 24 (correspondence);

• (g) rule 25 (visits);

• (h) rule 29 (access to the internet);

• (i) rule 30 (medical screening);

• (j) rule 32 (special illnesses and conditions);

• (k) rule 35 (removal from association);

• (l) rule 37 (temporary confinement);

• (m) rule 48 (visitors).

• (5) Rule 20(2) (time in open air) applies as if it provided —

(2) Time in the open air may be refused— (a) in exceptional circumstances where necessary in the interests of the security of the short-term holding facility or the safety of the detained person or other persons, or (b) where the location or design of the short-term holding facility means that it is not reasonably practicable for detained persons to spend time in the open air.

• (6) Rule 23 (outside contacts) applies as if it provided—

(23) (1) Subject to paragraph (2), a detained person may enjoy communications with a person outside a short-term holding facility in accordance with rule 28 (use of telephones). (2) A detained person is not permitted to have communications with a person outside the short-term holding facility to the extent to which the communication would prejudice the interests of the security of the short-term holding facility or the safety of the detained person or other persons.

• (7) Rule 27 (legal adviser) applies as if—

• (a) in paragraph (1) for “paragraph (2)” there were substituted “ paragraphs (2) and (3) ”, and

• (b) at the end there were inserted—

(3) A detained person is not permitted to meet with their legal adviser if the person is detained within an area of a port which non-travelling members of the public are not permitted to enter (but they may consult with their legal adviser by telephone).

• (8) Rule 31 (general medical care) applies as if it provided—

(31) If a detained person becomes— (a) ill, or (b) sustains an injury, such that the detained person requires attention by a health care professional, prompt access to a health care professional must be provided and any arrangements made for supervision, care or transfer to hospital that appear necessary to the manager.

PART 3 — DETAINED PERSONS

Admission and discharge

Information to detained persons about these Rules and the short-term holding facility

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• (1) The following information must be available at a short-term holding facility for consultation by a detained person—

• (a) a copy of these Rules;

• (b) information about any procedures in place for applying for bail;

• (c) information about the right to seek legal advice;

• (d) any other information about the procedures in the short-term holding facility relevant to the detained person's rights and responsibilities, and

• (e) any translation of these Rules and of the information in sub-paragraphs (b) to (d) which is available, if required by the detained person.

• (2) In the following cases the manager must ensure that the information in paragraph (1) is explained in a language which the detained person understands to the extent necessary to enable the detained person to understand their rights and responsibilities—

• (a) where the detained person is under the age of 18, or

• (b) where the detained person appears to have difficulty understanding that information.

Record, photograph and fingerprinting

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• (1) For purposes of identification and welfare a personal record must be prepared and maintained for each detained person.

• (2) A personal record—

• (a) must include the name and date of birth of the detained person, and

• (b) may include other information, including details and measurements of external physical characteristics.

• (3) A personal record or a copy of it must not be given to any person unless they are authorised by the Secretary of State to receive it.

• (4) A detained person may be photographed by an officer on reception and subsequently.

• (5) A photograph of a detained person or a copy of it must not be given to any person, unless they are authorised by the Secretary of State to receive it.

• (6) A detained person's fingerprints may be taken in accordance with section 141 of the Immigration and Asylum Act 1999 (fingerprinting).

Detained person's property

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• (1) The manager of a short-term holding facility may refuse to permit a detained person to store property in the facility if it is excessive in weight or size.

• (2) A detained person must not store in the short-term holding facility property belonging to another detained person.

• (3) Subject to paragraph (4) of this rule and rule 10(7) and (8) (search), a detained person may retain for personal use property admitted to the short-term holding facility.

• (4) A detained person must not store or retain property for personal use if it is considered by the manager to be—

• (a) contrary to the interests of the security of the short-term holding facility;

• (b) contrary to the safety of any person, or

• (c) incompatible with the storage facilities provided at the short-term holding facility.

• (5) Any property which a detained person has at a short-term holding facility but is not allowed to retain for personal use under this rule must be surrendered by the detained person into the manager's custody.

• (6) An inventory of a detained person's property must be kept and the detained person must be requested to sign it after having an opportunity to establish that it is correct.

• (7) Any cash or other valuable items that a detained person does not wish to keep in their possession must be deposited with the manager for safekeeping and a receipt must be issued which the detained person must be requested to sign after having an opportunity to establish that it is correct.

• (8) A detained person may have reasonable access to any cash or other valuable items deposited with the manager for safekeeping under paragraph (7).

