Down that Wrong Road: Discretion in decisions to detain asylum seekers arriving at UK ports

The discretionary power to detain asylum seekers on arrival in the UK has been described by one human rights organisation as ‘extraordinary and largely unrestrained’ (Amnesty International 1996). Although decisions made by immigration officers can lead to long periods in prison or in prison‐like conditions, these actions are considered to be administrative and are therefore not subject to the legal constraints that apply to criminal justice agencies. This article traces the many sources of discretion in the use of Immigration Act detention, using an analytical framework developed by Schneider (1992). Discretion is found to originate from the vague and permissive nature of detention guidelines (rule‐failure discretion), the priority given to operational considerations at ports (rule‐binding discretion) and the failure to resolve conflicts between policy objectives (rule‐compromise discretion).