462 • Identifying the Stateless in the United Kingdom immigration detention because they are often undocumented, in an irregular situation, and without access to consular services.141 It is therefore important to be mindful of the strengths and limitations of the provisions concerning both the determination of statelessness and immigration detention. In light of that, the next part turns to discuss the interconnection between the two fields by focusing on immigration detention. 5 . I M M I G R AT I O N D ET E N T I O N O F STAT E L E S S P E R S O N S I N T H E A CC E S S TO J U ST I C E F R A M E W O R K 5.1 Legal framework on immigration detention Generally, HO officials can authorize the immigration detention of migrants in the following situations: (1) to effect removal; (2) to establish a person’s identity or grounds for a claim; or (3) where there is reason to believe that the person will not comply with the conditions of temporary admission or release.144 Factors that must be taken into account when authorizing detention include the likelihood of the person being removed and the time frame involved; evidence of previous absconding and failure to comply with release conditions; previous breach of immigration laws; ties to the UK; expectation of the outcome of the substantive immigration case; whether the person is a minor or an ‘adult at risk’ (for example, a victim of trafficking/modern slavery, a transgender or intersex person, someone suffering from a physical or mental condition, including those who have undergone torture).145 Significantly, statelessness is not listed among the factors to be considered despite its complex nature and negative consequences. Furthermore, the law does not require that a country of removal be identified prior to detention. Finally, there is a presumption in favour of detention in the case of foreigners who have committed criminal offences in order to protect the public interest and prevent absconding.146 141 142 143 144 145 146 Katia Bianchini, ‘The Case Law of the European Court of Human Rights Pertaining to Immigration Detention of Stateless Persons’ (2019) 2 Asyl 17. Ian A Macdonald and Ronan Toal, Macdonald’s Immigration Law & Practice (LexisNexis 2014) 1621. Immigration Act 1971 (as amended) sch 2 para 16; sch 3. HO, UK Visas and Immigration, ‘Enforcement Instructions and Guidance’ ch 55, para 55.1.1. HO, ‘Adults at Risk in Immigration Detention. V5.0’ (2019) 5–8. HO (n 144) ch 55, para 55.3.A; Equal Rights Trust (n 107) 115. Downloaded from https://academic.oup.com/ijrl/article/32/3/440/6065591 by guest on 04 July 2025 In the UK, the use of detention for immigrants constitutes a central focus of the government’s policy to enforce immigration law.142 The original powers of detention are set out in the Immigration Act 1971.143 In addition to statutory restrictions, other factors, such as HO policy, human rights law, and judicial scrutiny, also limit the broad powers of immigration detention. The following sections discuss the relevant provisions and demonstrate a failure to ensure adequate access to justice for stateless people. Owing to the lack of provisions relating to the detention of stateless persons, these sections draw on standards generally applicable to migrants and identify the particular issues that arise for stateless persons.