• (9) Subject to paragraph (12), upon a detained person's discharge from the short-term holding facility—

• (a) any property surrendered to the manager under paragraph (5) and any cash or other valuable item deposited with the manager under paragraph (7) must be returned to the detained person, and

• (b) the detained person must be requested to sign the inventory referred to in paragraph (6) to confirm receipt of any item that is returned.

• (10) An item belonging to a detained person which remains unclaimed for a period of more than—

• (a) 28 days after the detained person is discharged from the short-term holding facility, or

• (b) 6 months after the detained person dies,

may be sold or otherwise disposed of.

• (11) The net proceeds of any sale under paragraph (10) must be applied, under the joint authority of the manager and the contract monitor, to purposes for the benefit of detained persons.

• (12) Any item which a detained person is not permitted to retain under paragraph (4)(a) or (b) may–—

• (a) be returned to the detained person upon discharge from the short-term holding facility in accordance with paragraph (9), or

• (b) may be disposed of in such manner as the manager may direct.

Search

10

• (1) Every detained person must be searched by a detainee custody officer or an immigration officer for reasons of the security of the short-term holding facility and the safety of the detained person or other persons—

• (a) when taken into custody by a detainee custody officer or an immigration officer;

• (b) on reception into a short-term holding facility, and

• (c) subsequently as the manager thinks necessary.

• (2) A detained person must be searched in as seemly a manner as is consistent with discovering anything concealed.

• (3) Where a detained person under the age of 18 is detained at the same short-term holding facility as their parent or carer, that parent or carer must, where possible, be present during any search of the detained person under the age of 18.

• (4) A full search may be carried out under paragraph (1), but such a search must not be carried out within the presence of—

• (a) another detained person, or

• (b) a person of the opposite sex.

• (5) A full search of a detained person under the age of 18 must not be carried out under this rule.

• (6) An intimate search may not be carried out under this rule.

• (7) A detainee custody officer or an immigration officer may confiscate any item located as a result of a search under paragraph (1) that the detainee custody officer or immigration officer has reasonable grounds to believe may compromise the security of the short-term holding facility or the safety of any person.

• (8) The manager may at any time confiscate an unauthorised item found concealed or deposited anywhere within the short-term holding facility.

• (9) Any item confiscated under paragraph (7) or (8) may be disposed of in such manner as the manager may direct, which may include returning the item to the detained person upon discharge from the short-term holding facility.

• (10) For the purposes of this rule “full search” means a search which involves the removal of an item of clothing which—

• (a) is being worn wholly or partly on the trunk, and

• (b) is being so worn either next to the skin or next to an article of underwear.

• (11) For the purposes of paragraph (6) “intimate search” means a search which consists of the physical examination of a person's body orifices other than the mouth.

Custody outside short-term holding facilities

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• (1) A person being taken to or from a short-term holding facility in custody must be exposed as little as possible to public observation and care must be taken to protect that person from curiosity and insult.

• (2) A detained person required to be taken into custody anywhere outside a short-term holding facility must be kept in the custody of a detainee custody officer, an immigration officer or a constable.

Reasons for detention and update of claim

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• (1) The Secretary of State must provide a detained person with written reasons for their detention when they are first detained and following any review of their detention.

• (2) Where a detained person requests an update on the progress of any relevant matter the Secretary of State must provide that update within a reasonable time.

• (3) For the purposes of paragraph (2) “relevant matter” means—

• (a) a claim for asylum;

• (b) an application for leave to enter or remain in the United Kingdom;

• (c) an application for British nationality;

• (d) a claim for a right of admission into the United Kingdom under a provision of retained EU law ;

• (e) a claim for a right of residence in the United Kingdom under a provision of retained EU law ;

• (f) the proposed removal or deportation of the detained person from the United Kingdom;

• (g) an application for bail under the Immigration Acts or under the Special Immigration Appeals Commission Act 1997, or

• (h) an appeal against, or an application for administrative review or judicial review in relation to, any decision taken in connection with a matter referred to in sub-paragraphs (a) to (g).

Facilities

Accommodation

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• (1) The Secretary of State must be satisfied that sufficient accommodation is provided for the detained persons in every short-term holding facility.

• (2) No room is to be used as sleeping accommodation for a detained person unless the Secretary of State has certified that—

• (a) its size, lighting, heating, ventilation and fittings are adequate for health;

• (b) it has adequate storage facilities (subject to the interests of the security of the short-term holding facility and the safety of detained persons and of other persons), and