Commentary on provisions of the Act Section 11: Powers of detention
This section makes provision for the detention of persons falling within section 2, that is persons liable to removal to their home country or a safe third country pursuant to the duty imposed on the Secretary of State by that section.
	The section amends paragraph 16 of Schedule 2 to the 1971 Act which makes provision for the detention of persons liable to examination or removal. Specifically, paragraph 16 enables a person to be detained under the authority of an immigration officer pending their examination, pending a decision to give or refuse them leave to enter, or pending a decision to remove in the following circumstances:
	where they have arrived at a port and they are required to submit to examination (usually questioning) under paragraph 2 of Schedule 2 to the 1971 Act, pending that person’s examination and pending any decision to give or refuse leave to enter (paragraph 16(1) of Schedule 2);
where their leave is suspended at port under paragraph 2A of Schedule 2 to the 1971 Act (examination of persons who arrive with continuing leave), pending completion of that person’s examination and a decision whether to cancel that leave (paragraph 16(1A) of Schedule 2 to the 1971 Act);
where they are required to submit to further examination (usually questioning) under paragraph 3(1A) of Schedule 2 to the 1971 Act (examination of persons embarking or seeking to embark in the UK), for up to 12 hours pending completion of that examination (paragraph 16(1B) of Schedule 2 to the 1971 Act); and
where there are reasonable grounds to believe that they are a person in respect of whom removal directions may be given under paragraphs 8 to 10A or 12 to 14 of Schedule 2 to the 1971 Act pending a decision to give such directions or pending removal in pursuance of such directions (paragraph 16(2) of Schedule 2 to the 1971 Act).
	Subsection (2) inserts new sub-paragraphs (2C) to (2P) into paragraph 16 of Schedule 2 to the 1971 Act. New sub-paragraph (2C) confers four new powers of detention. New paragraph (2C) (a) enables a person to be detained under the authority of an immigration officer where the immigration officer suspects that the person falls within the cohort specified in section 2; such detention may last until a decision is taken that the person does indeed fall within the cohort. New paragraph (2C)(b) provides that where the Immigration Officer suspects that the Secretary of State has a duty to make arrangements for removal, an individual may be detained pending a decision on whether the duty applies. New paragraph (2C)(c) provides that once a determination has been made that a person is subject to the duty to remove, they may be detained pending the person’s removal. New paragraph (2C)(d) enables an unaccompanied child to be either detained pending removal under section 4(2) or, where an unaccompanied child is temporarily exempt from the duty to remove by virtue of section 4(1), pending the granting of limited leave under the Immigration Rules, new section 8AA of the 1971 Act (see section 30) or section 65(2) of the 2022 Act (which provides for the giving of limited leave to victims of modern slavery).
	New sub-paragraph (2D) provides that where an immigration officer is satisfied that a woman being detained under new sub-paragraph (2C) is pregnant, then the woman may not be detained for a period of more than 72 hours from the relevant time, or more than seven days from the relevant time, in a case where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).
	New sub-paragraph (2E) provides that where a woman has been released from detention as a result of the time limit set out in sub-paragraph (2D), they may be detained again at a future point under the detention powers in paragraph (2C) if appropriate.
	New sub-paragraph (2F) provides that where a woman has been previously detained under section 62(2A) of the Nationality, Immigration and Asylum Act 2002 and switched to detention under new sub-paragraph (2C), the relevant time will be the first point of detention.
	New sub-paragraph (2G) provides the definition for ‘the relevant time’, setting out that this means the later of the time of which the immigration officer is first satisfied that the woman is pregnant, and the time at which the detention under new sub-paragraph (2C) begins. A woman means a female of any age.
	New sub-paragraph (2H) provides that an unaccompanied child may only be detained under the powers of detention set out in new sub-paragraph (2C) in the circumstances to be specified in regulations made by the Secretary of State. In Immigration Removal Centres (IRC)unaccompanied children will only be detained in age-appropriate accommodation, as is set out in the Detention Centre Rules 2001 (made under section 153 of the Immigration and Asylum Act 1999). Rule 11 of the 2001 Rules provides that ‘detained persons aged under 18 and families will be provided with accommodation suitable to their needs’. Similarly, for short term holding facilities, Rule 15(3) of the Short-term Holding Facility Rules 2018 provides that ‘a detained person must be provided with everything reasonably necessary for the protection, safety, well-being, maintenance and care of any person under the age of 18 detained with them for whom they are responsible’.
	New sub-paragraph (2I) confers a regulation-making power which enables the Secretary of State to set out in regulations, if required, time limits that apply in relation to the detention of an unaccompanied child under sub-paragraph (2C)(d)(iv), which is detention for the purpose of removal.
	New sub-paragraph (2J) provides that the regulation making power under sub-paragraph (2H) confers a discretion on the Secretary of State or an immigration officer when exercising the relevant powers of detention for an unaccompanied child.
	New sub-paragraph (2L) provides that a person detained under new sub-paragraph (2C) may no longer be detained under paragraph 16(1), (1A), (1B), (2), (3) or (4) as described in paragraph 85 above; this provision ensures clarity as to which immigration detention powers should be applied.
	New sub-paragraph (2M) provides that a person detained under new sub-paragraphs (2C) may be detained in any place the Secretary of State considers appropriate (this includes, but is not limited to, pre-departure accommodation, a removal centre or a short-term holding facility, as defined by section 147 of the 1999Act).
	New sub-paragraph (2N) provides that the regulations under sub-paragraph (2H) or (2I) are subject to the negative procedure.
	Subsection (4) amends the definition of "pre-departure accommodation" in section 147 of the 1999 Act. The term means a place used solely for the detention of detained children and their families for a period of not more than 72 hours, or not more than seven days in cases where the longer period of detention is authorised personally by a Minister of the Crown. The effect of the amendment is that a person detained under the powers conferred by new paragraph 16(2C) of Schedule 2 to the 1971 Act may be detained for any period in pre-departure accommodation.
	Subsection (6) inserts new subsections (2A) to (2M) into section 62 of the 2002 Act. That section confers detention powers on the Secretary of State akin to those conferred on immigration officers by Schedule 2 to the 1971 Act. New subsections (2A) to (2M) mirror the provisions in new paragraphs 16(2C) to (2P) described above.
	Subsections (7) to (10) make further changes to section 62 of the 2002 Act consequential to the insertion of new subsections (2A) to (2M).
	Subsection (11) provides that the limitation on the detention of pregnant women to a maximum of 72 hours (or seven days when the longer period of detention is personally authorised by a Minister of the Crown) as provided for in section 60(8) of the 2016 Act does not apply to detention under this section. Instead, such limitation is provided for by new paragraph 16(2D) to (2G) of Schedule 2 to the 1971 Act and section 62(2B) to (2E) of the 2002 Act as detailed above.