Asylum seekers and migrants can be detained in immigration removal centres (IRCs) or, post sentence, in prison while the Home Office makes decisions on their immigration status and/or arrangements for their removal or deportation. Currently, there is no process for identifying detainees who lack the mental capacity to participate in decision making relating to their immigration situation. Mental illness and distress are common among detainees. There are often cultural and language barriers; there is no consistent system of advocates, and many detainees are without legal representation. Mental capacity is decision specific. Clinicians in IRCs have a duty to consider detainees' capacity for health-care decisions, but are not expected to carry out any assessment in the broader context of immigration decision making, and there is no set procedure for notifying immigration decision makers with any concerns about a detainee's capacity. The Home Office focusses on safeguarding vulnerable people in detention, but not on whether such detention should happen or whether individuals identified as especially vulnerable have the necessary capacity for immigration-related decisions. In the community, asylum seekers and migrants can be supported in their engagement with immigration officials by family and friends and other advocates of their choice. This is not the case for immigration detainees. The current arrangements carry a significant risk of unfair decisions being made on the most vulnerable detainees without their capacitous participation. Recommendations for changes are made, including the need for a high threshold to be applied to justify any detention of people who lack immigration-related decision-making capacity.
Keywords: Mental capacity; immigration detention.